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The Burdens of Public Justification: Constructivism, Contractualism, and Publicity

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The Burdens of Public Justification: Constructivism, Contractualism, and Publicity politics,philosophy & economics article © SAGE Publications Ltd London Thousand Oaks, CA and New Delhi 1470-594X 200702 6(1) 5–43 The burdens of public justification: constructivism, contractualism, and publicity Samuel Freeman University of Pennsylvania, USA abstract The publicity of a moral conception is a central idea in Kantian and contractarian moral theory. Publicity carries the idea of general acceptability of principles through to social relations. Without publicity of its moral principles, the intuitive attractiveness of the contractarian ideal seems diminished. For it means that moral principles cannot serve as principles of practical reasoning and justification among free and equal persons. This article discusses the role of the publicity assumption in Rawls’s and Scanlon’s contractualism. I contend that a regard for publicity and a moral conception’s potential to provide a public basis for justification and agreement account for much of the evolution of Rawls’s account of justice after A Theory of Justice. I also discuss whether contractualism can provide a basis for justification and general agreement under the social conditions that it endorses. I contend that it cannot, and conclude with a discussion showing why this should not be a problem for contractualism. Despite appearances, contractualism is a distinctive form of contractarianism, substantially different from Rawls’s position and the social contract tradition out of which it evolved. keywords contractarianism, contractualism, John Rawls, public justification, T.M. Scanlon, justice The publicity of a moral conception is a central idea in Kantian and contractarian moral theory. Publicity carries the idea of general acceptability of principles through to social relations. When satisfied by a contract conception, publicity shows that it is within human capacities to live together according to principles acceptable to all reasonable persons. Otherwise, general acceptability and agree- DOI: 10.1177/1470594X07073003 Samuel Freeman is Steven F. Goldstone Endowed Term Professor of Philosophy and Law, University of Pennsylvania, USA [email: [email protected]] 5 politics, philosophy & economics 6(1) ment is an unobtainable ideal, satisfiable only at the theoretical level of hypo- thetical moral agents. It might still be important, but without publicity the intu- itive attractiveness of the contractarian ideal as an account of justice and other moral principles seems diminished. For among other things, the feasibility and stability of a fully public moral conception means that the moral principles that should structure and regulate social and political relations are both within human reach and are capable of serving reasonable agents as principles of practical reasoning, and public justification and criticism. Publicity has two significant consequences when satisfied by a moral concep- tion. First, moral agents can know the real reasons for moral constraints and expectations and can apply these reasons to plan their actions and pursuits. Moral grounds for action need not be occluded in individual deliberations. This is crucial to a person being a fully responsible moral agent. It is also essential to self-knowledge, knowing significant social influences on the kind of person one is. For Kantian and Marxian views, full publicity is a precondition of moral and rational autonomy. Second, their publicity gives moral principles a social func- tion: a community of agents can rely on moral principles as a shared basis for dis- cussion, argument, and agreement. They can then assess and criticize actions and institutions using shared criteria, and justify them to one another, when they are justifiable, on the basis of reasons all accept. This connects with the idea of mutual respect in the relations of fully responsible agents. Without the publicity of ultimate principles and other justifying reasons, justification (where it obtains at all) is incomplete. Public discussion is then susceptible to manipulation by emotionally persuasive rhetoric and appeals to biases and interests that are all too familiar in contemporary political life. Even worse, agents may be prone to general illusions about their social life, with no one in a position to discern why moral relations are as they are. The publicity requirement then raises the question of whether the basic reasons and principles a moral conception advances can be relied upon in individual deliberation and in public argument and justification. It examines whether these reasons and principles are within human reach, and suited to our capacities for understanding, judgment, motivation, and action. The initial focus in this article is the role of publicity in John Rawls’s con- structivism. I contend that a regard for publicity and a moral conception’s poten- tial to provide a public basis for justification and agreement account for much of the evolution of Rawls’s account of justice after A Theory of Justice. I contend that a helpful way to understand Rawls’s transition to Political Liberalism is to see it as a response to the tensions Rawls discovered between his dual aims of the full publicity and public justification of a moral conception of justice. In the second half of this article, I focus on the role of publicity in T.M. Scanlon’s moral contractualism. Contractualism also seeks public principles to provide ‘a basis for general agreement’. A natural question is whether it is sub- ject to tensions similar to those confronted by Rawls. I contend that, if we see the 6 Freeman: The burdens of public justification publicity or moral principles as full or complete within a well-ordered contractu- alist society, contractualism encounters similar problems. This raises a question as to whether contractualism can provide a basis for justification and general agreement under the social conditions that it endorses. If it cannot, is this a problem for contractualism? I suggest ways that the failure of its full publicity should not be regarded as problematic given contractualism’s distinct aims: despite appearances, contractualism is a distinctive form of contractarianism, substantially different from Rawls’s position and the social contract tradition out of which it evolved. 1. Constructivism: political, moral, and metaphysical Generally, constructivism in ethics addresses a traditionally metaphysical ques- tion regarding the possibility and nature of moral truth or similar standards of correctness (‘reasonableness’ for Rawls or ‘universal validity’ in Kant). As opposed to moral realism, constructivism denies that moral statements corre- spond to antecedent moral facts or to a realm of values that are prior to and inde- pendent of practical reasoning. As opposed to moral skepticism, which denies moral truths and objective standards of correctness, constructivism affirms that there are truth conditions for moral statements. Finally, as opposed to relativistic conceptions of moral truth (in cultural relativism, social constructivism, and some forms of communitarianism) moral constructivism affirms a universal conception of moral objectivity and applies fundamental moral principles to all persons capable of understanding moral requirements. There are different kinds of moral constructivism, but all have in common the idea that moral principles are correct (true, reasonable, universally valid, and so on) when they are the outcome of a deliberative procedure that incorporates all the relevant requirements of correct reasoning.1 In this regard, constructivism affords priority to the objectivity of judgment in determining moral truth: moral truths are the judgments that would be made by correctly reasoning from an objective point of view, which is a deliberative procedure incorporating all relevant requirements of practical reasoning. By contrast, realism reverses this priority and explains objectivity of judgments in terms of their satisfying the conditions needed for ascertaining prior moral truths. In this regard, moral con- structivism rejects moral realism’s basic claim that morally true or correct judg- ments represent (in some manner) moral facts or moral principles that are prior to anyone’s practical reasoning and judgment. Apart from reasoning in terms of the deliberative procedure for constructing moral principles ‘there are no moral facts’ Rawls says.2 There are different ways to develop constructivism in ethics depending upon the design of constructivist procedures and the requirements deemed relevant to practical reasoning. Hobbesian contractarians incorporate a conception of practi- cal reason as individual utility maximization along with a conception of human 7 politics, philosophy & economics 6(1) nature as largely self-focused and indifferent to others. John Harsanyi’s utili- tarian choice procedure relies also upon a utility-maximizing account of practi- cal rationality, which is conjoined with a thin veil of ignorance and a Bayesian equiprobability assumption which insures equal consideration of everyone’s interests. T.M. Scanlon’s contractualism eschews utility maximization; his con- tractors have interests to protect, but their primary motivation is to justify them- selves to others on terms all can reasonably accept. In Rawls’s Lectures on the History of Moral Philosophy, he interprets Kant’s categorical imperative as a non-contractarian constructivist procedure that assesses the validity of the rules (‘maxims’) that are implicit in rational actions. Finally, for Rawls himself, among the ‘relevant requirements
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