Ethical and Aesthetical Dimensions
Edited By António Marques and João Sàágua
The essays presented here are the outcome of research carried out by members of IFILNOVA (Institute for Philosophy of New University of Lisbon) in 2016.
The IFILNOVA Permanent Seminar seeks to show how values are relevant to humans (both socially and individually). This seminar is the ‘place’ where different research will converge towards a unified viewpoint. This includes the discussion of the following questions: What is the philosophical contribution to current affairs and decisions that depend crucially on values? Can philosophy make a difference, namely by bringing practical reason to bear on these affairs and decision? And how to do it? Which are our scientific ‘allies’ in this enterprise; psychology, communication sciences, even sociology and history?
This volume shows the connection between practical rationality and values and covers the dimensions ethics, aesthetics and politics.
Some notes on Rawls’ critique of Kant’s comprehensive moral philosophy (António Marques)
‘Justice as fairness is a theory of our moral sentiments as manifested by our considered judgments in reflective equilibrium.’ (John Rawls, A Theory of Justice, 20, 120)
One of the most striking features of the Rawlsian theory of justice developed in his late work is expressed in the claim that it is a political theory and not a kind of religious, metaphysical or moral doctrine. One may think that in the whole of his work Rawls maintains the same central idea, expressed in the following terms: ‘Since there is no reasonable religious, philosophical, or moral doctrine the affirmed by all citizens, the conceptions of justice affirmed in a well ordered society must be a conception limited to what I shall call “the domain of the political” and its values’1. Nevertheless this is a statement that seems to contradict much of explicit argument developed in his A Theory of Justice (TJ), where typically moral values, such as equality and self-respect are defined as most important primary goods. In fact as soon as one looks at the formulation of the first principle, which proposes an equal distribution of liberty, it seems that we are facing a theory based upon moral maxims and an egalitarian stance about moral values. But at the same ← 121 | 122 → time, in his 80s and 90s writings Rawls dismisses such qualification and claims that a correct conception of justice must avoid any confusion with other conceptions of the world of the kind mentioned above. In this context the confrontation with the moral and political philosophy of Kant is of central importance. It is not a overstatement the claim that it is just this confrontation that allows Rawls to design his theory as a political construction and to differentiate it from perhaps the strongest moral philosophy, that is the practical philosophy of Kant. In what follows I´ll insist in the notion that Rawls’ political philosophy contains moral grounding elements, despite his defense of a pure procedural method without any comprehensive element and claim that Kant´s moral philosophy not only doesn’t ground his own political philosophy, but also that it is not a constructivism of the sort Rawls claims it is2.
In order to understand the Rawls argumentation about the political nature of his theory and the correspondent critique of comprehensive doctrines, one needs to clarify the primacy of politics over morals in the period of PL. This is only possible if we first evaluate the moral status of his early theory. So let’s first briefly consider the qualification of egalitarianism to Rawl’s theory, which seems to be evident or unproblematic if applied to the first principle of his A Theory of Justice (TJ), precisely the equality principle of justice3. It is a fact that though Rawls defends the priority of the principle of equal liberty, he considers also instances of unequal liberty without violation of the first principle. But typically situations of unequal liberty show up for the sake of liberty itself, since precedence of liberty means that liberty can be restricted only for the sake of liberty itself’ (Rawls 1996: 39, 244). It is interesting that Rawls justifies eventual situations of unequal liberty with a formulation derived from the principle of difference. He remarks in the same passage of TJ that ‘basic liberties may either be less extensive though still equal, ← 122 | 123 → or they may be unequal. If liberty is less extensive, the representative citizen must find this a gain for his freedom on balance; and if liberty is unequal, the freedom of those with lesser liberty must be better secured. In both instances the justification proceeds by reference to the whole system of the equal liberties’. Anyway the second principle, by contrast with the first one, doesn’t seem to pose questions in relation to equality and comprehensive issues, just because in it what is at stake is that the differences among individuals are justified if the distribution of socio-economic goods don’t damage the expectations of the worst off. Anyway, as it has been remarked, inequality or even growing inequality is not incompatible with the fulfillment of those expectations4.
Coming back to the theory of justice as a political theory without moral grounds, the question is if it simply operates as a procedural method by which equal and free citizens agree on certain principles of justice. Allegedly Rawls doesn’t introduce moral intuitions in his theory, that is, features, which typically belong to what he calls ‘comprehensive’ elements. By ‘comprehensive’ doctrines Rawls understands those that operate with moral, religious or some kind of metaphysical values. From the point of view of a theory of justice a comprehensive conception is to be avoided, since it is not a conception of forms of life or of the most important virtues that should determine our whole existence. A theory of justice is, say, an austere political conception of the principles and avoids to be overloaded by any sort of metaphysical, religious or moral elements.
In what follows we have to take into consideration, first the characterization of the original position (OP) as a device of procedural justice that on Rawl’s view should not integrate any moral intuition, second the interpretation of Kant’s moral philosophy as a moral constructivism. As already mentioned neither the justice as fairness is exempt of moral ← 123 | 124 → intuitions, nor Kant’s moral is constructivist at least in the way Rawls understands it.
To the first point, as it is well known, Rawls’ theory begins by presenting a situation (OP), where reasonable individuals choice principles in order to a just distribution of what he calls a set of ‘primary goods’. What is required to the parts is a capacity of rational choice, subjected to certain rules of impartiality (veil of ignorance), and a sense of justice in order to fairly distribute those goods. In that position persons under reasonable or fair conditions will select certain principles of justice. As mentioned above it is largely accepted that in the original position individuals don’t operate with any moral intuitions whatsoever. The fact that the parties have a capacity or sense of justice5 doesn’t mean that they are motivated by moral convictions, that is, a real comprehensive understanding of society and its values6.
Nevertheless Rawls sees the parts in the original position as possessing a sense of justice and the inclusion of such a sense in the structure of rational choice. So a correct description of the OP seems to contradict a picture that represents it completely deprived of comprehensive moral motivations. The question is whether in the real process of designing the institutions of justice, the sense of justice starts to work only after the identification of the principles. This is a basic problem that deserves going deeper in it. Referring explicitly to the central place of the sense of justice, Rawls says that it shows itself in two ways. ‘First, it leads us to accept the just institutions that apply to us and from which we and our associates have benefited’ and secondly, ← 124 | 125 → ‘a sense of justice gives rise to a willingness to work for (or at least not to oppose the setting up of just institutions’ (Rawls 1973: 72, 474). So there is no doubt that the sense of justice is a fundamental force in the building and preservation of just institutions. Furthermore it seems that it is when individuals act against the principles of justice, the process of full moral development begins, namely it is when persons violate some rule directly tied to the principles that moral feelings as guilty, shame or repentance show up: ‘When we go against our sense of justice we explain our feelings of guilt by reference to the principles of justice … The complete moral development has now taken place and for the first time we experience feelings of guilt in the strict sense; and the same is true of the other moral emotions’ (Rawls 1973: 72, 474).
The main idea here is that moral feelings and moral life in general takes form by reference to the principles of justice what enforces the conception of an OP including ‘sense of justice’, despite the absence of its moral content (Rawls 1996: 97). Rawls makes the point that individuals develop their moral forces just because they coincide with the content of the principles of justice, which is the same to say that these ones don’t have a logical and chronological primacy over moral principles. ‘Individuals in their role as citizens with a full understanding of the content of the principles of justice may be moved to act upon them largely because of their bonds to particular persons and an attachment to their own society’ (Rawls 1973: 475; my italics). So on must recognize that in the TJ the question about the moral content of the principles is not so much an ambiguous one, just because individuals are defined as moral persons. It is clear that in the initial situation I represent myself and the others as moral persons with a sense of justice. Nevertheless in PL he insists that the theory is not comprehensive and repeatedly vindicates and emphasizes the status of its unique political not moral characteristic. It is not without saying that Rawls is totally aware of the difficulty of conceiving persons (the kind of persons in the OP) who at the same are not entitled with any moral or metaphysical powers7. ← 125 | 126 →
In order to accomplish the aim of designing a well-ordered powers should be only political, and this is what is necessary for individuals to operate in the OP. So from a political point of view, persons in order to operate in the OP are enough entitled with freedom: citizens are conceived as thinking of themselves as free in three respects: first as having the moral power to have a conception of the good, second as self-authenticated sources of valid claims, that is, claims on their institutions, and third as they view themselves and the other as capable of taking responsibility for their ends (Rawls 1996: 29-33). These are political capacities that are supposed to be exempt of any comprehensive element.
The question now consists in making this assumption compatible with the idea of a pure procedural conception of justice, which characterizes the OP and its nature as it is clearly assumed in the later PL. A procedural method means first of all that no fundamental principles or set of principles are established as the starting and fixed moment of a theory. If the TJ is set upon a procedural stance, then confusion with any kind of comprehensive doctrines is avoided just because in this procedural move there is no fixed metaphysical elements. In both, TJ and PL Rawls refers to the OP as ‘a case of procedural justice’ distinguished from a ‘perfect procedural justice’. The last one is commonly illustrated by the division of a cake, in which the concerned individuals are required to divide a cake without knowing the order of choice. Under this procedure an outcome is generated, which is just, whatever the outcome may be. Pure procedural justice is different in the sense that the parties don’t specify from the beginning any set of principles and they arrive to a deliberation by measuring the all reasons in balance. What guides their deliberation is the consideration of mutual interests in a situation of reciprocal action. Furthermore guidance by mutual interest expresses a contractualist agreement or a justified mutual agreement, to which Rawls refers to as a ‘reflective equilibrium’. This state is achieved as far as no one has enough reasonable reasons to reject the other’s justified point of view. It is not always clear whether a reflexive equilibrium state is negotiated among parts, but at least there is reciprocal consideration of points of view. Accordingly Rawls states that justice as fairness is not procedurally neutral.
This is a view that can be shared by another contractualist authors, namely Thomas Scanlon who proposes a contractarian perspective of ← 126 | 127 → wrong and right, which is structured upon the principal idea that what is good is what can be justified to others on grounds that they, if appropriately motivated, could not reasonably reject’8. What is relevant in this notion is that all points of view are articulated in a whole on the basis of a reasonable justified motivation. The moral life in this scanlonian perspective is a permanent process of reciprocal and interactive reasonable justification. This is very near of the structure of the OP, but in the case of Scanlon his contractualism doesn’t exclude a central moral motivation.
Rawls conceives a pure procedural method on the basis of a reflexive equilibrium, in which each personal point of view reaches an agreement with all concerned individuals based in rational justification. Only then it is possible to represent a real, not utopic consensus, which Rawls refers to as an overlapping one. Only then it is also possible to conceive a true contractualist agreement without the threat of comprehensive elements. Seemingly all this conceptual structure that integrates the OP (perhaps one should clarify the differences between the TJ and PL in respect the OP, but this is particular hermeneutical task that cannot be carried out here) operates only at a political level and in his late writings Rawls designates such dynamic conceptual network, whose unique aim is to formulates the principles of justice, as a ‘constructivism’.
This leads us to the discussion of Kant’s moral philosophy. In fact, as already mentioned, the best point of view to get a clear perspective of the place of the moral element in Rawls philosophy would be the discussion of Kant’s philosophy as a ‘moral constructivism’ in the terms of Rawls himself. In his view the contrast between his political constructivism and that of Kant’s moral is the right standpoint to evaluate the role, if any, of the moral element in the original position. When we use the word ‘constructivism’ applied to a theory or doctrine what do we ← 127 | 128 → mean by that? What kind of description of that doctrine are we pointing to? In Kant the starting moment of his moral system is the proof of the existence of a moral law, the ‘fact of reason’ as the first grounding act of practical rationality. And if one proceeds rightly from that initial moment, subjects can build a system of rights, duties and virtues, which is the object of the second part of his ‘Doctrine of Virtues’ exposed in his last systematic work on the foundations of law and morality, The Metaphysic of Morals. It seems that it is in this sense it would be fair to qualify or at least to refer to a sort of constructivism in Kant’s morals. Another problem consists in saying that it can endorse a political constructivism, to which we’ll refer to later.
In fact, with special emphasis in PL, Rawls sees the Kantian moral philosophy as a moral constructivism, from which his own political philosophy clearly separates itself. In this work he states that the first difference is that Kant’s practical philosophy is comprehensive since it is based upon an ideal of autonomy ‘for all life’ (Rawls 1996: 99). As a deeper meaning of ‘autonomy’ it is meant that the order of moral and political values are made or constituted by the work of practical reason. However this conception of autonomy of practical reason doesn’t give the basis of justification for a genuine ‘public basis of justification’ (Rawls 1996: 99)9, since it seems to dispense each person to enter in agreement with other. In Rawls words, Kant’s constructivism ‘is deeper and goes to the very existence and constitution of the order of values. This is part of his transcendental idealism’ and adds that ‘Political Liberalism must, of course reject Kant’s constitutive autonomy; yet his moral constructivism can endorse political constructivism as far as it goes’ (Rawls 1996: 100). Anyway the Kantian fact of reason and the correspondent ‘constitutive autonomy’ of the moral person cannot be considered an adequate starting ground to the genuine political constructivism, without any comprehensive intrusion. ← 128 | 129 →
At this point of the Rawlsian argumentation, one has to ask if there is such a thing as a moral constructivism in Kant and if there is, if it corresponds to that kind of constructivism claimed by Rawls. Furthermore, if the answer is negative, one must ask if the kind of moral constructivism that Kant offers us with, ‘can endorse political constructivism’. As far as Rawls associates the notion of constructivism with other elements of justice as fairness, like ‘pure procedural justice’, ‘reflexive equilibrium’ and ‘overlapping consensus’, a constructivist method is generated by practical rationality and provides a set of grounding criteria or procedures for the set up of a ranked network of values and institutions, what he calls the ‘basic structure’ of a society, like the constitution and some other fundamental institutions. In fact one must say that there is a kind of a constructivist method in late Kant’s moral philosophy, but not the kind of one that claimed by Rawls10. Assuming that any constructivism starts from some first material to other concepts and rules, these are not to be inferred from the former. In Kant’s view construction is a movement of the reason, either theoretical or practical, that proceeds by synthetic amplification. Under his understanding of practical reason this would be an a priori amplification, in the sense that one proceeds from some basic geometrical structure and goes on adding other properties that are nor simple deducible from the initial material. In the case of moral practical reason, the first structure is the existence of a self-coercive moral internal law, which corresponds to the very concept of duty. This is the initial and starting point to the construction of other a priori figures of duty, that Kant pretends to amplify in a network of what he calls a ‘doctrine of virtue’. So he notes that ‘the principle of the doctrine of virtue goes beyond the concept of outer freedom and connects with it, in accordance with universal laws, an end that it makes a duty. This principle is therefore synthetic’ (Kant 1996a: 526, Ak. 6: 396)11. It is ← 129 | 130 → interesting how Kant understands duties as so many ends that can and must be balanced one against each other. But there we stand on a domain clearly separated from the political one. Kantian moral constructivism, as it can be understood in The Metaphysics of Morals, doesn’t cross whatsoever or contribute to the first principles of a just society or of a state of law. As it is well known the grounding moment of a political society from Kant’s contractualist point of view doesn’t require any moral powers of the citizens, but only an intelligent choice of coexistence principles. Kantian contractualism has a mere political basis and is of a more Hobbesian sort than it is generally thought. As he famously states in his essay on perpetual peace ‘the problem of establishing a state, no matter how hard it may sound, is soluble even for a nation of devils (if only they have understanding) … Such problem must be soluble. For the problem is not the moral improvement of human beings but only the mechanism of nature, and what the task requires one to know is how this can be put to use in human beings in order so to arrange the conflict of their unpeaceable dispositions…’ (Kant 1996b: 335, Ak. 8: 366). This Hobbesian statement means also that in Kant´s political philosophy the boundaries between moral and philosophy are pretty clear and that if one wants to design some articulation between both domains, it must be made taking into account that neither morals grounds politics, nor the last one grounds the former. This is an important reminder for anyone (as Rawls), who claims for a political philosophy without comprehensive interferences. Kant made the same claim but at the end his track leaded him to a place quite near of Hobbes.
Freeman, Samuel (2007). Rawls. London: Routledge.
____ (1996b). Toward Perpetual Peace: A Philosophical Project, in Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant. Cambridge: Cambridge University Press.
Nagel, Thomas (2003). ‘Rawls and Liberalism’, in Freeman, Samuel (ed.), The Cambridge Companion to Rawls. Cambridge: Cambridge University Press
O’Neill, Onora (2003). ‘Constructivism in Rawls and Kant’, in Freeman, Samuel (ed.), The Cambridge Companion to Rawls. Cambridge: Cambridge University Press.
____ (2004). ‘Constructivism vs Contractualism’, in Stratton-Lake, Philip (ed.), On What We Owe to Each Other. Oxford: Blackwell.
Rawls, John (1973). A Theory of Justice. Oxford: Oxford University Press.
____ (1996). Political Liberalism: New York: Columbia University Press.
Scanlon, Thomas (2000). What We Owe to Each Other. Harvard: Harvard University Press.
Watson, Anthony (2015). Inequality: What can be done? Harvard: Harvard University Press.
1 Rawls (1996: 199, 38). In our view the Rawlsian understanding and criticism of Kant´s moral philosophy as a kind of constructivism is critical in PL, not so much in A Theory of Justice. The rejection of the Kantian moral philosophy in PL, labelled as comprehensive doctrine, is in sharp contrast with the place that is reserved to the former in his early work. By this move Rawls intends to give an entire political status to theory, since only the agreement on political principles can solve conflicting comprehensive views inside a pluralist society. ‘The fact of a plurality of reasonable but incompatible comprehensive doctrines – the fact of reasonable pluralism – shows that. As used in Theory, the idea of a well-ordered society as fairness is unrealistic’ (Rawls 1996: xix).
2 Of course many philosophers have noted the difficulty related to the moral or political status of Rawls’ theory. For example Bernard Williams says that ‘the supposedly political conception, then, is still a moral conception, one that is applied to a certain matter under certain constraints of content’ (Williams 2005: 2).
3 In Rawls (1973: 86, 60-1), the first statement of both principles reads: ‘First: each person to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all’.
4 Watson (2015) makes the following point: ‘The “Rawlsian” position of favouring the least advantage may sound quite radical. However it is not far removed from the statements of politicians who argue for income tax cuts on the basis that these would stimulate economic activity and hence increase revenue that could be used to raise the incomes of the poorest among us. As this argument illustrates, there is nothing intrinsically egalitarian about the Rawlsian objective?’ (Watson 2015: 13).
5 Rawls (1973: 86, 567-577; 1996: 19). In the same passage of PL, Rawls refers to ‘two moral powers’: sense of justice, that is the capacity to understand, to apply, and to act from the public conception of justice and a capacity for a conception of the good.
6 Samuel Freeman comments at this point: ‘In the original position they (the parties) are not moved by moral considerations (e.g. to do what is just or fair, or make a morally right decision) or by benevolence toward other parties; nor are they directly concerned with other’s developing their capacities for justice except in so far as it benefits themselves. They are uninterested’ in that they are indifferent to one another under these extraordinary circumstances of choice in the original position’ (Freeman 2007: 168). Interestingly, Thomas Nagel characterizes both principles in the following terms: ‘The first principle is a principle of strict equality, and the second a principle of permissible inequality’ (Nagel 2003: 66).
7 Rawls (1996: 29): ‘I remarked earlier that the idea of the original position and the description of the parties may tempt us to think that a metaphysical doctrine of the person is presupposed (…) To rebut claims of this nature requires discussing them in detail and showing that they have no foothold. I cannot do that here’.
8 Scanlon (2000: 5). Scanlon is aware that he needs go deeper in his notion of reasonable justification that no one could reject. This implies substantive judgments and claims made in specific practical situations. See Scanlon (2000: Ch. 5). Furthermore in the words of Scanlon, ‘This gives us a direct reason to be concerned with other people’s point of view: not because we might, for all we know, actually be them, or because we might occupy their position in some other possible world, but in order to find principles that they, as well as we, have reasons to accept’ (Scanlon 2000: 191).
9 In his ‘Reply to Habermas’, Rawls refers to the notion of ‘public justification’ as the existence of an overlapping consensus in a society where reasonable citizens, embedded in different comprehensive views, can ‘judge from within their reasonable comprehensive doctrines that political values are very great values to be realized in the framework of their political and social existence, ans a shared public life on terms that all reasonable parties may reasonable be expected to endorse’ (Rawls 1996: 393).
10 Onora O’Neill remarks that ‘it is far from clear that Rawls’s fundamental strategy of justification is Kantian. Like Kant, Rawls does not appeal to individual preferences, or to a notional hypothetical social contract, or to an independent order of moral values. But unlike Kant, Rawls basic approach to justification is apparently coherentist’ (O’Neill 2004: 23).
11 In this work Kant presents what can be seen as a complete scheme of duties of virtues, in fact the outcome of his synthetic method, which starts from internal law of duty to a net work of ‘virtues of duty’.