Social Justice After Kant: Between Constructivism and Deconstruction (Rawls, Habermas, Levinas, Derrida)

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Social Justice after Kant: Between Constructivism and Deconstruction (Rawls, Habermas, Levinas, Derrida)

Miriam Bankovsky

This thesis is submitted to the School of History and Philosophy at the University of New South Wales in fulfilment of the requirements of a PhD in Philosophy

September 2008

PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname: Bankovsky

First name: Miriam Other name/s: Ann

Abbreviation for degree as given in the University calendar: PhD

School: History and Philosophy Faculty: Arts

Title: Social Justice after Kant: Between Constructivism and Deconstruction (Rawls, Habermas, Levinas, Derrida)

Abstract 350 words maximum: (PLEASE TYPE)

In this thesis, I examine the relation between two contrasting approaches to justice: the constructive and reconstructive projects of Rawls and Habermas, on the one hand, and the deconstructive projects of Levinas and Derrida, on the other. I pursue this task in two stages. First, reconstructing each philosopher’s account of justice as it develops in relation to Kant’s practical philosophy, I identify the central difference between the two approaches. I then argue that each project complements the other.

Whilst Rawls and Habermas emphasise the possibility of objectively realising Kant’s idea of an impartial standpoint among autonomous persons, Levinas and Derrida defend the impossibility of determining the content of justice. Rawls and Habermas subscribe to the “art of the possible”, rendering Kant’s impartial standpoint by means of the “original position” (Rawls) or the “procedures of discourse ethics” (Habermas). By contrast, Levinas argues for justice’s failure, discovering, in Kant’s moral law, a principle of responsibility for the particular other which conflicts with impartiality. Distinguishing himself from both the reconstructive tradition and Levinas, Derrida affirms, in part through his readings of Kant, the “undecidability” of the critical function of justice. Committed to the possibility of justice, Derrida also acknowledges its impossibility: no local determination can reconcile responsibility before the other with impartiality among all.

Having identified the central difference between the traditions, I then defend their complementarity. “Reasonable faith” with respect to justice’s possibility must be supplemented by the acknowledgment of its impossibility. Conversely, any analysis which attests to the failure of justice surrenders its critical function when it is not complemented by faith in the possibility of constructing new and better social forms. Arguing that each tradition must supplement the other, I distance myself from the prevailing liberal critique whereby deconstruction withdraws from the political (Habermas, Fraser, McCarthy, Benhabib, Gutmann), and instead add my voice to a dissenting group (Young, Cornell, Mouffe, Honig, Honneth, Patton, Thomassen), which affirms that deconstruction can be brought to bear in productive ways on the constructive tradition. Deconstruction is at home in Rawls’ view that “the ideal of a just constitution is always something to be worked toward”.

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iii

Acknowledgments

First of all, I warmly thank my two supervisors, Paul Patton and Catherine Malabou, above all for their philosophical counsel, expertise, and sound criticism. Paul’s ability to explicitly underline an argument which I had not fully verbalised was my single most valuable resource during these last months. Moreover, Catherine’s intellectual and personal generosity during my time at Paris X-Nanterre allowed me to develop my position with confidence. I am also very grateful to both for their complete commitment to assisting me with the many headaches involved with the cotutelle. Simply put, I could not have completed this PhD without them.

To my family – my parents Barbara and Yanek, my brother Damien and my niece Hiraani – thank you for your absolute love, understanding, friendship and good humour, and for always having provided me with every possible opportunity.

To my lovin’ man, Sean Bowden, for your company, for making me laugh and for putting “a new coat of paint on this lonesome old town”. I have also appreciated your practical sense (and cooking!) during the years which went into this thesis, as well as your calming influence and much needed support during the last few months. I dedicate my thesis to you.

To Mister Marc Jones. Thank you for willingly and generously assuming the arduous task of proof-reading this entire manuscript with your expert eye. No longer will I confuse “that” with “which”.

My thanks also goes to those who, in addition to my supervisors, had a formative influence on my work: to Christian Lazzeri for his lectures on Rawls and recognition, his feedback on my essays, and his generous support; to Paula Keating for her spontaneous philosophical understanding and our many discussions of Kant and Rawls; to Ros Diprose, for her lectures on Levinas and her assistance with my work; to Jack Reynolds for facilitating the move from undergraduate to postgraduate; to Craig Browne for the experience as research assistant; to Claudia Gutiérrez for our many philosophical discussions and for her down-to-earth friendship; to Sotiria Liakaki for our reading group and her feedback on my work; to Sandra Field for her help, early on, with Kant’s philosophy of right; to Lisa Guenther for her hospitality in Montreal; to Alexandra Bourré, Hervé Bruneau, Céline Gaille, Philippe Lagadec, Peggy Bertaux, Thierry Aimar, Florentin Roche, and Christopher Hamel for their “conseils linguistiques”; to Alice Le Goff, Marie Garrau and Claire Pagès for the doctoral activities at Paris X-Nanterre; and to those with whom I shared a room at different stages of my PhD: Sarah Rice, Paula Keating, and Sandra Field. Grateful thanks also to those who helped out administratively: to Ros Diprose, Damian Grace and Mina Roces, as post-graduate coordinators at UNSW; to Marie Tourn at Université de Paris X- Nanterre; to the GRS staff at UNSW for keeping the ball rolling; and to Virginie Pierrepont at Egide. Continued over the page…

Acknowledgments (continued…)

I also thank those whose friendships I enjoyed during my thesis. Thanks, most of all, to Sean Bowden, again, and also to Paula Keating, Kirsty Gillespie, Prachi Jain, Kim Huynh, William Tse and Ranmalee Eramudagolla. To my friends in France, je vous embrasse très fort: Stéphane Grangier, Estelle Béréau, Anna Clark, Hervé Bruneau, Sotiria Liakaki, Claudia Gutiérrez and Gustavo, Marc Jones, Myriam Suriam, Philippe Lagadec, Anthony Cordingly, and Céline Gaille. I singularly acknowledge Alexandra Bourré for her friendship and for the support which she extended so generously in many different ways.

I also acknowledge the resources and financial assistance which I have received during my PhD. Thanks to the University of New South Wales for a PhD scholarship and access to resources; to the French Embassy in Australia for a one year scholarship and a cotutelle travel grant; to the French Ministry of Foreign and European Affairs for an Eiffel PhD scholarship; and to the French Ministry of Higher Education and Research, along with the research centre Sociologie, philosophie et anthropologie politiques, for an international travel grant.

Some of the material included in sections of this thesis has been or is to be published elsewhere: “Social Justice: Defending Rawls’ Theory of Justice against Honneth’s Objections”, Philosophy & Social Criticism 35 (2009): forthcoming. “La Justice sociale: défendre Rawls contre les objections de Honneth”, Le Temps philosophique: La reconnaissance (2008): forthcoming. “Judaizing Ethical Politics: Levinas, Difficult Freedom and the Messianic City”, in Re-ethnicizing the Minds? Cultural Revival in Contemporary Thought, ed. Thorsten Botz-Bornstein and Jürgen Hengelbrock (New York: Rodopi, 2006), 357-378. “Derrida brings Levinas to Kant: The Welcome, Ethics and Cosmopolitical Law”, Philosophy Today 49, no. 2 (2005): 156-170. “A thread of knots: Jacques Derrida’s Homage to Emmanuel Levinas’ Ethics”, Invisible Culture 8 (2004), 1-19.

Table of Contents

Acknowledgments iv

Introduction Social Justice after Kant: Between Constructivism and Deconstruction 1

Chapter One The Early Rawls: Kantian Autonomy and the Idea of an Acceptable Public Viewpoint 34 1.1 The “real force” of Kant’s thinking: criteria for justice 37 1.1.1 Legislation for a realm of ends: publicity 39 1.1.2 The ideal of the person: free, equal, rational and cooperative 40 1.1.3 The Categorical Imperative: necessity not contingency 48 1.1.4 The principles 53 1.2 A further criterion: feasibility requirements 54 1.2.1 Constructivism and coherency requirements 54 1.2.2 Constructivism and the Kantian ideal of the person 56 1.3 A final criterion: stability 62 1.4 The critical function of justice as fairness 63

Chapter Two The Early Habermas: A Procedural Interpretation of Kant’s Moral Standpoint 68 2.1 Reformulating Kant on reason and interest: reason as interested 71 2.1.1 Kant’s publicity principle: “generalisable interests” 74 2.1.2 The “pure interest”: the principle for reason’s exercise in action 82 2.1.3 The interest of reason’s exercise: action-coordination 85 2.2 Reformulating the CI procedure: determining the “generalised interest” 89 2.3 Habermas and the early Rawls 96

Chapter Three Political Liberalism, Deliberative Democracy and the Impartial Standpoint 103 3.1 Habermas’ criticisms of Political Liberalism 106 3.1.1 The impartial standpoint 107 3.1.1.1 Political constructivism 108 3.1.1.2 Stability: overlapping consensus 112 3.1.1.3 The Reasonable and the Rational 115 3.1.1.4 Public reason 118 3.1.1.5 Rawls’ response: the criteria of political constructivism 122

vi 3.1.2 Justification or mere acceptance? 124 3.1.3 Individual liberty and popular sovereignty: a mutual or conflictual relation? 126 3.2 Rawls’ criticisms of deliberative democracy 130 3.2.1 The discourse-theoretic approach: a comprehensive doctrine 131 3.2.1.1 Three forms of practical reason: the role of law 131 3.2.1.2 De facto versus legitimate law 134 3.2.1.3 A comprehensive version of legitimacy 136 3.2.2 The “ideal speech situation”: for political and non-political life 138 3.3 United: the “art of the possible” 139

Chapter Four Levinas’ Kant: The Irreducibility of Ethical Responsibility to Impartial Procedure 141 4.1 “Taking on the fate of the Other”: a non-formal conception of ethics 143 4.1.1 Obligation as dis-interest: the disruption of self-interest 145 4.1.2 The primacy of the practical interest in the Other: the “fact of reason” 151 4.1.3 The “ought”: non-formal necessity 154 4.1.4 Lyotard: A pragmatics of obligation 158 4.2 Liberal-democratic justice: the “for-the-other” of the social 161 4.2.1 Non-formal obligation and the principle of equity 162 4.2.2 The standard: the sufferings of Others 166 4.3 The failure of justice 168

Chapter Five Derrida on Justice: Intervening to Improve the Tradition 175 5.1 Justice as deconstruction: intervention 177 5.1.1 The early texts: prefacing the later concerns 177 5.1.2 The force of law and justice: responsibility for our tradition 184 5.2 Deconstructive practice: interventions into Kant’s texts 189 5.2.1 Kant’s treaty: apocalyptical without apocalypse 191 5.2.2 Kant on friendship: the conflict between benevolence and respect 200 5.2.3 Hospitality: beyond expectations and subject to law 203 5.2.4 The regulative Idea: im/possible 209 5.3 Deconstruction in political contexts: critiquing the Security Council veto 212

Chapter Six Defending the Constructive Moment against Levinas 220 6.1 Habermas’ impartial standpoint: the transgression of asymmetrical responsibility 223 6.1.1 The participant and observer perspectives: mutually imbricated? 225 6.1.2 The precondition for communication: the intention of consensus? 229 6.1.3 The moral principle: fully intersubjective? 233 6.1.4 The discourse principle: a guarantee of fairness? 235 6.2 The necessity of the constructive moment 236

vii 6.3 Rawls’ ideal of moral personhood: implied by the Third 240 6.3.1 Responsibility for the Third and the virtue of the Reasonable 242 6.3.2 Minimal conditions of mental and physical health 245 6.3.3 Wide reflective equilibrium: an ideal to be pursued 247 6.4 Committing to the “art of the possible” 249

Chapter Seven Between Constructivism and Deconstruction: “Reasonable Faith” in the Possibility of Justice 251 7.1 Deconstruction and the “art of the possible” 253 7.1.1 Deconstruction: not opposed to the impartial standpoint 253 7.1.2 Deconstruction: not exhausted by the constructive moment 257 7.2 The content of deliberative democracy: open to contestation in principle 261 7.2.1 Individual autonomy: an absolute limit to deliberative outcomes 262 7.2.2 On the im/possibility of a universal pragmatics 264 7.2.2.1 Rational consensus: empirically implausible 265 7.2.2.2 Rational consensus: conceptually impossible 268 7.2.3 Rethinking the status of deliberative democracy 272 7.3 The content of political liberalism: open to contestation in principle 277 7.3.1 The priority of liberty 279 7.3.2 The undecidability of the original position procedure 283 7.3.2.1 The duty to comply in Theory: acceptable and unacceptable injustices 285 7.3.2.2 Compliance in Political Liberalism: the undecidability of the political values 291 7.4 Celebrating perfectibility: the condition of justice’s critical function 300

Concluding Remarks 307

References 315

viii Introduction

Social Justice after Kant: Between Constructivism and Deconstruction

Political philosophy assumes the role Kant gave to philosophy generally; the defence of reasonable faith… in our case, this becomes the defence of reasonable faith in the possibility of a just constitutional regime. Rawls, Political Liberalism, 172, emphasis added.

Justice is the experience of the impossible. A will, a desire, a demand for justice, whose structure wouldn’t be an experience of aporia, would have no chance to be what it is, namely, a just call for justice. Derrida, “Force of Law”, 244, translation modified.

The problem and the argument

In this thesis, I set myself the problem of examining the relation between two contrasting accounts of social justice, namely, the constructive and reconstructive projects of Rawls and Habermas,1 on the one hand, and the deconstructive projects of Levinas and Derrida, on the other.

These four accounts of justice affirm a common reference point: Kant’s practical philosophy. However, Kant’s moral and political philosophy plays a very different role in each philosopher’s work. I take this shared reference to Kant as a starting point for the task of determining the relation between constructive, reconstructive and deconstructive justice.

1 Rawls uses the adjective “constructivist” rather than constructive and Habermas tends to prefer “reconstructionist” to “reconstructive”. However, for the sake of elegance and simplicity, I will often use the adjectives “constructive”, “reconstructive” and “deconstructive”.

1 The thesis pursues its problem in two stages. In a first stage, by reconstructing each philosopher’s respective account of justice, as it develops in confrontation with Kant’s practical philosophy, I will identify the nature of the central difference between the approaches. In a second stage, I will argue that each project complements the other.

Whilst Rawls and Habermas emphasise the possibility of objectively determining the content of Kant’s idea of autonomy and its associated idea of an impartial, public standpoint among autonomous moral persons, Levinas and Derrida argue for the impossibility of objectively determining the content of justice. This, I will suggest, is the central difference between the two approaches. In Theory, Rawls claims to interpret Kant’s impartial standpoint by the original position procedure from which two principles of justice are derived.2 Moreover, despite some important changes to his theory, Rawls continues to hold, in Political Liberalism, that an overlapping consensus on certain political values and, more specifically, constitutional essentials, is both possible and necessary. Although he effectively concedes that the gross coercion to enforce justice as fairness on comprehensive liberal grounds would effectively invalidate it as an acceptable public viewpoint, he nonetheless maintains that the impartial standpoint can be objectively interpreted and realised in public institutions. This is why I claim that Rawls subscribes to the “art of the possible”.3

Habermas, too, affirms that Kant’s ideas of autonomy and impartiality between moral persons can be interpreted and realised. Reconstructing the presuppositions of consensually-oriented discourse, Habermas defends, first, the necessity and universality of a principle of universalisation (U), which interprets the practical intent of Kant’s moral principle. (U) requires that all those affected by a contested norm be able to freely accept the consequences which it will have for the satisfaction of their own interests and

2 “Kant supposes that this moral legislation is to be agreed to under conditions that characterize men as free and equal rational beings. The description of the original position is an attempt to interpret this conception”. John Rawls, A Theory of Justice (Cambridge, MA: The Belknap Press of Harvard University Press, 1971), 252. See also John Rawls, A Theory of Justice. Revised Edition (Oxford: Oxford University Press, 1999), 221. As is customary, I will provide page numbers for both the original and revised editions. For example: Rawls, Theory, 252/221 rev. 3 John Rawls, “The Domain of the Political and Overlapping Consensus”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 473-496 at 486.

2 those of others.4 Next, he defends a procedural principle (D) to which all argumentative practices concerning the validity of norms are subjected, deriving this procedure from the principle of universalisation. (D) requires that “only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse”.5 When all those affected by a contested norm are granted symmetrical communication rights to participate in will-formation through argument, when coercion is eliminated and when participants are sincere and truthful, the norm on which participants agree can be said to satisfy the impartial standpoint. Habermas thus claims, like Rawls, that Kant’s conception of impartiality among autonomous individuals can be exhaustively represented, this time by the satisfaction of the procedures of discourse ethics. Habermas subscribes, with Rawls, to the “art of the possible”.

In contrast to this optimism, Levinas insists on the non-equivalence of non-formal ethical responsibility for another particular person, on the one hand, and the ideal of impartiality, on the other. The very ideal of impartiality always fails to satisfy ethical responsibilities. Levinas’ rather un-Kantian interpretation of Kant’s moral principle points to the moral relevance of the incomprehensibility of “moral feeling” in Kant’s system. Moral feeling, at once rational and empirical, attests to an experience which cannot be reduced to one’s own comprehension. Dissimulated in Kant’s account of moral feeling, Levinas discovers an account of ethical responsibility for the particular other person. Consequently, since justice introduces the principle of formal equality and the standpoint of formal impartiality, Levinas insists that justice cannot but fail to satisfy the non-formal ethical obligations which ground its necessity. This is why I claim that Levinas subscribes to the “art of the impossible”.

Distinguishing himself from both Rawls and Habermas, who emphasise the possibility of determining the content of Kant’s idea of an acceptable public viewpoint, and Levinas, who insists on the impossibility of satisfying ethics by means of impartiality, Derrida draws attention to the undecidability of justice. On the one hand, he recognises

4 Principle (U): “All affected can freely accept the consequences and the side-effects that the general observance of a controversial norm can be expected to have for the satisfaction of interests of each individual”. Jürgen Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge, MA: The MIT Press, 1990), 93. 5 Ibid., 93.

3 that, without actually engaging in the task of substantively and procedurally determining principles and decisions by reference to the idea of justice, justice cannot be done in the present. I thus argue that Derrida commits to the value of impartiality. On the other hand, he also provides reasons to support the view that no local determination can ever resolve the two conflicting demands which the concept of justice includes, namely, responsibility before the other in the particular and impartiality among all. His analyses of Kant’s texts affirm both the possibility and impossibility of determining the content of justice. Derrida thereby defends justice’s possibility while demanding responsibility for the forms of justice’s inevitable failure. Justice is possible, but it is not reducible to its historically determined forms, which is why I claim that Derrida accentuates the undecidable status of justice’s determination.

After identifying, in this way, the central difference between the approaches, I will then demonstrate, in a second stage, that each project requires, and can indeed be said to complement, the other. The “art of the possible”, to which constructivism and reconstructivism subscribe, cannot be pursued without attention to the pragmatic implications of a deconstructive account which also emphasises the impossibility of exhausting justice’s demands in the form of laws, procedures and principles. Conversely, I will suggest that the deconstructive account indeed requires the pursuit of the very pragmatic strategies which the constructivist and reconstructivist defends. More particularly, it implies a commitment to an ideal of the moral person, no longer as a unique particular in the Levinasian sense, but as a person symmetrically defined as a bearer of those capacities which enable the assumption of an impartial standpoint. Although neither project can be said to complete or perfect the other, each one nevertheless requires, and indeed implicitly affirms, its opposite. If we are to be able to work toward justice in a constructive manner, we must attest to the need for “reasonable faith in the possibility of a just constitutional regime”.6 However, in so doing, we should not overlook the fact that justice is not exhausted by its determinations.

Why the problem is worth consideration

6 John Rawls, Political Liberalism with A New Introduction and the “Reply to Habermas” (New York: Columbia University Press, 1996), 172, emphasis added.

4 The problem of the relation between constructive and reconstructive justice, on one hand, and deconstructive justice, on the other, is not often the object of study. The goals, styles and vocabulary of the two traditions are very different, and this makes the task particularly difficult to pursue. Richard Bernstein is certainly not the only one to remark that the attempt to relate the one project to the other initially appears equivalent to “crossing an unbridgeable chasm”. 7 This thesis will argue that although neither project can be reconciled with the other, the chasm between the two traditions is not unbridgeable. There exist real possibilities to productively engage the one with the other.

I have three main reasons for thinking the problem worthy of consideration. My first two reasons concern what I view to be the limits of each tradition. Firstly, emphasising the “impossibility” of justice is distinctly unsatisfying and risks surrendering its critical potential. The extreme frustration which even sympathetic readers of Levinas experience is, in my view, completely warranted. On the one hand, like the Socratic gadfly who goads the great and noble steed into action, 8 emphasising justice’s inevitable failure can provoke a certain vigilance with respect to justice’s determined forms. However, when the analysis only argues for the inadequacy of justice itself, without distinguishing between better and worse forms of failure, such vigilance compromises its critical potential. If we do not assume that we can justify, to each other, certain principles and procedures over others, we cannot even begin to create a society which can be endorsed by each one of its members. This social ideal does appear to us to be worth pursuing. The defence of impossibility is of little value without assuming the possibility of constructing new and better forms of justice. To defend this possibility is to pursue the constructive or reconstructive moment. It is to affirm, with Kant, Rawls and Habermas, the necessity of “reasonable faith” in the possibility of a just constitutional regime”.9 In a moment of rare lyricism, Rawls reiterates Kant’s

7 Richard Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida”, in The Derrida- Habermas Reader, ed. Lasse Thomassen (Chicago: The University of Chicago Press, 2006), 71-97 at 80. It is worth noting that Bernstein goes on to argue that, although irreconcilable, reconstructivism and deconstruction can together account for the “force-field” which constitutes the modern/post-modern condition (93). 8 Plato, The Collected Dialogues, trans. Lane Cooper, ed. Edith Hamilton and Huntington Cairns (Princeton: Princeton University Press, 2005), 28b-32e. 9 Rawls, Political Liberalism, 172, emphasis added.

5 apologetic defence of justice’s possibility, suggesting that to concede that justice is not possible leaves us wondering whether life itself is worthwhile: If a reasonably just society which subordinates power to its aims is not possible and people are largely amoral, if not incurably cynical and self-centred, one might ask with Kant whether it is worthwhile for human beings to live on the earth?10

Put simply, we cannot pursue the ideal of justice, in our lives as citizens, without assuming its possibility.

In this sense, my first reason for considering the problem of the relation between constructivism and reconstructivism, on the one hand, and deconstruction, on the other, is the conviction that emphasising justice’s “impossibility” must be supplemented by the commitment to its possibility and to all that such a commitment entails. “Reasonable faith” in the possibility of justice is, I suggest, implied by Levinas’ later account of responsibility for both the Other and the Third. Moreover, it is explicitly affirmed by Derrida’s presentation of justice as im/possible. However, I do not believe that either man fully recognises what such commitment entails. Faith with respect to justice’s “possibility” implies the commitment to an ideal of the person, not simply as a unique particular, but also as a moral person in the Rawlsian and Habermasian sense, that is, as a bearer of those capacities which enable the person to take up the impartial standpoint. Responsibility, I will suggest, is also responsibility before symmetrically defined moral persons and not simply before the Other in the particular. Moreover, once we acknowledge that deconstruction demands commitment to the value of impartiality, over and above the defence of the particularity of the person, we can undertake a deconstructive analysis of Rawls’ and Habermas’ texts on their own terms. Levinas obscures this opportunity by insisting on the impossibility of justice. Although Derrida opens up this opportunity by emphasising both possibility and impossibility, his own textual interventions, while powerfully evocative, are not concretely grounded in a detailed understanding of contemporary, liberal democratic theory.

Conversely, exploring the relation between constructive, reconstructive and deconstructive justice also allows us to identify the reasons why, in the absence of further qualification, the emphasis on the “possibility” of justice produces its own

10 Ibid., lxii.

6 difficulties. In Rawls’ and Habermas’ later work, it becomes all too clear that neither philosopher actually believes that justice can be achieved in the present. Perfect justice, states Rawls, is an ideal “to be worked toward”.11 A constitution is “not perfectly just, as no human institution can be that”.12 Consequently, Rawls recognises that we, the citizens who take up the impartial standpoint, must acknowledge that its content remains open to contestation, in principle. It remains possible, in principle, to re-enter the original position “at any time”.13 In a similar manner, Habermas, too, concedes that, if actually achieved, rational consensus would render further communication unnecessary. Quoting Albert Wellmer, he writes: Even if the ideal reference points are understood as aims that are not attainable in principle, or attainable only approximately, it remains “paradoxical that we would be obliged to strive for the realisation of an ideal whose realisation would be the end of human history”.14

By adding the procedural condition that participants affirm that their consensus remains open to contestation in principle, Habermas effectively defers, to a future moment, the conceptual reconciliation of the freedom of the moral person, as a distinct individual, with the freedom of all, as moral equals. He thereby concedes that a fully rational consensus cannot be achieved in any actual present.

Thus, my second reason for considering the problem of the relation between the two traditions is the conviction that emphasising justice’s “possibility” must be supplemented by the affirmation of its “impossibility”. Both Rawls and Habermas implicitly concede that justice remains structurally “to come” in the Derridean sense. However, as in the previous case, neither man fully recognises what their concession entails. Neither acknowledge that justice can only sustain its critical function for the present if it is not exhaustively determined in that present. Faced with the essential possibility of new social groups, changing problems and the transformation of considered reflections, the concept of justice maintains its critical potential only when it

11 John Rawls, “Reply to Habermas”, in Political Liberalism with A New Introduction and the “Reply to Habermas” (New York: Columbia University Press, 1996), 372-434 at 401. 12 Ibid., 429. 13 “I use the idea of the original position as a natural and vivid way to convey the kind of reasoning the parties may engage in…We can enter it at any time”. John Rawls, Justice as Fairness: A Restatement, 86 (Cambridge, MA: The Belknap Press of Harvard University Press, 2001), 86. 14 Jürgen Habermas, On the Pragmatics of Communication, trans. Maeve Cooke (Cambridge, MA: The MIT Press, 1990), 365, emphasis added. He is quoting Albrecht Wellmer’s Endgames: Essays and Lectures on the Irreconcilable Nature of Modernity, trans. David Midgley (Cambridge, MA: The MIT Press, 1998), 141.

7 allows for its essential modification. This means, however, that the gap between the actual and the possible must be affirmed as essential to the very concept of justice itself, the condition by which justice retains its critical function in relation to the various attempts to determine it. Were justice to be fully equivalent to the outcomes of either Rawls’ original position procedure or Habermas’ discourse ethics procedure, such outcomes would be neither revisable, nor contestable. In other words, justice can be deployed as a critical tool in the present precisely because its determined forms do not exhaust the ideal. Reasonable faith with respect to justice’s possibility needs to be balanced by the affirmation of its impossibility.

I suggested, in the above paragraph, that the gap between the actual and the possible must be affirmed as the condition by virtue of which justice retains its critical function in relation to the various attempts to determine it. Now, to some extent, Rawls comes to acknowledge this point when he presents political philosophy as “utopian”. In Justice as Fairness: A Restatement, he acknowledges that “the limits of the possible are not given by the actual, for we can, to a greater or less extent, change political and social institutions, and much else”.15 He believes that political liberalism is “realistically utopian” in that it “prob[es] the limits of practicable political possibility”.16 He decides not to pursue the “deep question” of the extent to which the “possible” should be given by the “actual”.17 With Drucilla Cornell, I believe that this decision is unfortunate because it prevents Rawls from taking up the implications of his own acknowledgement and leads him to overemphasise the need to identify justice with those established norms which can be affirmed in an overlapping consensus. To affirm the constitutive gap between the actual and the possible as essential to the concept of justice itself is to acknowledge the essential transformability and perfectibility of the actual. As Cornell writes, by keeping open the essential possibility of determining justice in view of as yet unimaginable possibilities, deconstructive justice is “more utopian”.18

A careful consideration of the limits of each project, and the relation between them, will, I suggest, yield productive results for both parties. The constructive and

15 Rawls, Justice as Fairness: A Restatement, 5. 16 Ibid., 4. 17 Ibid., 5. 18 Drucilla Cornell, The Philosophy of the Limit (London: Routledge, 1992), 182.

8 reconstructive emphasis of the “possibility” of justice needs to be supplemented by the deconstructive attestation of the “impossibility” of justice, and vice versa.

These first two reasons for thinking it worthwhile to examine the relation between the reconstructive and deconstructive traditions effectively turn on what I see as the limitations of each tradition, considered in isolation of the other. I have a further reason for pursing the question. I do not think that the history of the consideration of this problem is, in general, satisfactory. Prevalent among political philosophers working in the liberal Kantian tradition is the view that deconstruction is incapable of rationally defending one political position over another. Conversely, equally prevalent among those sympathetic to deconstruction is the view that deconstruction serves as an antithesis to normative justice and can be productively pursued either by a politics of revolution or by a practice of analysis which uncovers the impossibility of political normativity.

I will analyse each position more closely in subsequent paragraphs. However, I would like to state my own view, immediately. Both views should be rejected. Neither view acknowledges that deconstruction subscribes to the essential premise of the reconstructive approach, attesting not merely to the impossibility of justice but also to its possibility. Moreover, neither position remarks upon the fact that the reconstructive tradition itself comes to concede that justice cannot be realised in any present. In other words, each account of the relation between deconstructive and reconstructive justice overlooks the complementarity of the projects. It is this complementarity which I will defend.

By reconsidering the problem of the relation between the two traditions, I wish to add my support to a growing body of dissident voices who have argued, over the years, that deconstruction is relevant to the reconstructive tradition. Although these dissidents rarely agree on the precise nature of deconstruction’s political relevance, referring in each case to very different aspects of Derrida’s early or later writings, their voices are nonetheless unified by the belief that deconstruction can be brought to bear, in productive ways, on the reconstructive tradition which Rawls and Habermas defend. After explaining why the prevailing liberal dismissal of deconstruction cannot be

9 sustained and, conversely, why deconstruction should not be defended as the antithesis of normativity, I will situate my own thesis in relation to some of the arguments which have been developed by these dissenting few, highlighting that the differences between reconstruction and deconstruction are not as unbridgeable as they may initially appear. By pursing the constitutive gap between the actual and the possible, deconstruction can productively be brought to bear on a reconstructive tradition which implicitly assumes not only the possibility of justice but also its impossibility.

Within the Kantian tradition of political philosophy, deconstruction is usually rejected for the reason that it reveals all position-taking to be ultimately groundless. Distancing themselves from Derrida’s early work, prominent Kantian liberals such as Habermas, Nancy Fraser, Thomas McCarthy, Seyla Benhabib and Amy Gutmann, among others, have defended the view that deconstruction reduces every conceptual difference to a contingent play of force.19 In so doing, deconstruction denies itself the resources needed to rationally defend one political position over another. Consequently, politics, which requires such rational defence, cannot be pursued as a meaningful project.

Habermas himself first took this line in the 1980’s, cursorily rejecting deconstruction as incapable of pursuing any form of rational argumentation. His book, The Philosophical Discourse of Modernity, professes to defend reason from its radical critique by contemporary French philosophy, dealing directly with Derrida’s early thought in a chapter entitled “Levelling the Genre Distinction between Philosophy and Literature”.20

19 This early interpretation continues to define the prevailing view among prominent contemporary political philosophers. It has been defended, more recently, by such writers as Richard Wolin, Mark Lilla, James Bohman, and Charles Taylor, to mention just a few. See Wolin’s defence of this criticism in The Seduction of Unreason (Princeton: Princeton University Press, 2004), 233. Lilla writes that “deconstruction throws doubt on every political principle of the Western philosophical tradition” and “cannot provide any aim for political action”. Mark Lilla, The Reckless Mind: Intellectuals in Politics (New York: New York Review of Books, 2001), 179 and 183-184. For James Bohman, deconstruction equates to “anti-politics”. He writes, “Derrida’s critique of “logocentrism”, begins with a criticism of reason itself rather than the social facts” and constitutes a “failed attempt to denounce and to transcend politics”. James Bohman, “The Politics of Modern Reason: Politics, Anti-Politics and Norms in Continental Philosophy”, The Monist 82, no. 2 (1999): 235-253 at 239. Charles Taylor states his opposition to “subjectivist, half-baked neo-Nietzschean theories”. “Deriving frequently from Foucault or Derrida, they claim that all judgments of worth are based on standards that are ultimately imposed by and further entrench structures of power”. Taylor thinks that “this is hardly a satisfactory solution”. Charles Taylor, “The Politics of Recognition”, in Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann (Princeton: Princeton University Press, 1994), 25-74 at 70. 20 Jürgen Habermas, “On Leveling the Genre Distinction between Philosophy and Literature”, in The Philosophical Discourse of Modernity, trans. Frederick Lawrence (Oxford: Blackwell, 1990), 184-210.

10 Here, Habermas argues that Derrida reduces the linguistic function to persuasion and rhetoric, denying the very possibility of rational argumentation. “Derrida”, Habermas writes, “does not belong to those philosophers who like to argue”.21 Derrida effectively neglects language’s capacity to carry the weight of validity claims oriented toward mutual understanding.22 In a first step, Habermas professes his support for Adorno’s faith in reason’s capacity to perform its own critique. With Adorno, Habermas thinks that the self-critique of reason, that is, the critique of reason by rational argument, gets caught in performative contradiction, since the critique is undertaken with reason’s own tools. Reason’s self-critique thereby re-confirms its own validity. Next, Habermas claims that Derrida does not share Adorno’s or his own faith in reason’s ability to perform its own critique. Recognising that he cannot critique reason with its own tools without engaging in performative contradiction, Derrida chooses an evasive strategy, refusing to assess texts via discursive argumentation and instead assessing them aesthetically.23 Deconstruction thereby avoids performative contradiction by levelling the distinction between philosophical argument and literary rhetoric, assessing philosophy in terms of its capacity to rhetorically persuade rather than rationally convince. Habermas concludes that this negative strategy “robs” philosophy of its productivity, relieving it “of the duty of solving problems”.24 Habermas himself defines moral personhood by the capacity to engage in consensually-oriented discourse or argumentation and, consequently, he does not believe that philosophers like Levinas and Derrida, who deny the possibility of rational consensus, can contribute anything useful to the debate.25

21 Ibid., 193. 22 “Derrida neglects the potential for negation inherent in the validity basis of action oriented toward reaching understanding; he permits the capacity to solve problems to disappear behind the world-creating capacity of language; the former capacity is possessed by language as the medium through which those acting communicatively get involved in relations to the world whenever they agree with one another about something in the objective world, in their common social world, or in the subjective worlds to which each has privileged access”. Ibid., 205. 23 “Derrida wants to expand the sovereignty of rhetoric over the realm of the logical in order to solve the problem confronting the totalising critique of reason… He does not place himself in lordly fashion above the objection of pragmatic inconsistency, but renders it objectless…” And again, “the deconstruction of great philosophical texts, carried out as literary criticism in this broader sense, is not subject to the criteria of problem-solving, purely cognitive undertakings. Hence, Derrida undercuts the very problem that Adorno acknowledged as unavoidable…” Ibid., 188. 24 Ibid., 210. 25 While it is true that from the late 90’s onwards, the relations between Derrida and Habermas took a turn for the better, agreeing to co-sign a text defending Europe as a vehicle for international cooperation, and sharing concerns with economic and social inequality, terrorism, and immigration, Derrida and Habermas nevertheless continue to differ on key points, as will become clear in the chapters which follow. See their

Nancy Fraser takes up a similar position in “The French Derrideans: Politicizing Deconstruction or Deconstructing the Political?”,26 the first of two articles on the subject. Writing against the background of Derrida’s early unwillingness to deal either with the political implications of deconstruction or with the efforts of others to fill this gap, Fraser argues that Derrida effectively refuses to defend one position over another. She supports this view by citing Derrida’s own refusal to choose between the two contrasting political orientations to which he gives voice in the concluding sections of “The Ends of Man”.27 In the latter piece, Derrida had suggested that deconstruction could lend itself either to an apocalyptic and revolutionary political orientation, 28 or to an anti-apocalyptic politics of resistance, deploying the normative concepts of a particular tradition so as to reformulate and reorienting tradition itself.29 Refusing to choose between these contrasting political orientations, Derrida instead pursues a different strategy. Fraser claims that Derrida, along with Jean-Luc Nancy and Philippe Lacoue-Labarthe, instead pursues a distinctly Heideggerian project, interrogating the very condition of possibility of the political (le politique), which, according to Fraser, is consistently presented, in Derrida’s early work, as a contingent play of force. This strategy, however, does not debate the opponent on the latter’s own political terms, that is, in terms of their differences at the level of politics (la politique).30 She writes that, co-signed text, “February 15, or What Binds Europeans Together: A Plea for a Common Foreign Policy, Beginning in the Core of Europe”, trans. Max Pensky, in The Derrida-Habermas Reader, ed. by Lasse Thomassen (Chicago: The University of Chicago Press, 2006), 270-277. See also their later comments on each other’s work: Jacques Derrida, “Honesty of Thought”, trans. Marion Hill, in The Derrida-Habermas Reader, ed. Lasse Thomassen (Chicago: The University of Chicago Press, 2006), 300-306; and Jürgen Habermas, “A Last Farewell”, trans. Marion Hill, in The Derrida-Habermas Reader, ed. Lasse Thomassen (Chicago: The University of Chicago Press, 2006), 307-308. 26 Nancy Fraser, “The French Derrideans: Politicizing Deconstruction or Deconstructing the Political?” New German Critique 33 (1984): 127-154. 27 See “The Ends of Man”, in Jacques Derrida, Margins of Philosophy, trans. Alan Bass (Chicago: The University of Chicago Press, 1982), 109-136. Originally published in 1972. 28 Deconstruction equates to “a radical trembling [which] can come only from the outside… and which takes place in the violent relationship of the whole of the West to its other”, a “change of terrain”. Ibid., 134-135. 29 Deconstruction “attempt[s] an exit… without changing terrain, by repeating what is implicit in the founding concepts and the original problematic, by using against the edifice the instruments or stones available in the house…” Ibid., 135. 30 It is important to note that the distinction which Fraser here draws between le politique (the conditions of possibility of the political) and la politique (differences at the level of politics) originates in the work of Heidegger, not Derrida. Jean-Luc Nancy and Philippe Lacoue-Labarthe believe that the distinction is implied by Derrida’s account of deconstructive analysis, which can be said to focus on the former rather than the latter. However, Derrida himself does not refer to his own project in such terms. For further details on Lacoue-Labarthe’s and Nancy’s Heideggerian interpretation of Derrida’s project, see Simon Critchley, “Re-Tracing the Political: Politics and Community in the Work of Philippe Lacoue-Labarthe

12 “Together, these themes comprise a decision to replace the project of politicizing deconstruction with the project of deconstructing the political”.31 “There is one sort of difference which deconstruction cannot tolerate: namely, difference as dispute, as good, old-fashioned, political fight”.32 Deconstruction, for Fraser, cannot defend any position over another and, thus, cannot produce effects in political theory.

Fraser’s second article, “The Force of Law: Metaphysical or Political?”,33 responds to one of Derrida’s first efforts to address political concepts in “Force of Law: The ‘Mystical Foundation of Authority’ ”.34 Despite Derrida’s own commitment in this article to the need to contest concrete and empirical forms of violence, Fraser unfortunately pursues the same argument presented in her preceding article. She argues, first, that Derrida distinguishes between two different ways of thinking about the relations between violence and law. The first critique, which Fraser calls “political” and “empirical”, exposes the ideological nature of law, showing how it operates in the service of forces which are essentially transformable. The second critique, which Fraser calls “quasi-transcendental”, seeks instead to expose the condition of possibility for the law’s authority, namely, violence without ground. Fraser then states that deconstruction privileges the latter over the former. It effectively leaves empirical forms of violence unchallenged by shifting attention, instead, to the irreducible, quasi-transcendental violence of lawful determination itself. Faced with the problem of the authority of political normativity, Derrida prioritises the wrong strategy and thereby retreats from the political. Concluding that deconstructive critique cannot itself generate any normative political position, Fraser suggests that we need to move beyond the deconstruction of the political so as to deal with the concrete problem of political normativity.

Responding, with Habermas and Fraser, to Derrida’s early work, Thomas McCarthy, Seyla Benhabib and Amy Gutmann defend much the same position. Like Fraser, and Jean-Luc Nancy”, in The Political Subject of Violence, eds. David Campbell and Michael Dillon (Manchester: Manchester University Press, 1993), 73-83 at 74. 31 Fraser, “The French Derrideans: Politicizing Deconstruction or Deconstructing the Political?”, 137. 32 Ibid., 142. 33 Nancy Fraser, “The Force of Law: Metaphysical or Political?” Cardozo Law Review 13 (1991-1992): 1325-1331. 34 Jacques Derrida, “Force of Law: The “Mystical Foundation of Authority” ”, trans. Mary Quaintance, in Acts of Religion, ed. Gil Anidjar (New York, London: Routledge, 2002), 228-298.

13 McCarthy believes that deconstruction withdraws from the specificity of “empirical social research” and retreats to a sort of mysticism which is “at best an airy abstraction”.35 Politics implies a commitment, on the part of its users, to the values of impartiality and equality, and it thus requires the “reconstructive moment” which “is not in evidence” in Derrida’s work.36 In a similar tone, Benhabib suggests that if philosophers like Derrida and Lyotard really want to defend forms of association in which differences are aired, considered and included in the public sphere, then Habermas’ deliberative democracy is more suited to their goal. Both Lyotard and Derrida ignore the normative content of the democratic tradition, a content which can indeed be used to critique present injustices.37 Gutmann’s view is more bluntly stated: “deconstructionists… view common standards as masks for the will to political power of dominant hegemonic groups”.38 Gutmann claims this leads to their being unable to actually use the standard of impartiality to contest domination itself. And yet, she states, this standard is the single most effective means for such contestation.

It is my view that this prevailing liberal dismissal of deconstruction should not be accepted. It does not acknowledge that deconstruction indeed subscribes to the essential premise of the constructive and reconstructive approaches, emphasising not merely the impossibility of justice but also its possibility. One plausible reason for this lack is that the liberal critique was originally formulated against the background of Derrida’s early refusal to deal either with the political implications of deconstruction or with the efforts of others to politicise deconstruction.39 In this sense, Fraser is correct to point out that he initially refused to choose between the various political strategies which were

35 Thomas McCarthy, “The Politics of the Ineffable: Derrida’s Deconstructionism”, in Ideals and Illusions: On Reconstruction and Deconstruction in Critical Theory (Cambridge, MA: MIT Press, 1993), 97-120 and 229-234 at 115 and 116. 36 Ibid., 232. 37 Seyla Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida” and “Afterword”, in The Derrida-Habermas Reader, ed. Lasse Thomassen (Chicago: The University of Chicago Press, 2006), 128-156 at 145-146. 38 Amy Gutmann, “Introduction”, in Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann (Princeton: Princeton University Press, 1994), 3-24 at 18, see also 18-21. 39 See Paul Patton’s consideration of some of the reasons why the first two decades of deconstruction were characterised by an absence of any explicit connections between the conceptual politics of deconstruction and the overtly political subjects and concepts with which Rawls and Habermas deal. Patton argues that the reasons for Derrida’s reticence to engage with political philosophy should be sought in his relationship with the French intellectual left and the local context in which his thought developed during the 1960’s. Paul Patton, “Derrida’s Engagement with Political Philosophy”, in Histories of Postmodernism, eds. Mark Bevir, Jill Hargis and Sara Rushing (New York: Routledge, 2007), 149-169 at 149-154.

14 available to him. Although, in the context of Derrida’s early work, the criticism certainly contains a grain of truth, it is no longer tenable. Derrida’s later writings deal concretely and practically with some of the most pressing social and political issues of our day. Put simply, Derrida does defend certain normative positions over others, arguing against the death penalty, defending the “future” of the Western family and, with it, new reproductive technologies, 40 critiquing the distinction between human and animal in the discourse of right,41 and wholeheartedly defending the freedom of speech against censorship and the tyranny of the “politically correct”.42 Moreover, Derrida defends the right to asylum,43 affirms both the value and limits of democracy’s principle of numerical equality,44 voices the need for international institutions with effective coercive power to enforce their decisions,45 and, with Habermas, sees the potential for Europe to play a leading role within a new constellation of international institutions.46 In the face of these overtly political writings, the liberal criticism of deconstruction’s inability to defend one political position over another cannot be sustained.

40 Jacques Derrida and Elisabeth Roudinesco, “Disordered Families”, in For What Tomorrow… A Dialogue, trans. Jeff Fort (Stanford, California: Stanford University Press, 2004), 33-46. 41 Jacques Derrida and Elisabeth Roudinesco, “Violence Against Animals”, in For What Tomorrow… A Dialogue, trans. Jeff Fort (Stanford, California: Stanford University Press, 2004), 62-76. 42 Derrida’s defence of free speech against the tyranny of social opinion and censorship is astoundingly similar to John Stuart Mill’s defence of individuality as an element of well-being. Derrida appears, here, to agree with Mill that social opinions concerning “correctness” or “incorrectness” inevitably browbeat people with stock formulas and wooden language, preventing critical thought, sometimes creating a microclimate of terror and of paranoia, sometimes creating a climate of unperturbed conviction. See Jacques Derrida and Elisabeth Roudinesco, “Politics of Difference”, in For What Tomorrow… A Dialogue, trans. Jeff Fort (Stanford, California: Stanford University Press, 2004), 20-32; and Jacques Derrida and Elisabeth Roudinesco, “Of the Anti-Semitism to Come”, in For What Tomorrow… A Dialogue, trans. Jeff Fort (Stanford, California: Stanford University Press, 2004), 106-138. See also John Stuart Mill, “Introductory” and “Of Individuality as One of the Elements of Well-Being”, in “On Liberty” and Other Writings, ed. Stephan Collini (Cambridge: Cambridge University Press, 1989), 5-18 and 56-74. 43 Jacques Derrida, Cosmopolites de tous les pays, encore un effort! (Paris: Editions Galilée, 1997), 12- 14; and Jacques Derrida and Penelope Deutscher, “Hospitality, Perfectibility, Responsibility”, in Jacques Derrida: Deconstruction Engaged. The Sydney Seminars, ed. Paul Patton and Terry Smith (Champaign Ill.: The University of Illinois Press, 2001), 93-105 at 100-101. 44 Jacques Derrida, Rogues: Two Essays on Reason, trans. Pascale-Anne Brault and Michael Naas (Stanford: Stanford University Press, 2005), in particular 33-34. 45 See, in particular, “The Last of the Rogue States” and “(No) More Rogue States”. Ibid., 78-94 and 95- 107. 46 Derrida and Habermas, “February 15, or What Binds Europeans Together: A Plea for a Common Foreign Policy, Beginning in the Core of Europe”. See also Jacques Derrida, The Other Heading: Reflections on Today’s Europe, trans. Pascale-Anne Brault and Michael Naas (Bloomington: Indiana University Press, 1992); and Jacques Derrida, “D’où vient l’Europe?” In Penser l'Europe à ses frontières (Paris: Editions de l’Aube, 1993).

15 The later Derrida’s overtly political writings indicate that deconstructive interrogation does not favour a “quasi-transcendental” analysis of the irreducibility of violence over a “political” critique of “empirical” violences, which are essentially transformable, as Fraser, McCarthy, Benhabib and Gutmann maintain. Nor does deconstruction renounce reason, as we saw Habermas claim. As Richard Bernstein writes, “this is a slander. It is not what [Derrida] is doing when he analyses the complex interplay of logic and rhetoric”.47 Axel Honneth, too, states that such criticism is misplaced, pointing out that Habermas’ early interpretation of deconstruction “had a very damaging effect and placed the Franco-German relation under the heading irrationality versus rationality… a fruitless dualism” which brought with it “a certain and still growing underestimation of the French tradition”.48 I will argue that deconstruction does not dismiss reason but rather, as Derrida puts it, interrogates “its meaning, its origin, its goal, [and] its limits” 49 in precise, and more or less determined, contexts. Invoking reason itself, Derrida engages in an interventionist pragmatics of analysis which attempts to identify the particular nature of the undecidability which has been determined in particular ways within a socio-historical horizon. Undecidability, Derrida later insists, is not some vague ineffable “indeterminacy”, or contingent play of force, as McCarthy and Fraser claim.50 Rather, it is “a determinate oscillation between possibilities”, distinct possibilities which are themselves “highly determined in strictly defined situations”.51 Taking Derrida seriously when he claims that deconstruction “intervenes” to locate, in determined social and historical contexts, the precise nature of normative undecidability, I will reflect on the distinct ways in which both Habermas’ and Rawls’ theories of justice deal with the problem of undecidability. I will argue that deconstruction can help us to draw attention to the particular form which undecidability

47 Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida”, 90. Christopher Norris also argues that Derrida is committed to a certain ideal of reason in the Kantian tradition, one which takes seriously the conditions of possibility of rational argumentation. He thus argues that Habermas’ is wrong to dismiss Derrida as evasively refusing to assess texts via discursive argumentation and instead assessing them aesthetically. See Christopher Norris, “Deconstruction, Postmodernism and Philosophy: Habermas on Derrida”, in What’s Wrong with Postmodernism: Critical Theory and the Ends of Philosophy (New York: Harverster Wheatsheaf, 1990), 49-76. 48 Axel Honneth, “Philosophy in Germany”, Radical Philosophy 89 (1998): 27-39 at 34. 49 Jacques Derrida, “The Principle of Reason: The University in the Eyes of Its Pupils”, trans. Catherine Porter and Edwards Morris, Diacritics 19 (1983): 3-20 at 9-10. 50 For McCarthy’s view that deconstruction leads to the “ineffable”, see his aforementioned “The Politics of the Ineffable: Derrida’s Deconstructionism”. For Derrida’s denial that undecidability denotes vague indeterminacy, see Jacques Derrida, “Afterword: Toward an Ethic of Discussion”, in Limited Inc, trans. Samuel Weber (Evanston, IL: Northwestern University Press, 1988), 111-160 at 148. 51 Derrida, “Afterword: Toward an Ethic of Discussion”, 148.

16 takes in such contexts, calling on us (the users of public principles) to affirm responsibility for the systemic effects of undecidability’s determined forms. This responsibility entails precisely the commitment to the “political” and “empirical” critique which Fraser, McCarthy, Benhabib and Gutmann defend.

Furthermore, the prevailing liberal criticism does not remark upon the fact that the reconstructive tradition itself comes to concede the impossibility of ever achieving justice in the present. I insisted, in the preceding paragraphs, that Rawls and Habermas come to acknowledge that justice cannot be achieved in the present and that no human institution is ever perfectly just. This concession effectively draws both thinkers closer to the deconstructive notion that justice is always structurally “to come”. Reconsidering the relation between the two traditions can, I suggest, yield productive results for both projects.

Nor am I convinced by the early attempts, on the part of deconstructive sympathisers, to defend deconstruction as the antithesis of normativity. During the Colloque de Cérisy, which, in 1980, took Derrida’s work as its theme, a number of alternative views of the political implications of deconstruction were presented. In her own paper, Gayatri Chakravorty Spivak defends the second of the two strategies which Derrida raises for consideration in “The Ends of Man”, arguing that deconstruction can be concretised by a Marxist-style theory of revolution. Citing Derrida, Spivak claims that deconstruction equates to “a radical trembling [which] can come only from the outside… and which takes place in the violent relationship of the whole of the West to its other”, a “change of terrain”.52 The most important “political lesson” to be drawn from this idea is the responsibility “not to exclude the other term of a polarity”. 53 This requires a practice which “questions the very normative character of the institutions and disciplines in which and by which we live”.54 Such responsibility equates to a revolutionary politics

52 “The Ends of Man, in Derrida, Margins of Philosophy, 134-135. 53 Gayatri Chakravorty Spivak, “Il faut s’y prendre en s’en prenant à elles”, in Les fins de l’homme : à partir du travail de Jacques Derrida (Colloque de Cérisy, 23 juillet – 2 août 1980), eds. Philippe Lacoue- Labarthe et Jean-Luc Nancy (Paris : Editions Galilée, 1981), 505-515 at 506, my translation. 54 Ibid., 506, my translation.

17 which, by virtue of the “asymmetry” of its intervention, is capable of “turning towards women, the non-Western world, and the victims of capitalism”.55

Although Jean-Luc Nancy and Philippe Lacoue-Labarthe defend a different line of critique, they nonetheless agree that deconstruction is best pursued as the antithesis of normative justice. In their opinion, deconstruction pursues a deeper level of analysis, uncovering the conditions of possibility of the political itself. 56 This analysis reveals politics to be premised on force. No condition other than force itself can be said to ground political authority. Such analysis is useful, Lacoue-Labarthe and Nancy claim, because it provokes a critical vigilance with regard to the inevitable violence of the political.

The defence of deconstruction as the antithesis of normativity, practiced either by a politics of revolution (Spivak) or by deeper conceptual analysis (Lacoue-Labarthe and Nancy), is equally unconvincing. The view not only fails to recognise that deconstruction can and does take up positions which are distinctly normative and anti- revolutionary, it also effectively surrenders the very critical function which it ascribes to deconstructive analysis. If one insists that normativity is inevitably violent, one surrenders the very standards by which to critique actual norms. The constructive moment of both Derrida’s and Levinas’ work needs to be emphasised.

As with the prevailing liberal critique, the anti-normativity interpretation needs to be contextualised against the background of Derrida’s early reticence to engage with normative political concepts. While refusing to deal with political concepts and themes, Derrida’s early texts nonetheless assign an ethical resonance to his analyses. This

55 Ibid., 513, my translation. Dominick LaCapra, reading Derrida’s “Force of Law”, interprets Derrida in much the same way as Spivak, but sees a politics of revolution as something to be rejected, not affirmed. See Dominick LaCapra, “Violence, Justice and the Force of Law”, Cardozo Law Review 11 (1989-1990): 1065-1078. 56 See Nancy Fraser’s clear account of the arguments presented during the political panel at Cérisy and of her assessment of the success of the activities of the Centre de Recherche Philosophique sur le Politique. Fraser, “The French Derrideans: Politicizing Deconstruction or Deconstructing the Political?” See also Lacoue-Labarthe’s and Nancy’s attempts to develop a deconstructive approach to politics in the years following the conference. Philippe Lacoue-Labarthe and Jean-Luc Nancy, “Ouverture”, in Rejouer le politique : travaux du centre de recherches philosophiques sur le politique, ed. Philippe Lacoue-Labarthe and Jean-Luc Nancy (Paris : Editions Galilée, 1981), 11-28 and “Le “retrait” du politique”, in Le Retrait du politique : travaux du centre de recherches philosophiques sur le politique, ed. Philippe Lacoue- Labarthe and Jean-Luc Nancy (Paris : Editions Galilée, 1983), 183-198.

18 resonance can, to some degree, be taken to encourage the anti-normative position which Spivak, Nancy and Lacoue-Labarthe defend. Derrida critiques the “violence” of the text,57 the “complicity” of the origin,58 the “oblivion” of Being,59 the “repression” of the “forgotten” of metaphysics and of comprehension,60 the “crisis” of the binary opposition,61 and the “crises of reason… in complicity with what the world calls crises of madness”.62 However, as I have just indicated, the anti-normative interpretation which these early sympathisers put forward simply cannot be reconciled with the distinctly normative positions which Derrida takes up in his later work. It is my view that Derrida’s explicit defence of the freedom of expression, the right to asylum, the “future” of democracy, and the need for more effective international institutions, can only be understood when the constructive moment of Derrida’s work is taken seriously.

To conclude, neither of the above accounts of the relation between deconstruction and the political remark upon the complementarity of the reconstructive and deconstructive projects. On the one hand, deconstructive intervention in the “here and now” lacks orientation if it does not also engage with the institutional dynamics of those particular political systems which constructivism and reconstructivism take seriously. This lack of orientation is particularly evident in Levinas’ work, which, I argue, overemphasises “impossibility”. On the other hand, the constructive and reconstructive emphasis on the “possibility” of justice fails to properly understand justice’s critical potential when it does not also pursue the deconstructive insight into the “impossibility” of achieving justice in the present.

By attempting to productively engage each tradition with the other, I seek to contribute to a growing body of dissident voices who each defend, in different ways, the relevance of deconstruction for the reconstructive tradition. I am referring, here, to political philosophers, like Iris Marion Young, Drucilla Cornell, and Chantal Mouffe, who remark upon the value of Derrida’s early work for the constructive, normative political

57 Jacques Derrida, Of Grammatology, trans. Gayatri Chakravorty Spivak (Baltimore, Maryland: John Hopkins University Press, 1974), 101; and Jacques Derrida, Dissemination, trans. Barbara Johnson (Chicago: The University of Chicago Press, 1981), 5. 58 Derrida, Of Grammatology, 87. 59 Derrida, Margins of Philosophy, 23. 60 Ibid., 23-24, 65, 157. 61 Derrida, Of Grammatology, 283. 62 Jacques Derrida, Writing and Difference, trans. Alan Bass (Chicago: The University of Chicago Press, 1978), 63.

19 tradition. I also have in mind the more recent work of those like Bonnie Honig, Axel Honneth, Paul Patton, and Lasse Thomassen, among others, who also consider the relevance, for the constructive tradition, of Derrida’s later, distinctly political, writings. Although, as I indicated earlier, these philosophers rarely agree on the precise nature of deconstruction’s political relevance, they nevertheless unite, across their differences, to affirm that deconstruction can be brought to bear, in productive ways, on the constructive tradition which Rawls and Habermas defend.

Sympathetic to both the deliberative and deconstructive projects, Iris Marion Young believes that the domain of communication must be enlarged to include not only deliberative argument but also different styles and terms of communication such as rhetorical language, narrative, and the activist politics of civil disobedience. 63 Young argues, first, that the worthwhile project of elaborating a communicative ethics which recognises difference and particularity is impeded when moral respect is portrayed uniquely as a relation of symmetry between self and other. In “Asymmetrical Reciprocity: On Moral Respect, Wonder, and Enlarged Thought”, she states, “It is neither possible nor morally desirable for persons engaged in moral interaction to adopt one another’s standpoint”.64 Drawing on the work of Levinas in Otherwise Than Being,65 Young argues that, while comparing the situation of agents according to some standard of equality is ultimately necessary for theorising justice, symmetrical reciprocity alone is insufficient. Prior to this comparison, a moment of respect for the particular, embodied, other person is needed. In this moment, the position of self and other are asymmetrical, irreducible and irreversible.66 Young then defends the view that

63 Iris Marion Young, “Activist Challenges to Deliberative Democracy”, Political Theory 29, no. 5 (2001): 670-690; and Iris Marion Young, Inclusion and Democracy (New York: Oxford University Press, 2000), chapter 2. See also, Iris Marion Young, “Asymmetrical Reciprocity: On Moral Respect, Wonder and Enlarged Thought”, Constellations 3, no. 3 (1997): 340-363; Iris Marion Young, “Communication and the Other: Beyond Deliberative Democracy”, in Democracy and Difference: Contesting the Boundaries of the Political, ed. Seyla Benhabib (Princeton: Princeton University Press, 1996), 120-133. I express my agreement with Lasse Thomassen’s presentation of Young’s inclusive approach in Deconstructing Habermas (New York: Routledge, 2008), 23-24. 64 Young, “Asymmetrical Reciprocity”, 340. 65 Emmanuel Levinas, Otherwise Than Being Or Beyond Essence, trans. Alphonso Lingis (Pittsburgh, PA: Duquesne University Press, 1998) 66 Young, “Asymmetrical Reciprocity”, 351. Young also relates the asymmetry of respect to Derrida’s defence, in his quarrel with Marcel Mauss, of the non-reciprocal nature of the gift (355). Derrida writes, “For there to be a gift, there must be no reciprocity, return, exchange, countergift or debt”. Jacques Derrida, Given Time: Counterfeit Money, trans. Peggy Kamuf (Chicago: The University of Chicago Press, 1994), 12. Compare with Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies, trans. W.D. Halls (London: Routledge, 1990).

20 to the idea of communicative ethics must be added the idea of the incomparability of ethical subjects, an incomparability which requires the suspension of one’s own interests. Finally, she argues that the ideal of communication must be enlarged to include different ways of communicating which are more appropriate to the specificity of the other. In so doing, she thereby subscribes to an ideal of ever-widening conversation among participants who seek mutual understanding across their differences.

Lasse Thomassen is correct to point out that Young believes that the practical intent of Derrida’s and Levinas’ asymmetrical ethics can be included within an ever enlarging account of communication. Expanding the domain of communication allows differences, which are at first experienced as asymmetrical, to be included within deliberative democracy.67 My own position on Young’s use of Levinas should, by now, be clear. I do not think that deliberative democracy can be enlarged to include asymmetrical responsibility. Deliberative democracy cannot reconcile its own moral ideal of the person with Levinas’ concept of the person as a unique particular. However, this failure is not to be regretted. Rather, it is the gap between the actual and the possible which allows one to call on justice to critique justice’s own determinations.

In direct contrast to Young, Chantal Mouffe has consistently used Derrida’s early work to defend an alternative account of radical and plural democracy which rejects both Habermas’ ideal of rational consensus and Rawls’ account of the original position. Mouffe does not think we should assume that conflicts can be reconciled. Rawls and Habermas make this assumption and, in so doing, they effectively eliminate the conflicts which are proper to the political itself.68 Referring to what she calls the deconstructive idea of the “constitutive outside”, Mouffe argues that the construction of a political identity always excludes something, thereby establishing a violent hierarchy between two poles. 69 Consequently, social relations always imply relations of power, since the very construction of social identity is premised on acts of ungrounded force.

67 Thomassen, Deconstructing Habermas, 24. 68 Chantal Mouffe, The Democratic Paradox (London, New York: Verso, 2000), 134. 69 Chantal Mouffe, The Return of the Political (London, New York: Verso, 1993), 114 and 141; Mouffe, The Democratic Paradox, 12, 21; and Chantal Mouffe, On the Political (London, New York: Routledge, 2005), 15.

21 Mouffe refuses to affirm the possibility of rational consensus or perfect justice. She writes: Instead of trying to reduce the existing plurality through devices like the veil of ignorance or the ideal speech situation, we need to develop a positive attitude towards differences, even if they lead to conflict and impede the realisation of harmony. Any understanding of pluralism whose objective is to reach harmony is ultimately a negation of the positive value of diversity and difference.70

Consequently, Mouffe dismisses the theoretical framework of both Rawls and Habermas because they unite in affirming the possibility of harmonising differences within the moral standpoint.

While I clearly subscribe to Mouffe’s celebration of the impossibility of justice, I do not think that she gets the balance right. Consistently reverting to Derrida’s early work, Mouffe does not acknowledge that Derrida views the constructive moment as itself necessary. In contrast, Mouffe states, in black and white terms, that the belief in the possibility of resolving conflicts actually puts the democratic project “at risk”. 71 While I agree that, in the absence of further qualification, the assumption of justice’s possibility produces its own difficulties, I nonetheless suggest that, without this assumption, we cannot even begin to create a society in which differences can be pursued. As earlier suggested in relation to Levinas, the defence of impossibility is of little value without assuming the possibility of constructing new and better forms of justice. Had Mouffe taken into consideration Derrida’s later work, she would have noticed that, with Rawls and Habermas, Derrida himself defends the need for “reasonable faith in the possibility of a just constitutional regime”.72

While Drucilla Cornell’s account of deconstructive justice also takes off from Derrida’s early texts, her account of the relation between deconstruction and reconstruction is closer to the view which I wish to defend. On the one hand, sharing my own view, she does not believe that the domain of Habermas’ deliberative communication or Rawls’ overlapping consensus can include the asymmetrical difference of which Young

70 Chantal Mouffe, “Democratic Politics and the Question of Identity”, in The Identity in Question, ed. John Rajchman (London, New York: Routledge, 1995), 33-45 at 44, emphasis added. 71 Chantal Mouffe, “Democracy, Power and the “Political”, in Democracy and Difference, ed. Seyla Benhabib (Princeton: Princeton University Press, 1996), 245-256 at 254. 72 Rawls, Political Liberalism, 172, emphasis added.

22 speaks.73 Cornell argues that its inclusion within deliberative democracy is “impossible if we are to remain faithful to the ethical asymmetry that inheres in the respect for the Other as Other”.74 In a similar manner, Cornell believes that there is an important difference between Rawls’ account of “overlapping” consensus and Derrida’s account of the inescapable aporia of justice. According to Cornell, deconstruction pays more careful attention to the necessity of the constitutive gap between established laws and norms, on the one hand, and the ideal of justice, on the other.75 In this sense, deconstructive justice is “more utopian” because it “keeps open the “beyond” of currently unimaginable transformative possibilities precisely in the name of Justice”.76 Although Cornell does acknowledge that Rawls’ overlapping consensus succeeds in tolerating differences, she nonetheless believes that “he is more concerned than is Derrida to reconcile his theory of “constitutional essentials” with established norms”.77

On the other hand, unlike Mouffe, Cornell shares my belief in the need to commit, with Rawls and Habermas, to the possibility of justice. She is correct to point out that deconstruction “does not deny the necessity for [justice’s] elaboration within law, understood as a shared nomos”.78 The main difference between the two approaches, states Cornell, is that deconstruction recognises that these principles cannot be identified as Justice, even as we realistically limit this identification to the “overlapping consensus” which Rawls defends.79

Cornell believes, as I do, that deconstruction can have practical consequences for a theory like Rawls’ because it demands that law’s deconstructibility be affirmed as the condition for the possibility of the transformation of the legal system, faced with new cases to account for.80 Unfortunately, for my own purposes, Cornell does not pursue the

73 See Cornell, The Philosophy of the Limit. Cornell deals with Rawls’ overlapping consensus in “The Relevance of Time to the Relationship Between the Philosophy of the Limit and Systems Theory: The Call to Judicial Responsibility”, 91-115, and “The Ethical, Political, Juridical Significance of the End of Man”, 170-184. 74 Ibid., 170-171. 75 Ibid., 182. 76 Ibid., 182. 77 Ibid., 182. 78 Ibid., 182. 79 Ibid., 182. 80 Ibid., 166. See also 165. Her own discussion of Derrida’s “Force of Law” emphasises that the notion of transformability carries practical consequences. See “The Violence of the Masquerade: Law Dressed Up As Justice”, 155-169.

23 analysis of Rawls’ account of constitutional essentials in any detail, limiting her discussion to a couple of pages. However, the argument which my own thesis develops clearly supports her position. I have indicated, in line with Cornell’s observations, that it is the gap between the actual and the possible which allows justice to retain its critical function. In Cornell words, the gap is constitutive. It remains “beyond accommodation” and necessarily so.81 Moreover, in spite of, or because of this gap, I affirm with Cornell, Kant, Rawls and Habermas, the need for an apologetic “faith” with respect to justice’s possibility, a faith to which I believe Mouffe must commit.

In more recent years, philosophers like Bonnie Honig, Axel Honneth, Paul Patton and Lasse Thomassen, among others, have brought aspects of Derrida’s later work to bear on the constructive tradition which Rawls and Habermas defend. In Political Theory and the Displacement of Politics, Honig addresses Derrida’s reading of Jefferson’s draft of the American Declaration of Independence, arguing that the analysis highlights the dependence of the performative on the citation of the constative. 82 On the one hand, the performative, that is, the declaration of independence, gives birth to the people itself. Without the instituting moment of the performative utterance, the people, as such, do not exist. However, the “we”, the people named by the declaration, appeals also to a constative. In order to guarantee the power of the performative and secure their innovation, the American founders had to combine the performative with a constative utterance.83 Honig refers to this moment as the “undecidability” of the declaration: the “we” both exists and does not exist before the declaration of its existence. The performative functions by citing “facts”, which do not have the status of constative facts, as such, until the moment of their declaration. Honig finds some support, in Derrida, for her own critique of consensual conceptions of democracy which, she believes, inevitably fail in their attempts to consolidate difference within unity. Derrida,

81 Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (London: Routledge, 1991). 82 See “The Undecidability of the American Declaration of Independence”, in Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca and London: Cornell University Press, 1993), 104-110. For Derrida’s analysis, see Jacques Derrida, “Declarations of Independence”, in Negotiations: Interventions and Interviews 1971-2001, trans. and ed. Elizabeth Rottenberg (Stanford, California: Stanford University Press, 2002), 46-54. 83 Using Derrida’s analysis, Honig critiques Hannah Arendt for not remarking upon the manner in which the performative depends on the citation of the constative. See Honig, Political Theory and the Displacement of Politics, 104-110. For Arendt’s account of the performative in the context of the Declaration of Independence, see Hannah Arendt, On Revolution (New York: Penguin Books, 1963), 193-194.

24 she believes, affirms the undecidability of the attempt, thereby assuming that differences and conflicts cannot be eliminated in consensus. In “Rawls and the Remainders of Politics”,84 Honig argues that Rawls attempts to dissolve conflict within unity, and, in so doing, must dismiss as unreasonable those who, for reasons which he does not explore, are unable to affirm their sense of justice. Honig insists that politics can be reduced neither to consensus, nor to contestation, but must unite both moments together. Despite the perhaps more negative tone with which Honig speaks of consensual politics, I believe that my own project overlaps with her own and can be expressed, using the vocabulary which my own thesis deploys, as a defence of the undecidability or perfectibility of justice.

Drawing on Derrida’s work in The Politics of Friendship,85 Axel Honneth argues that the later Derrida develops a notion of moral responsibility for the concrete other which conflicts with the norm of equal treatment and instead supports an ethics of care like that of Carol Gilligan, a counterpoint to the perspective of Habermasian “justice”.86 To the principle of impartial justice, deconstruction adds a principle of unilateral, entirely disinterested help. Honneth does not believe that Habermas can include a unilateral ethics of care within his framework of reciprocal equal treatment and that the latter must be supplemented by the former. He believes that his own framework, the ethics of recognition, promises to unite both moments. Where Kantian theories (like those of John Rawls and Jürgen Habermas) defend egalitarian norms which hold independently of actors’ commitments to specific values, and where an ethics of care unilaterally seeks instead to promote those qualitative conditions which allow the other person to flourish, Honneth intends to walk the fine line between the two positions. More specifically, the ethics of recognition seeks to first articulate and then promote those structural elements of human flourishing which can be normatively extricated from the plurality of all particular forms of human life.87

84 Honig, Political Theory and the Displacement of Politics, 126-161. 85 Jacques Derrida, Politics of Friendship, trans. George Collins (London, UK: Verso, 1997). 86 Axel Honneth, “The Other of Justice: Habermas and the Ethical Challenge of Postmodernism”, in The Cambridge Companion to Habermas, ed. Stephen K. White (Cambridge: Cambridge University Press, 1995), 289-323 at 306-319 (sections 3 and 4). 87 Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts, trans. Joel Anderson (Cambridge, MA: Polity Press, 1995), 172. See also Carol Gilligan’s In a Different Voice: Psychological Theory and Women's Development (Cambridge, MA: Harvard University Press, 1993).

25 Within the framework which I develop in my own thesis, I can certainly affirm the constitutive gap between Habermasian impartiality and the “plural” concept of justice which Honneth defends.88 One way to do this is to emphasise, with Levinas and Honneth, the non-equivalence of non-formal ethical responsibility for the particular Other and the value of impartiality which Rawls and Habermas defend, and to insist that the former supplement the latter. I have three reservations. The first concerns the fact that Derrida does commit to the value of impartiality. Simon Critchley is correct to bring to the fore the implications of this commitment. Derrida needs: An account… of the passage from the quasi-phenomenology of ethical asymmetry to a full-blown theory of justice, complete with a procedure, like the categorical imperative procedure, capable of assessing and testing the validity of moral norms and values and arbitrating particular cases in the light of certain shared and binding principles.89

That is, he needs the Habermasian and Rawlsian concept of justice. My second reservation concerns Honneth’s attempt to determine the content of undecidability as a conflict between the norm of equal treatment and the principle of unilateral assistance. I do not think that Derrida permits us to determine the terms of undecidability in advance of an analysis of the particular context involved. In this sense, it may be inappropriate to speak of undecidability in the absolute terms which Honneth uses. As I noted earlier, Derrida’s account of “undecidability” is “a determinate oscillation between possibilities” which are themselves “highly determined in strictly defined situations”.90 Indeed, I will, in Chapter 7, pursue my own deconstructive analysis of Rawls’ and Habermas’ texts on their own terms. Finally, Honneth appears to believe that his own account reconciles the moral standpoint with an ethics of care. While initially emphasising their irreconcilability, Honneth affirms that they can both be included within the horizon of an ethics of recognition. I believe that Honneth, too, needs to

88 For Honneth’s “plural” conception of justice see: Axel Honneth, “The Limits of Liberalism”, Thesis Eleven 28(1991): 18-34; Axel Honneth, “Recognition and Justice: Outline of a Plural Theory of Justice”, Acta Sociologica 47, no.4 (2004): 351-64; Axel Honneth, “From Struggles for Recognition to a Plural Concept of Justice: An Interview with Axel Honneth (Interviewed by Gwynn Markle)”, Acta Sociologica 47, no. 4 (2004): 383-391; and Axel Honneth and Joel Anderson, “Autonomy, Vulnerability, Recognition and Justice”, in Autonomy and the Challenges to Liberalism: New Essays, ed. John Christman and Joel Anderson (Cambridge, UK: Cambridge University Press, 2005), 127-49. 89 Simon Critchley, “Appendix 2: Habermas and Derrida Get Married”, in The Ethics of Deconstruction: Derrida and Levinas (West Lafayette: Purdue University Press, 1999), 248-266 at 269. 90 Derrida, “Afterword: Toward an Ethic of Discussion”, 148.

26 explicitly affirm the gap between the actual and the unimaginable possible, thereby surrendering what he elsewhere refers to as the teleological aspect of his account.91

Towards the end of two recent articles, “Derrida’s Engagement with Political Philosophy” and “Derrida, Politics and Democracy to Come”,92 Paul Patton focuses on the relation, as he sees it, between deconstruction and contemporary liberalism. Patton argues that one point of convergence between Rorty, the later Rawls, and Derrida is their shared affirmation of the essential historicity of the concept of “democracy”. As Derrida states in Rogues, there is no essence or idea of democracy.93 Patton explains that this is because Derrida believes that all our descriptions of events and states of affairs are couched in particular vocabularies which are subject to change. In this sense, Derrida is aware of the historical contingency of his vocabulary, affirming that it can be neither justified nor refuted but only replaced by other vocabularies.94 The distinction between “democracy-to-come” and actually existing democracies emphasises the productivity of the gap between the actual and the possible. On the one hand, Patton suggests that this gap opens up a space for the reconfiguration of present determinate forms of democracy. 95 On the other hand, Patton also provides reason to believe that deconstruction needs to engage more closely with contemporary theories of liberal democracy if emphasising this gap is indeed to produce effects in the dominant tradition.96 While expressing the belief that the deconstructive account of the constitutive gap between actual and possible can produce effects, Patton concludes that it is too soon to judge the value of deconstructive political philosophy.

Lasse Thomassen takes up this challenge in Deconstructing Habermas, arguing for a deconstructive approach to politics which affirms the ways in which Habermas’ work cannot close the irreducible gap between the actual and the possible. Not only does he

91 Honneth affirms the need to equip his theory “with a more robust conception of progress. That would basically mean hypothesizing, with regard to the cultural transformations of valuable human qualities, a developmental path that would allow for justified judgments regarding the transhistorical validity of a specific culture of recognition. I am fully aware of the burden of proof this hypothesis places on me in the present culture, which is so sceptical of claims to progress”. Axel Honneth, “Grounding Recognition: A Rejoinder to Critical Questions”, Inquiry 45 (2002): 499-520 at 508-509. 92 Patton, “Derrida’s Engagement with Political Philosophy”; and Paul Patton, “Derrida, Politics and Democracy to Come”, Philosophy Compass 2, no. 6 (2007): 766 – 780. 93 Derrida, Rogues, 37. 94 Patton, “Derrida’s Engagement with Political Philosophy”, 161. 95 Ibid., 160. 96 I will consider Patton’s reasons more carefully in Chapter 7.

27 argue that the rationality of discourse and consensus become meaningless if a rational consensus is actually achieved, he also draws attention to the irreducible gap between constitutionalism and popular sovereignty, moments which Habermas claimed to unite. Arguing that Habermas’ concept of tolerance cannot rid itself of certain forms of intolerance, Thomassen then points to the difficulties which Habermas faces when determining the limits between legitimate acts of civil disobedience, on the one hand, and apparently illegitimate and irrational overreactions, on the other. In each case, Thomassen shows how Habermas’ own attempts to establish the necessity of these conceptual relationships ultimately fail. I believe that such work is essential to the task of critiquing our own inherited tradition of political philosophy from within, thereby uncovering, in distinct contexts, the particular nature of the gap between the actual and the possible, identifying conceptual and empirical problems which need to be resolved in new ways. Thomassen’s own deconstructive approach to the constitutive gaps in Habermas’ work will inform my own approach to Rawls’ and Habermas’ theories of justice in later chapters.

I hope to have demonstrated that the problem of the relation between constructive and reconstructive justice, on the one hand, and deconstructive justice, on the other, is worth consideration. Considered in isolation of the other, each tradition is distinctly unsatisfying. Overemphasising the “impossibility” of justice risks surrendering justice’s critical potential. Conversely, faith with respect to the possibility of justice should not prevent us from acknowledging that it is not exhausted by its determinations. I have argued that the prevalent liberal dismissal of deconstruction as politically irrelevant cannot be sustained. Conversely, I distanced myself from the view, held by some early sympathisers of deconstruction, that it is ultimately anti-normative and that this is somehow productive. By pursing the complementarity of the reconstructive and deconstructive projects, I will attempt to add my voice to those dissenting few who believe that deconstruction can be brought to bear, in productive ways, on the constructive tradition. Carefully considering the limits of each project, and arguing for their complementarity, will, I suggest, yield productive results for both parties.

28 How I will pursue the problem, chapter by chapter

As indicated from the outset, I intend to pursue the problem in two stages. In the first stage (which encompasses chapters one to five), I will identify the nature of the central difference between the approaches. This task provides the conceptual and textual basis for the second stage of the thesis, which argues for the complementarity of the two projects.

As indicated, I intend to identify the central difference between the approaches by reconstructing each philosopher’s account of justice in its professed relation to Kant’s practical philosophy. As Habermas himself remarks, “apart from all the politics, it is the philosophical reference to an author like Kant that connects me to Derrida”.97 This view is shared by Derrida who confirms that “the reference to a certain Kant… means a great deal to Habermas and me”.98 Kant’s practical philosophy is thus a common reference point for Rawls, Habermas, Levinas and Derrida alike. Taking this common reference seriously, I hope to develop a vocabulary common to all four approaches, thereby facilitating the task of identifying the central differences between them.

Chapter 1 describes the sense in which Rawls’ early presentation of his theory of justice subscribes to the “art of the possible”. Later, Rawls will reject this account as a “comprehensive” liberalism, because the conception is not limited to the uniquely political, but also includes values for non-political life. In the early theory, Rawls states that the “original position” procedure is constructed to interpret the “real force” of Kant’s moral notion of autonomy and its associated idea of a suitably defined rational decision. This is why he refers to his approach as “constructivism”. Principles are to be publicisable and public; subject to the acceptance of free and equal moral persons; and obligatory by reference to fully collective judgment and not contingent ends. Moreover, the conception of justice must cohere with those moral and non-moral beliefs which we are unlikely to give up, thereby generating its own support. Rawls believes that his

97 Jürgen Habermas, “America and the World: A Conversation with Jürgen Habermas (An interview by Eduardo Mendieta)”, trans. Jeffrey Craig Miller, Logos 3, no. 3 (2004). 98 Derrida, “Honesty of Thought”, 301.

29 conception of justice as fairness with its two principles can be said to satisfy the Kantian criteria. In a just, well-ordered society, persons accept, and know that others accept, the very same two principles, and public institutions generally satisfy and are generally known to satisfy these principles.99 Within the framework of comprehensive liberalism, which Rawls himself later rejects, the Kantian criteria can be determined and satisfied: “Unanimity is possible; the deliberations of any one person are typical of all”.100

In Chapter 2, I argue that Habermas, too, subscribes to the “art of the possible”. Indeed, his debate with Rawls (the subject of Chapter 3), concerns the details of the correct interpretation of Kant’s impartial standpoint, now with particular attention to the modern conditions of reasonable pluralism. Habermas justifies the “impartial standpoint” by the method of rational reconstruction (what I refer to as the reconstructive approach). By reconstructing the presuppositions of communicative action, Habermas demonstrates that the impartial standpoint must be presupposed by all persons capable of social interaction. Habermas insists that Rawls errs by attempting to determine the substantive content of an impartial standpoint in complete independence of those affected. Instead, Habermas argues for the necessity and universality of a principle of universalisation (U), which requires that those who are affected by a contested norm actually reach agreement through discourse. Those affected must freely accept the anticipated consequences and side effects of the proposed action norm for the satisfaction of all interests. That is, in contrast to Rawls, persons themselves decide on their own action norms. When an agreement satisfies the procedural criteria which (U) implies, then it can be said to be appropriately impartial, as Kant’s notion of impartiality among autonomous moral persons requires.

Pursuing the theme, I focus, in Chapter 3, on Rawls’ and Habermas’ “family quarrel”, arguing that their debate continues to take place within the framework of the “art of the possible”. Rawls now concedes that it is unrealistic to require persons to accept the very same public conception for the very same comprehensive reasons. Indeed, the gross coercion to enforce the conception would invalidate it as an acceptable public viewpoint. Nevertheless, I argue that Rawls continues to subscribe to the “art of the

99 Rawls, Theory, 5/4 rev., see also 454/397 rev.; and Rawls, “A Kantian Conception of Equality”, 255. 100 Rawls, Theory, 263/232 rev.

30 possible” because he claims that overlapping consensus can be achieved on certain, more general and non-comprehensive political values and, more specifically, on constitutional essentials. By contrast, Habermas maintains his earlier view, arguing that agreement need not be limited to political values alone but must include principle (U), which indeed makes consensually-oriented discourse possible. While exploring their debate, I will also remark upon the fact that the mature theories of Rawls and Habermas indeed acknowledge, to a certain degree, some of the difficulties involved in determining the content of the impartial standpoint under conditions of value pluralism. Rawls chooses to limit the content of the view to certain more basic political values which can serve as the object of an overlapping consensus, and Habermas acknowledges that moral validity or legitimacy claims can be contested at any time. I thereby lay the groundwork for my argument, in Chapter 7, that both need to affirm the essential perfectibility of justice. However, at this stage in the argument, my main intention is to draw attention to the fact that both men unite by assuming the possibility of interpreting the Kantian ideal of impartiality.

Having identified the central characteristic of Rawls’ and Habermas’ interpretations of Kant’s impartial standpoint, I explain, in Chapters 4 and 5, the rather different role which Kant plays in Levinas’ and Derrida’s accounts of justice. Doing so allows me to argue that Levinas attests to the failure of the impartial standpoint. In contrast to Habermas’ and Rawls’ optimism, Levinas believes that the value of impartiality between persons cannot satisfy what Levinas takes to be the dissimulated practical intent of Kant’s moral principle, namely, ethical responsibility for the fate of the other person (the Other) who shares the world with me. Although Levinas does think that commitment to the principle of equity is necessary when faced with more than one Other (the Other and the Third), he nonetheless insists that justice can never satisfy its ethical responsibilities which are particular and thus, non-formal. Justice inevitably fails and must be compensated by charity or challenged by rebellion. Levinas thereby subscribes to the “art of the impossible”.

In Chapter 5, I argue that Derrida gets the balance right. Emphasising both the possibility and impossibility of determining the content of justice, Derrida thereby insists on the undecidable status of justice’s determination. Justice’s responsibility for

31 the other, in the particular, and for all, as equals, must be negotiated. The negotiation is possible, but it will always fail to satisfy both demands. Keeping to the theme, I examine Derrida’s own interventions into Kant’s texts on practical philosophy, arguing that deconstructive responsibility implies a rather different pragmatics of intervention to the pragmatics of impartial decision, which Rawls and Habermas defend. By drawing attention to the conflicting demands which Kant’s concepts of rational faith, perfect friendship, and hospitality include, deconstruction maintains a critical attitude toward the determined forms which such concepts take. In relation to justice, deconstruction seeks to uncover the undecidable status and function of the determination of justice in the form of laws, principles and procedures, thereby demanding the conceptual and practical reformulation of current calculations.

After identifying the nature of the central difference between the approaches, I then turn, in Chapters 6 and 7, to the second stage. Having carefully laid the groundwork in the earlier chapters, I now argue that each project can be said to complement the other. In Chapter 6, I argue that Levinas’ emphasis on justice’s failure is ultimately unsatisfactory. Although it has the potential to provoke a certain vigilance with respect to justice’s determined forms, it denies itself the resources to defend certain public principles and procedures over others. I suggest that Levinas’ account of responsibility before Others in the plural indeed requires an ideal of moral personhood and not merely a concept of the person as a unique particular. Moral personhood, I argue, defines individuals not as particular, unique Others, but rather as the bearers of those capacities which enable them to take up the impartial standpoint. This, I claim, equates to the essential premise of the “art of the possible” to which Rawls and Habermas subscribe. Although commitment to an ideal of moral personhood is not equivalent to responsibility before the individual as a particular, unique Other, it is nevertheless implied by Levinas’ commitment to the Third, and must be explicitly pursued.

In the concluding chapter, Chapter 7, I argue, first, that deconstruction, insofar as it defends both the “art of the possible” and the “art of the impossible”, is not opposed to the constructive and reconstructive approaches, but requires their pursuit. Conversely, I also demonstrate that Rawls and Habermas would do well to affirm, more explicitly, the undecidable status of their respective substantive or procedural conceptions of justice.

32 Following Lasse Thomassen, I argue that Habermas comes to concede that rational consensus is the condition of both the possibility and impossibility of communication.101 Were it to be actually achieved, rational consensus would render further communication unnecessary. Habermas indicates that participants are to affirm that any actual consensus remains open, in principle, to further contestation. In so doing, he thereby defers rational consensus to a moment in the future. In his later work, Rawls, too, recognises that justice cannot be achieved in the present. The impartial standpoint, modelled by the original position, can be re-entered “at any time”. Exploring the im/possible status of deliberative democracy and political liberalism, I argue that justice remains structurally “to come” in the Derridean sense.

In closing, I suggest that the perfectibility of justice is not to be regretted but must rather be affirmed as the condition for justice’s critical function. On the one hand, if we are to be able to work toward justice in a constructive manner, we must have “reasonable faith in the possibility of a just constitutional regime”.102 On the other hand, the affirmation of the possibility of justice should not blind us to the fact that justice is not exhausted by its determinations. Were justice to be exhausted by a non-revisable original position outcome or non-contestable rational consensus, the concept would lose its critical function. Justice must be celebrated as an ideal to be pursued. It is this idea, I suggest, which we can productively take from deconstruction.

101 Thomassen, Deconstructing Habermas, see in particular 27-33 and 33-37. 102 Rawls, Political Liberalism, 172, emphasis added.

33 Chapter One

The Early Rawls: Kantian Autonomy and the Idea of an Acceptable Public Viewpoint

Unanimity is possible; the deliberations of any one person are typical of all. Rawls, Theory, 263/232 rev.

This chapter describes the sense in which Rawls’ early theory of justice subscribes to the “art of the possible”. 1 What is striking about this early work is Rawls’ conviction that Kant’s moral notion of autonomy can in fact be interpreted by a substantive “decision procedure” from which two principles of justice can be derived. This conviction leads Rawls to claim that only these two principles can be said to provide “the most appropriate moral basis for a democratic society”.2

Consequently, Rawls defines a just, well-ordered society as one in which free, equal and rational persons accept, and know that others also accept, the very same two principles,

1 Rawls’ early writings here describe the work up to but not including “Justice as Fairness: Political Not Metaphysical” because, in my view, the latter defines the themes which characterise Rawls’ later work. “Justice as Fairness: Political Not Metaphysical” (first published in 1985) distinguishes for the first time moral comprehensive values from public political values, and insists that the theory of justice is a public political conception and not a moral comprehensive doctrine. Although it can be argued that it is rather “Kantian Constructivism in Moral Theory” (first published in 1980) which marks the beginning of the transition from Theory to Political Liberalism, insofar as it takes into account, first, the public function of a conception of justice, second, the normative character of the moral ideal of the person, and third, the concept of the “Reasonable” which subordinates instrumental rationality, I will nonetheless refer to “Justice as Fairness: Political Not Metaphysical” as the work which most clearly defines the changes that mark Rawls’ later writings. In my view, it is the first work to use the vocabulary of the “political”. See John Rawls, “Justice as Fairness: Political Not Metaphysical”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 388-414; and John Rawls, “Kantian Constructivism in Moral Theory”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 303-358. For further clarification of the differences between the early and late Rawls, see also Catherine Audard, “Notice : Le constructivisme kantien dans la théorie morale” and “Notice : La théorie de la justice comme équité : une théorie politique et non pas métaphysique”, in John Rawls, Justice et démocratie (Paris: Editions du Seuil, 1993), 72 and 204; and Anthony Simon Laden, “The House that Jack Built: Thirty Years of Reading Rawls”, Ethics 113 (2003): 367-390 at 368. 2 Rawls, Theory, xxviii rev.

34 and in which public institutions generally satisfy, and are generally known to satisfy, these principles.3 A society well-ordered by the principles of justice is sufficiently “homogenous” such that “unanimity is possible; the deliberations of any one person are typical of all”.4 Rawls writes: It is precisely by publicly affirming the two principles of justice on the democratic interpretation that a society acts on the Kantian idea and makes visible in its institutions the respect that its citizens have for one another as moral persons.5

In his later work, Rawls will re-define the well-ordered society such that its stability no longer requires citizens to agree to the very same principles. He will insist that the “decision procedure”, which he once claimed interpreted the Kantian idea, now serves as an expository device of representation, which can be used to assist the process of finding a shared basis of political agreement. However, Rawls’ conviction that Kant’s moral notion of autonomy can be substantively interpreted will remain. On the one hand, Rawls will concede that it is unrealistic to require persons to accept the very same public conception for the very same comprehensive reasons. He will recognise that the gross coercion needed to enforce the conception would effectively invalidate it as an acceptable public viewpoint. On the other hand, Rawls will continue to subscribe to the “art of the possible”, claiming that an overlapping consensus can be achieved on certain, more general and non-comprehensive political values, which are to be embodied in a constitution.6

This is the first of three chapters which will deal with the different ways in which both Rawls and Habermas identify the content of Kant’s notion of autonomy and its associated idea of an acceptable public viewpoint. In each of these chapters, I will demonstrate that Rawls and Habermas emphasise the possibility of realising Kant’s ideal of impartiality, differing only on the details. I will then be able to identify the central difference between Rawls’ and Habermas’ interpretations of justice, on the one hand, and the deconstructive concept of justice which Levinas and Derrida defend.

3 Rawls, Theory, 5/4 rev., see also 454/397 rev.; and John Rawls, “A Kantian Conception of Equality”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 254-266 at 255. 4 Rawls, Theory, 263/232 rev. 5 John Rawls, “Distributive Justice: Some Addenda”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 154-175 at 171, emphasis added. 6 Rawls, Political Liberalism, xviii, xlviii.

35 Levinas, I will argue, believes that the value of impartiality which justice deploys cannot satisfy what he takes to be the dissimulated practical intent of Kant’s moral principle, namely, ethical responsibility for the fate of the concrete other person (Chapter 4). Differentiating himself still further, Derrida’s own interventions into Kant’s text effectively emphasise the undecidable status of justice’s determination (Chapter 5). As I stated in the Introduction, I will then pursue the second stage of my argument, demonstrating that the “art of the possible”, to which Rawls and Habermas subscribe, and the “art of the impossible”, which both Levinas and Derrida affirm, can indeed be said to complement each other.

Laying the groundwork for the identification of the difference between the four approaches, Chapter 1 will explain how Rawls’ early formulation of his theory of justice as fairness can be said to interpret Kant’s idea of a public viewpoint. In section one (1.1), I will argue that Rawls lays out certain criteria, which he takes to interpret the “real force” of Kant’s view. Principles are to be publicisable and public, subject to the acceptance of free and equal moral persons, and obligatory by reference to fully collective judgment and not particular, contingent ends. What Rawls calls the “original position” is an attempt to interpret each criterion by substantive “decision procedures”, which, when followed, determine principles that are to regulate public institutions.

In section two (1.2), I will argue that, for the early Rawls, the interpretation of the Kantian criteria implies the satisfaction of a further constraint, namely, “constructivist” or “coherentist” feasibility requirements. A conception of justice is constructed to meet the practical needs of social life and to yield a public basis in light of which citizens can justify, to one another, their shared institutions. As such, the construction begins not with first principles, but with the standpoint of persons themselves as agents of construction.7 If a conception is indeed to meet the requirements of social life, it must be coherentist: it is to cohere maximally with those moral and non-moral beliefs which we are unlikely to give up.8

7 Rawls, “Kantian Constructivism in Moral Theory”, 347 and 304. 8 Rawls, Theory, 20-21/18 rev.; and John Rawls, “The Independence of Moral Theory”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 286-302 at 289.

36 Section three (1.3) lays out a final criterion, namely, the stability of the conception. A society which is well-ordered by a conception of justice which can be publicly affirmed by all citizens would, says Rawls, generate its own support. Citizens have good reason to affirm the two principles of justice, thereby allowing for the stability of the conception.9

The final section (1.4) explains the sense in which Rawls’ public conception plays a critical function in society. Justice as fairness secures the material and institutional conditions for a certain conception of individual freedom, namely, freedom as self- determination. Persons, in the capacity of moral agent, must be able to freely accept the principles which are to regulate society’s institutions. If they can do so, then the public conception thus provides a critical “standard for judging actual institutions”.10

1.1 The “real force” of Kant’s thinking: criteria for justice

In the early interpretation presented in Theory and “A Kantian Conception of Equality”, Rawls advances two principles of justice to govern the public institutions which distribute rights and obligations. He claims that these principles are justified because they would be chosen by rational parties in a position – the original position – which procedurally interprets the “real force” of Kant’s notion of autonomy. According to Kant, persons act autonomously when they abstract from their own private ends and choose to act only on those principles which all other autonomous rational beings could also will.11 Rawls takes the original position to be operationalising the “moral force” of Kant’s idea of rational autonomy by means of the various constraints which it imposes on decision-making.12

Rawls hastens to add that his conception is not a literal interpretation of Kant’s actual doctrine with its deep dualisms between the necessary and the contingent, form and

9 Rawls, Theory, 454-455/398-399 rev. 10 Ibid., 227/199 rev. 11 Ibid., 251/221 rev. “This interpretation is based upon Kant’s notion of autonomy”. 12 Rawls, “A Kantian Conception of Equality”, 264.

37 content, reason and desire, and noumena and phenomena.13 Rather, the theory of justice as fairness first clarifies the “characteristic structure” or “essential parts” which make Kant’s moral conception distinctive. It then reformulates these criteria within the scope of an empirical theory, by which Rawls means within the context of a particular society whose members share a collective body of knowledge and face certain collective practical problems.14

The “essential parts” or criteria of Kant’s viewpoint are expressed by three interrelated ideas: first (1.1.1), legislation for a realm of ends; second (1.1.2), the ideal of persons as free, equal and rational; and third (1.1.3), the Categorical Imperative.15 Rawls thus intends that his characterisation of the original position decision include informational and motivational conditions which render the Kantian criteria congenial to real persons in society who together face a particular problem.

Now, as Rawls notes, the argument for the principles adds a particular feature to Kant’s conception, namely, the specification of the problem which persons collectively face.16 The theory of justice, says Rawls, takes as its particular subject the basic structure of society or, in other words, the way in which the major social institutions – the political constitution and the principal economic and social arrangements – distribute fundamental rights and duties and determine the division of advantages from social cooperation.17 The theory thus does not intend to determine moral principles for life in general, but rather seeks only those principles which are appropriate for the basic structure of society, what Rawls calls “social justice”.18 Insofar as the fundamental institutions which publicly distribute rights and opportunities are coercive, drawing on state mechanisms to enforce their policies, Rawls argues that they are justified only when the principles supporting them can be properly said to be the content of an acceptable public point of view, that is, one which satisfies the criteria implied by

13 Rawls, Theory, 226-227 rev., 264/233 rev.; and Rawls, “A Kantian Conception of Equality”, 264. 14 Rawls, Theory, 226-227 rev.; and Rawls, “A Kantian Conception of Equality”, 264. 15 “The theory of justice in turn tries to present a natural procedural rendering of Kant’s conception of the kingdom of ends, and of the notions of autonomy and the categorical imperative”. Rawls, Theory, 264/233 rev., see also 251-252/221 rev., 357/226 rev., and 264/233 rev.; and Rawls, “A Kantian Conception of Equality”, 264. 16Rawls, Theory, 252/222 rev. 17 Ibid., 7/6 rev. 18 Ibid., 7/6 rev.

38 Kant’s moral conception. It is to Rawls’ specification of these criteria which we now turn.

1.1.1 Legislation for a realm of ends: publicity

The decision procedure intends to interpret Kant’s idea that a principle of pure reason (a moral principle) is one which persons can rationally will to govern their conduct in a realm of ends.19 To will something as a practical law of a realm of ends is to will it as a practical law for the will of all rational beings. From this idea, Rawls draws two consequences for the principles which are to regulate public institutions: first, principles are to be constrained by the requirement that they be acceptable to all when publicised; and second, principles are in fact to be public.20

Insofar as the original position is to lay out the procedural conditions of a rational decision on principles for the basic structure of society, it must interpret the idea that principles chosen to regulate possible ends are both acceptable to all when publicised and themselves public.21 Standards are required for determining how conflicting claims are to be publicly adjudicated and the “force”22 of Kant’s view is that all persons implicated by the standards are to find them acceptable. Rawls thus observes that a virtue of the idea of the contract (and of the conceptions to which it gives rise) is that it

19 Ibid., 251-252/221 rev. 20 Rawls believes that the “publicity condition” is implied by Kant’s account of the moral law and is to apply to a society’s conception of justice. “The publicity condition is clearly implicit in Kant’s doctrine of the categorical imperative insofar as it requires us to act in accordance with principles which one would be willing as a rational being to enact as law for a kingdom of ends. He thought of this kingdom as an ethical commonwealth, as it were, which has such moral principles for its “public charter”. (Rawls, Theory, 133/115 rev.). Rawls refers us to three texts in which Kant discusses the publicity condition. The first occurs in the Doctrine of Right, where Kant writes, “Public Right is the sum total of those laws which require to be made universally public in order to produce a state of right” (Immanuel Kant, “The Metaphysics of Morals”, in Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 353-604 at 6:311). The second occurs in “On the Common Saying”, where Kant remarks that “No right in a state can be tacitly and treacherously included by secret reservation, and least of all a right which the people claim to be a part of the constitution, for all laws within it must be thought of as arising out of a public will” (Immanuel Kant, “On the Common Saying: That may be Correct in Theory, but it is of No Use in Practice”, in Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 273-310 at 8:303). The third occurs in Immanuel Kant’s “Toward Perpetual Peace”, in Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 311-352 at 8:381-386. 21 Rawls, Theory, 252/221 rev. 22 Ibid., 251/221 rev.

39 expresses the ideal of publicity.23 Publicity “has an important place in Kantian theory”. Rawls writes: Roughly, publicity requires that in assessing moral conceptions we take into account the consequences of their being publicly recognised. Everyone is presumed to know that others hold the corresponding principles and that this fact in turn is public knowledge, and so on: it is just as if these principles were the outcome of an agreement.24

A well-ordered society, whose public institutions are effectively regulated by principles which are both publicisable and public, can thus be said to interpret the idea of a kingdom of ends.25 The publicity requirement, largely implicit in Theory, will be given explicit importance in Political Liberalism (1993/6) in Rawls’ “ideal of public reason” subject to the criterion of reciprocity or the mutual acknowledgement of principles (see Chapter 3.1.1.4).26

1.1.2 The ideal of the person: free, equal, rational and cooperative

The idea of legislation for a realm of ends is linked to a second Kantian idea which informs Rawls’ characterisation of the original position decision procedure: legislation regarding the basic structure of society is to be agreed to under conditions which characterise persons as free and equal rational beings who express their nature as such when they abstract from their own private ends and choose to act only on those principles which all rational beings could will.27 The idea is equivalent to that of treating persons not as means but as ends in themselves: moral principles specify the boundaries which systems of ends must respect if persons are, by their actions, to treat others as ends and not as means.28 These boundaries – “right” – have priority over any particular empirical end which a person might have. 29

23 Ibid., 16/15 rev., 55/48 rev., 133/115 rev. 24 Rawls, “The Independence of Moral Theory”, 293. 25 Rawls, “A Kantian Conception of Equality”, 264. 26 In his article “Public Reason”, Charles Larmore provides a detailed account of the way in which the ideal of publicity implicit in Theory grows into Rawls’ doctrine of “public reason”. See Charles Larmore, “Public Reason”, in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge, UK: Cambridge University Press, 2003), 368-393. 27 Rawls, Theory, 252/221 rev. 28 Ibid., 179-180/156-157 rev. 29 Rawls believes that the “priority of right” is implied by Kant’s work. He refers, in particular, to Kant’s remark that good and evil are defined as a function of the moral law and not vice versa. See Kant’s remarks in “Critique of Practical Reason”, in Practical Philosophy, trans. and ed. Mary Gregor

The original position lays out the conditions which are to be satisfied if persons are to be appropriately situated as free and equal rational members of society. Persons are conceived as free, since acceptance is not to be coerced. Persons are conceived as equal, since the acceptance of each is required and thus each person is to have an equal stake in the procedure. The original position procedure seeks to determine the principles upon which these free and equal rational persons would themselves agree if they were fairly and solely represented as such and if they were all involved in the decision. The original position includes two rather different procedures. The first is the representation of the parties to the decision as agents who instrumentally pursue their own rational advantage: parties “are conceived as not taking an interest in one another’s interests” and the concept of rationality is interpreted “in the narrow sense, standard in economic theory, of taking the most effective means to ends”.30 The second procedure seeks to symmetrically situate these instrumentally rational parties such that no one party can take unfair advantage of social and natural contingencies. It does so by means of a veil of ignorance which places constraints on deliberation, thereby modelling the requirements of equality and impartiality in the choice of principles.31 Behind the veil, parties are unaware of their class, social status, natural abilities and particular generation. They do not know the nature of their particular conception of the good, nor are they aware of their individual psychological tendencies. In this way, the veil situates persons symmetrically such that the outcome can be said to be fair.

Now, Rawls suggests that, by means of its incorporated procedures, the original position interprets the idea of a moral person who is characterised by two moral faculties, namely, rationality and a sense of justice.32 These capacities render the search for principles of justice both necessary and possible. The capacity for formulating and pursuing a conception of one’s rational advantage (a conception of the good) makes justice necessary, since it leads persons with different life-plans to make conflicting

(Cambridge: Cambridge University Press, 1996), 133-272 at 5:62-65 (Chapter 2, Book 1 of Part 1). Rawls also refers to Kant’s remarks on pure incentive for the law itself, for the formal aspect of will, as all that remains if we discount the will’s particular content. See Kant, “On the Common Saying”, 8:282. 30 Rawls, Theory, 13-14/12 rev. 31 Ibid., 136-137/118 rev.; and Rawls, “A Kantian Conception of Equality”, 257. 32 Rawls, Theory, 505/442 rev.

41 claims on the available resources.33 The capacity for formulating and abiding by a conception of justice in a spirit of social cooperation makes justice possible, since it describes a willingness to live by principles of justice, even in cases where their contravention might bring personal advantages. Where the first original position procedure – the representation of parties – models a primarily instrumental rational interest, the second original position procedure – the veil of ignorance constraints – models the sense of justice, that is, the obligation to consider the interests of others and to cooperate in view of mutual good.

This claim – that the original position models the sense of justice with the veil of ignorance constraints – calls for further comment. This second moral power – the capacity for a sense of justice – plays two rather different roles in Theory and only the second can be said to imply the veil of ignorance constraints. In its first role, the capacity for a sense of justice serves a “purely formal” function within a theory of rational choice.34 More specifically, the capacity is designed to “guarantee [the] strict compliance” of parties with the principles they choose.35 The determining factors of the rational choice situation thus include the stipulation that parties in the original position be themselves represented as not merely instrumentally rational (capable of choosing in favour of their own rational interest) but also as capable of actually abiding by the principles they choose (capable of a sense of justice).36 If parties knew, for example, that they did not intend or were not capable of abiding by the principles chosen, then the original position argument would not function. The requirement of strict compliance thereby constrains the decision upon principles such that the principles chosen are indeed those that citizens will be able to affirm in their everyday lives: it demands of parties that they “adhere to the principles eventually chosen… and will not enter into agreements they know they cannot keep”.37 In this first sense, then, it is not the veil of ignorance constraints which interpret the sense of justice – as presented in the preceding paragraph – but rather the parties themselves who are represented as capable of a sense of justice.

33 Ibid., 127/109-110 rev. 34 Ibid., 145/126 rev. 35 Ibid., 145/125 rev. 36 Ibid., 145/125 rev. 37 Ibid., 145/126 rev.

42 However, in his later work, Rawls will drop all reference to this first, restricted and purely formal understanding of the second moral power as a determining factor in a theory of rational choice. Instead, he will favour a second understanding, one which I believe Theory nonetheless also implies. On this second understanding – one which “Kantian Constructivism in Moral Theory” will signal and “Justice as Fairness: Metaphysical Not Political” and Political Liberalism will emphasise – the capacity for a sense of justice no longer serves merely to formally constrain parties to select principles with which the citizens they represent can strictly comply. Rather, the capacity describes a power which citizens themselves must commit to if social cooperation under “reasonable” terms is to be at all possible.38 In this second role, then, the faculty for a sense of justice describes the intention, not of parties but of the idea of the person which citizens affirm “to cooperate together to realise their own and another’s nature” in the good of social union,39 thereby articulating an “idea of reciprocity and mutuality” which Rawls will call the Reasonable.40 Here, the Reasonable describes the willingness to offer “terms that each participant may reasonably be expected to accept, provided that everyone else likewise accepts them”.41 Of the two interpretations then, it is the power for formulating and abiding by a conception of justice in this second sense – the sense of the Reasonable – which makes justice possible.

38 Rawls, “Kantian Constructivism in Moral Theory”, 316; Rawls, “Justice as Fairness: Political Not Metaphysical”, 396-398. 39 Rawls, Theory, 527/462 rev. 40 Rawls, “Kantian Constructivism in Moral Theory”, 316. I think Theory also depends on this second formulation of the capacity for a sense of justice (as the less formal willingness to offer reasonable terms of social cooperation) and not merely the first formulation (a “purely formal” constraint upon parties within a theory of rational choice) when it develops upon the sense of justice in relation to “love of mankind” (“The sense of justice is continuous with the love of mankind…” (Rawls, Theory, 476/417 rev., see also 191/167 rev.); in relation to the good of social union (Rawls, Theory, 527-528/462-463 rev.) and even in relation to the development of moral psychology (Rawls, Theory, 475-478/416-419 rev.). Such formulations thematise the capacity of citizens themselves – who affirm a particular idea of the moral person – to formulate and abide by a conception of justice. In this sense, while I do agree with Rawls when he later claims in “Justice as Fairness: Political Not Metaphysical” (401) and Political Liberalism (53) that he errs in Theory by describing the theory of justice as fairness as a theory of rational choice (see Rawls, Theory, 16/15 rev., 17/16 rev., 583/510 rev.), I do think that Theory implicitly thematises the distinction which Rawls later makes explicit in “Kantian Constructivism in Moral Theory”, “Justice as Fairness: Political Not Metaphysical”, and Political Liberalism between the Reasonable and the Rational, and their relation to the two moral faculties, that is, the capacities for a sense of justice and a conception of the good (See Chapter 3.1.1.3 for further consideration of the definitions and roles of the Reasonable and the Rational in Rawls’ later work). Burton Dreben, who also thinks the distinction plays a role in Theory, is nonetheless correct in stating that certain passages also seem to implicitly deny it and that one cannot understand Theory correctly without a purely formal understanding of the sense of justice within a theory of rational choice. See Burton Dreben, “On Rawls and Political Liberalism”, in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge, UK: Cambridge University Press, 2003), 316- 346 at 321-322. 41 Rawls, “Kantian Constructivism in Moral Theory”, 316.

On this second interpretation, it is indeed the veil of ignorance which interprets the capacity for a sense of justice (and no longer the representation of the parties, as the first interpretation suggests). The veil of ignorance performs the procedural role of abstracting from instrumental private ends so as to consider the interests of all (the sense of justice). The idea is that, if appropriately tailored, the veil will ensure that rational parties choose only those principles which the citizens they represent would find acceptable when they finally have complete knowledge of the particularities of their situation. Such principles can then be said to interpret the Kantian idea of agreement between free and equal rational persons.

Of course, the tailoring of the veil of ignorance cannot conceal everything. Principles must be appropriate for the societies they are to regulate and thus, parties know everything they need to about their society in order to decide upon its principles.42 They know, first, that their society is subject to particular “circumstances of justice” – objective and subjective – which make human cooperation both possible and necessary and which “define the role” which justice is to play.43 Objective circumstances are the relevant facts about the object of cooperation: that many individuals coexist together; that their geographical territory is finite; that there exists moderate scarcity in natural and other resources so that, while mutually advantageous arrangements are feasible, benefits fall short of the demands put forward. Subjective circumstances are the relevant facts about the subjects of cooperation: that each has their own conception of the good, which leads them to make conflicting claims on available resources; that each regards their own life project as worthy of recognition; that each has similar needs and interests as determined by the positive sciences; that each is concerned about their future generations; 44 that each is able to abide by a conception of justice; and, that each suffers shortcomings of knowledge, thought and judgment such that there exists a diversity of belief and a conflict of interests. “Unless these circumstances existed there would be no

42 Rawls, Theory, 138/118 rev. 43 Ibid., 126/109-110 rev. 44 Rawls believes that inter-generational justice is implied by Kant’s account: principles of justice are those which earlier and future generations can likewise affirm. Rawls, Theory, 291/254 rev. See Immanuel Kant, “Idea for a Universal History with a Cosmopolitan Purpose”, in Kant's Political Writings, trans. H.B. Nisbet (Cambridge, UK: Cambridge University Press, 1970), 41-53 at 44.

44 occasion for the virtue of justice”.45 Moreover, parties are also presumed to know general facts about their particular society: facts about political affairs, the general principles of economic theory, the basis of social organization, the laws of human psychology, and the empirical findings of the human and social sciences.

In other words, the veil of ignorance is designed to conceal only those particular facts about parties’ individual situation which would position them unequally, both between themselves and between generations, and would enable them to choose principles which advantage their individual situation. Concerning equality, parties are to have an equal stake in the procedure for choosing principles:46 when choosing principles, no one is to be advantaged or disadvantaged by natural fortune or socio-economic circumstances.47 Concerning freedom, principles must be those which can be freely accepted by all parties, irrespective of their social and economic position: a suitably defined “Kantian” decision must exclude knowledge of any natural and social contingencies which allow parties to be guided by individual prejudices. Parties are to be modelled as mutually disinterested in the Kantian sense.48 If principles are really to allow for freedom in the choice of a system of final ends, in a manner which does not reflect the bias of a particular plan of life, then neither egoists nor altruists, neither hedonists nor philanthropists should be able to exploit contingencies.

The decision procedure thus assumes that principles are appropriate only when the decision upon them can be said to be fully collective, that is, when the principles are acceptable to all citizens who are appropriately represented as free and equal moral persons. Indeed, Rawls claims that by incorporating this collectivity requirement into the original position decision procedure, the veil of ignorance renders Kant’s difficult notion of “noumenal decision” congenial to persons in a society. As Sidgwick points out, at times Kant’s exposition of the idea of noumenal freedom is counter-intuitive, insofar as it seems not to allow one to say that there is a morally relevant difference

45 Rawls, Theory, 128/110 rev. 46 Ibid., 19/17 rev. 47 Ibid., 18/16 rev. 48 Ibid., 254/224 rev., 147/127-128 rev.

45 between scoundrel and saint.49 Nothing in Kant’s ethics is more striking, says Sidgwick, than the idea that persons realise their true selves when they act freely as noumenal selves (that is, as auto-determining selves in an intelligible world of ends) and when they do not allow their actions to be determined by sensuous desires or contingent aims as phenomenal selves (that is, as selves determined by laws of nature). However, Sidgwick sees nothing in Kant’s idea of noumenal freedom which explains why a scoundrel does not express in a bad life his or her characteristic and freely chosen selfhood in the same way that a saint expresses his or her characteristic and freely chosen selfhood in a good one. Both decisions may be said to manifest noumenal choice: the scoundrel’s egoistical principle and the saint’s altruistic principle are equally the outcome of a free choice and can indeed be consistently and rigorously applied as if they are, arguably, laws of nature. It is Sidgwick’s view, explains Rawls, that Kant’s exposition permits one to say that noumenal selves can choose any consistent set of principles and that acting from such principles – whatever they are – is sufficient to express one’s choice as free. Rawls thinks that his original position decision procedure clarifies a condition of Kant’s account of free decision which Sidgwick overlooks, namely, the collectivity requirement: if a persons’ choice as a Kantian noumenal self is to be truly free, then it must be subject to the desire to express their nature as rational and equal members of the intelligible realm with precisely this liberty to choose, requiring their decision to be acceptable to other noumenal selves in an intelligible world of acceptable ends.50 Since all are similarly free and rational, each must have an equal say in adopting the public principles of the ethical commonwealth, or, in Rawls’ case, the principles for the public distribution of rights and opportunities by the basic social structure. Unless the scoundrel’s principle were collectively agreed to, it cannot be the outcome of free choice, however much a single self might be of a mind to adopt it. The collectivity requirement thus explains why neither egotistical nor altruistic principles would be adopted behind the veil of ignorance.

Insofar as Rawls speaks, here, of subjecting Kant’s noumenal decision to the collectivity requirement, it may appear that the subject of a theory of justice, for which

49 Henry Sidgwick, “The Kantian Conception of Free Will”, in The Methods of Ethics, 7th ed. (London: Macmillan, 1907), 511-516. For Rawls’ discussion of Sidgwick’s claims, see Rawls, Theory, 254- 256/224-225 rev. 50 Rawls, Theory, 257/226 rev.

46 moral principles are sought, is not simply the basic structure of society but also life in general. This is not the case. Although Rawls has not yet clarified the distinction between moral comprehensive values and political values which will characterise his later work, and although he will later admit that Theory often confuses the two, he nonetheless intends, in Theory, that the collectivity requirement apply to a person’s choice on principles for a particular object, namely, for the basic structure of society and not to ethical judgments in general.51 As his later work will indicate, the contemporary problem of social justice emerges from the fact of reasonable pluralism; that is, the co-existence of different and conflicting reasonable philosophical, ethical and religious doctrines which are both general (applying to a wide range of subjects and, taken to its limit, all subjects universally) and comprehensive (including conceptions of what is of value in human life which inform our life as a whole).52 This fact requires that the theory of social justice limit its subject accordingly, namely, to those public and social institutions which distribute fundamental rights and liberties and are indeed able to be the object of agreement among citizens who nonetheless affirm very different comprehensive doctrines. Thus, Rawls’ debate with Sidgwick in Theory is of interest to us here only insofar as it reveals Rawls’ view that the collectivity requirement is implied by Kant’s account of an appropriately public decision on principles for the public institutional structure. Although in Theory Rawls does suggest – explicitly – that Kant’s conception of noumenal freedom is made suitable for persons in society by means of the original position’s collectivity requirement,53 from which it appears to follow that the original position can indeed produce ethical principles in general and not merely principles for a just system of basic social institutions, Rawls is very careful to distance himself from such a view in his later work.

51 Rawls first draws the distinction between moral comprehensive values and political values in “Justice as Fairness: Political Not Metaphysical” and this distinction will characterise his later work. See also “The Domain of the Political and Overlapping Consensus” and Political Liberalism (in particular 11-15). He thus insists, in these works, that political liberalism is not a form of Enlightenment liberalism, that is, it is not a comprehensive liberal doctrine founded on reason and viewed as suitable for the modern age now that religious authority no longer dominates. “Rather, its problem is that of a political conception of political justice for a constitutional democratic regime that a plurality of reasonable doctrines, both religious and nonreligious, liberal and nonliberal, may freely endorse, and so freely live by and come to understand its virtues”. Rawls, Political Liberalism, xl. Rawls’ modified conception of the substantive content of the ideal of agreement among free and equal persons will be presented in Chapter 3. 52 Rawls, Political Liberalism, 13. 53 Rawls, Theory, 257/226 rev.

47 By incorporating the collectivity requirement into the original position by means of the veil of ignorance, the characteristic structure of Kant’s view of fair public decision is interpreted in a manner suitable for persons in society who must decide on principles for their public institutional structure. Rawls claims that the “real force” of Kant’s dualistic notions (noumena and phenomena, necessary and contingent, form and content, and so on) lies in its link to a public point of view, one to be shared collectively by persons, appropriately conceived as free and equal.54 The original position allows us to see how the “characteristic structure” of moral decision actually functions because it lays out the procedural conditions of such a structure.

1.1.3 The Categorical Imperative: necessity not contingency

The ideas of legislation for a realm of ends and of moral persons as free, equal and rational are related to a third Kantian idea which specifies a further criterion for the characterisation of the original position, namely, the Categorical Imperative. Principles of justice, like moral laws, are to be categorical and not hypothetical imperatives.55 Where hypothetical imperatives direct us to take certain steps as effective means to a specific end, which is not itself a necessary end for rational human beings, categorical imperatives are those which obligate necessarily. As Rawls point out in his Lectures on the History of Moral Philosophy, in Kant, the moral law, the Categorical Imperative, the categorical imperative procedure (hereafter CI-procedure) and particular categorical imperatives are not equivalent.56 The moral law is an idea of reason, the idea of pure necessity, and it applies to all rational beings (including divine beings) whether or not they are, like us, finite beings with needs. The Categorical Imperative, however, is a directive and as such bears only upon those reasonable and rational beings who, being finite with needs, experience the moral law as a constraint. Human beings experience the law in this way and so the Categorical Imperative applies to us. The CI-procedure adapts the Categorical Imperative to our empirical human circumstances as finite beings

54 Rawls, Theory, 257/226-227 rev.; Rawls, “A Kantian Conception of Equality”, 264. 55 Rawls, Theory, 253/222 rev. 56 John Rawls, Lectures on the History of Moral Philosophy (Cambridge, Massachusetts: Harvard University Press, 2000), 167.

48 with natural needs.57 Particular categorical imperatives are those maxims – practical reasons for acting which finite persons give themselves – which satisfy the corresponding requirements set out by the CI-procedure. Particular categorical imperatives are thus the content of the CI-procedure.

For Rawls, the original position is equivalent to the CI-procedure: it lays out those procedures which adapt the Categorical Imperative to the empirical circumstances of our collective judgment. The principles of justice are analogous to particular categorical imperatives because, chosen in the original position, they apply to parties precisely by virtue of their nature as free, equal and rational, and not of any other contingent end they might have.58

Now, insofar as the rationality of parties in the original position is conceptualised in a primarily instrumental manner, it may appear that they are not fundamentally motivated by any sense of obligation towards other persons and are, in contrast, only concerned with advancing their own interests, their reasoning may well appear to be purely instrumental and not moral in the Kantian sense.59 Indeed, as Rawls explains, the parties

57 Rawls’ details his 4-step interpretation of the CI-procedure in his Lectures on the History of Moral Philosophy (167-170). The first step takes the principle from which the subject acts (maxim) which is rational (and thus subjectively valid) from the agent’s point of view of their situation, desires, abilities and beliefs. It has the form: i. I am to do X in circumstances C in order to bring about Y unless Z (where X is an action and Y is an end). The second step generalises the maxim of the first step such that it applies to everyone. If the maxim passes the remaining steps, it can be said to be a practical law, an objective principle valid for every rational being. ii. Everyone is to do X in circumstances C in order to bring about Y unless Z. The third step expresses the maxim at (ii) as a law of nature: iii. Everyone always does X in circumstances C in order to bring about Y as if by a law of nature (as if such a law was implanted in us by natural instinct). The intuitive idea of the fourth step is to anticipate and assess the acceptability of the empirical effects of the maxim at step (iii) on existing laws the law of nature: iv. We adjoin the as-if law of nature at step (iii) to the existing laws of nature (as these are understood by us) and then think through as best we can what the order of nature would be once the effects of the newly adjoined law of nature have worked themselves out. We are thus permitted to act from our rational maxim at step (i) only if, first, we intend as reasonable and rational agents to act from that maxim when we regard ourselves as a member of the adjusted social world associated with it, and, second, we must be able to will this adjusted social world itself and affirm it should we belong to it. 58 Rawls, Theory, 253/222 rev. 59 This line of criticism was quickly brought to bear on Rawls’ “Kantian interpretation”. Critics like Oliver Johnson, Andrew Levine, Thomas Nagel, Robert Paul Wolff and Homer Mason argue, for example, that the original position’s characterisation of the parties was not in fact Kantian: where Kant requires that principles be chosen on the basis of pure duty alone, Rawlsian parties choose principles on

49 are characterised by an instrumental desire to secure for themselves a fair distribution of what Rawls calls primary goods. In this sense, their motivation does not appear to be informed by the social cooperativeness which characterises the second moral faculty of moral persons, namely, the sense of justice. With more primary social goods (liberties and opportunities, income and wealth, and the social bases of self-respect etc.) and with more primary natural goods (health and vigour, intelligence and imagination etc.) persons are generally assured greater success in advancing their ends,60 and thus, lacking all knowledge of their particular situation, parties choose to guarantee for all a fair distribution of these goods so as to protect themselves from being subsequently disadvantaged either by their particular end or by the lottery of birth. It may well appear – as so many have claimed – that the principles such parties choose are not categorical imperatives in the Kantian sense because parties do not appeal to the idea of an acceptable public point of view when entering their decision.

However, from the Rawlsian perspective, such a criticism does not take into account the procedural rendering by the original position of the necessity of an acceptable public point of view which the idea of the Categorical Imperative implies.61 The original

the basis of empirical reason alone, motivated by merely instrumental desire for a greater stake in primary goods. Levine even suggests that Rawlsian parties are much like the rational egoists of Hobbes’ state of nature and not disinterested, non-instrumental, Kantian individuals. As my presentation of Rawls’ procedural interpretation indicates, such criticism overlooks the manner in which the original position interprets – by its veil of ignorance constraints – the second faculty of moral persons, namely, the non- instrumental sense of justice. The moral ideal of the person – rational and socially cooperative – which the original position models via its different procedures is certainly Kantian in spirit. See Oliver Johnson, “The Kantian Interpretation”, Ethics 85, no. 1 (1974): 58-66; Oliver Johnson, “Autonomy in Kant and Rawls: A Reply to Stephen Darwall’s A Defence of the Kantian Interpretation”, Ethics 87 (1977): 251- 54; Andrew Levine, “Rawls’ Kantianism”, Social Theory and Practice 3, no. 1 (1974): 47-63; Thomas Nagel, “Rawls on Justice”, The Philosophical Review 82, no. 2 (1973): 220-34; Robert Paul Wolff, Understanding Rawls: A Reconstruction and Critique Of A Theory of Justice (Princeton: Princeton University Press, 1977); and Homer Mason, “On the Kantian Interpretation of Rawls’ Theory”, Midwest Studies in Philosophy 1 (1976): 47-55. 60 Rawls, Theory, 62/54-55 rev., 92/79 rev. 61 Indeed, the defence which Stephen Darwall provides for Rawls’ Kantian interpretation in response to criticisms like those of Oliver Johnson depends on taking seriously Rawls’ claim that the original position’s procedurally renders both moral faculties, namely, rationality and a sense of justice. See Stephen Darwall, “A Defense of the Kantian Interpretation”, Ethics 86, no. 2 (1976): 164-170; and Stephen Darwall, “Is There a Kantian Foundation for Rawlsian Justice?” in John Rawls’ Theory of Social Justice, ed. Gene Blocker and Elizabeth Smith (Athens: Ohio University Press, 1980), 311-343, see in particular 323-327 where Darwall argues for the non-instrumental nature of the rationality implied by the desire for primary goods. Indeed, in “Kantian Constructivism in Moral Theory”, Rawls refers explicitly to Darwall’s arguments when defending justice as fairness from the criticisms Schopenhauer makes of Kant. Schopenhauer argues that Kantian principles are those which egoism cunningly accepts as a compromise because it appeals to what rational agents, as finite beings with needs, can consistently will to be universal

50 position models this necessity by the veil of ignorance constraints which prevent parties from choosing principles on the basis of the contingencies of their particular social, natural and economic situation. Although the parties are presented as rationally interested in the development and pursuit of their individual conception of the good, the veil of ignorance constraints model the obligation to perform an abstraction from instrumental private ends and to offer to each other fair conditions of cooperation. Indeed, Rawls claims that something like the veil of ignorance is implied by Kant’s doctrine of the Categorical Imperative. One of the conditions of the CI-procedure is that we test our maxim by considering what would be the case were it a universal law of nature, by which Kant supposes that we do not know our place within the imagined system of nature, that is, we do not know our particular finite needs and desires.62 63

Moreover, Rawls clearly insists that the motivation of hypothetical representatives in the original position should thus not be confused with that of real persons, who, in everyday life, accept and act upon the principles of justice as fairness.64 Such persons act justly because they limit their action in accordance with principles which conform to the idea of a reasonable public point of view, and this viewpoint makes justice necessary for those citizens.

Finally, insofar as the original position procedurally interprets both moral faculties, it is arguable that what is in one’s interest under the constraints of the original position is in

law. See Rawls, “Kantian Constructivism in Moral Theory”, 318-19; and Arthur Schopenhauer, On the Basis of Ethics (New York: Liberal Arts Press, 1965), part II, section 7. 62 Rawls, Theory, 118 rev. I refer here to the revised edition of Theory which includes a footnote in which Rawls claims that Kant’s doctrine of the categorical imperative implies something like a “veil of ignorance”. The footnote does not appear in the original edition. See also Rawls, Theory, 140-141/121 rev., 253/222 rev. 63 Stephen Darwall directs us to a claim in the “Groundwork” where Kant seems to advocate the use of a veil of ignorance: “By a kingdom I understand a systematic union of various rational beings through common laws. Now since laws determine ends in terms of their universal validity, if we abstract from the personal differences of rational beings as well as from all the content of their private ends, we shall be able to think of a whole of all ends in systematic connection…” (Immanuel Kant, “Groundwork of The Metaphysics of Morals”, in Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 37-108 at 4:433, emphasis added). See Darwall, “Is There a Kantian Foundation for Rawlsian Justice?” 323. 64 “The motivation of the persons in the original position must not be confused with the motivation of persons in everyday life who accept the principles that would be chosen and who have the corresponding sense of justice. In practical affairs, an individual does have a knowledge of his situation and he can, if he wishes, exploit contingencies to his advantage. Should his sense of justice move him to act on the principles of right that would be adopted in the original position… he voluntarily takes on the limitations expressed by this interpretation of the moral point of view”. Rawls, Theory, 148/128 rev.

51 one’s interest as a rational agent and not merely by virtue of some contingent desire for primary goods. Indeed, one can argue – and Rawls suggests as much himself – that even the purely rational interest of parties in primary goods as means for the pursuit of rational ends in no way excludes interest in the pursuit of the sense of justice. Indeed, towards the end of Theory, Rawls suggests that rational interest in primary goods includes interest in securing the means for exercising both moral powers, not merely instrumental advantage but also the sense of justice. In this sense, Rawls here enlarges the definition of rational interest to include interest in both capacities: our good – as defined by the first capacity – is determined by the plan of life which we would adopt with full deliberative rationality if the future were accurately foreseen and adequately realised in the imagination.65 Behind the veil, then, rational interest in securing for oneself a fair distribution of primary goods is not purely instrumental, since primary goods are themselves necessary for the pursuit of a sense of justice. Thus, both instrumental and moral motivation are united in the pursuit of a “fully deliberative rationality” from which it follows that rational desire, on the part of the parties who decide, is for those goods which are necessary for the pursuit of both instrumental and moral ends alike.

To be sure, as a number of commentators have noticed, the principles which parties could will from the original position are not categorical imperatives in the sense that they are valid for the will of any rational being in any circumstance, but they can be said to be valid for any rational human being, appropriately conceived as free and equal, who happens to be in the objective and subjective liberal-democratic circumstances of justice.66

65 Ibid., 421/370 rev. 66 See Darwall, “A Defense of the Kantian Interpretation”, 169; Gerald Doppelt, “Is Rawls’ Kantian Liberalism Coherent and Defensible?” Ethics 99, no. 4 (1989): 815-851, 841; Onora O’Neill, Constructions of Reason: Explorations of Kant’s Practical Philosophy (Cambridge, UK: Cambridge University Press, 1989), 206-218; and Onora O’Neill, “Constructivism in Rawls and Kant”, in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge, UK: Cambridge University Press, 2003), 347-366. Darwall thinks that Rawls’ qualification is Kantian in spirit whereas O’Neill does not. For O’Neill, truly Kantian categorical imperatives apply to the will of any rational being in any circumstances and not merely to the rational will of those in liberal-democratic circumstances of justice.

52 1.1.4 The principles

Insofar as the original position procedurally lays out the idea of an acceptable public point of view by means of its characterisation of the “parties” who decide and its specification of the veil of ignorance constraints, Rawls feels entitled to claim that the principles which parties would choose in such a position can be said to be the content of the idea.

As regards this content, Rawls argues that the parties in the original position, unaware of their particular situation in society, and rationally interested in guaranteeing for themselves the conditions necessary for formulating and pursuing a conception of their rational advantage, would choose to sidestep undesired outcomes. They would do so in two ways: (1) by, firstly, guaranteeing equal rights to the protection of basic liberties compatible with a similar system of liberty for all, thereby securing minimal requirements for a satisfactory standard of life; (2) and by, secondly, agreeing to social and economic inequalities only when these are arranged so that they are both: a. to the greatest benefit of the least advantaged; b. attached to offices and positions open to all under conditions of fair equality of opportunity.67

In their use the two principles are lexically ordered according to priority rules. The first priority rule stipulates that social and economic inequalities can in no way infringe equal liberties (the priority of liberty condition): the first principle guaranteeing equal liberty must be satisfied before the second principle permitting inequalities in welfare is brought into play. The second priority rule is that fair equality of opportunity (clause (b) of the second principle) must take priority over the difference principle (clause (a) of the second principle).68 Rawls claims that insofar as the circumstances under which agreement is reached are fair, the principles of justice agreed to are also fair. Hence, the name, “justice as fairness”.

67 Rawls, Theory, 302-303/266 rev., 60/53 rev. 68 Ibid., 302-303/266 rev.

1.2 A further criterion: feasibility requirements

In his 1980 article “Kantian Constructivism in Moral Theory”, Rawls discusses the “constructivist” nature of his interpretation of the Kantian idea of a suitable rational decision and, in so doing, uncovers a further criterion which a public conception of justice must satisfy. If a substantive public conception of justice is to be fully public, then it must be justified in a constructivist manner: principle construction begins with the considered judgments of the society in question and responds to a collective practical need.69 This means that the principles are to be maximally coherent with those considered moral and non-moral beliefs which we, the public, are unlikely to give up. I will explain (1) why Rawls thinks that the content of the idea of an acceptable public point of view requires constructivist justification and coherence with considered moral and non-moral judgments; and (2) why, for Rawls, the Kantian ideal of the person as free, equal, rational and socially cooperative must itself be subject to constructivist justification.

1.2.1 Constructivism and coherency requirements

Rawls remarks that justice as fairness begins with the idea that the most appropriate conception of justice for the basic structure of a democratic society is one which its citizens would adopt in a situation where there is fairness between them and they are represented solely as free and equal moral persons.70 There is no standpoint external to citizens’ own perspective from which they are bound in questions of justice arising between them.71 Principles are thereby “constructed” by a process of deliberation.

69 I would suggest that Christine Korsgaard’s interpretation of the constructivist method of problem solving in Rawls is correct. She argues that the constructivist solution is determined by the type of practical problem to which it responds. In the case of Rawls, the problem concerns the principles which liberal democracy can itself determine as its own which thus requires that principles be those which are acceptable to the set of persons included in the liberal democracy. See Christine Korsgaard, “Rawls and Kant: On the Primacy of the Practical”, in Proceedings of the Eighth International Kant Congress (Memphis 1995) (Miwaukee, WI: Marquette University Press, 1995), Volume 1, Part 3, Sections 3M-3S, 1165-1174 at 1169-1171; and Christine Korsgaard, “Realism and Constructivism in Twentieth-Century Moral Philosophy”, in APA Centennial Supplement: The Journal of Philosophical Research (Charlottesville, Virginia: The Philosophy Documentation Center, 2003), 99-122 at 113-115. 70 Rawls, “Kantian Constructivism in Moral Theory”, 310. 71 Ibid., 311.

54 Rawls defines the features of a constructivist view in contrast to those of a foundationalist and moral realist view like rational intuitionism.72 First, constructivism’s “real task” is practical not epistemological.73 Unlike moral realist views such as rational intuitionism – whose first principles are self-evident truths given by the nature of things and known by rational intuition74 – constructivism frames its first principles to meet particular social problems and to provide a public basis, by means of which citizens can justify, to one another, their common institutions. A constructivist conception need only be precise enough to achieve this result.75

Second, constructivism’s method begins from the standpoint of persons as agents of construction. Whereas the rational intuitionist method requires quite simply the correct recognition of first principles, whose content is already fixed, constructivism establishes a framework for deliberation which relies on our own powers of judgment, powers which are not fixed once and for all but are developed and shaped by a shared public culture.76 Constructivism seeks in this way to establish a suitable connection between a particular ideal of the person – implicitly affirmed by the public culture – and first principles of justice, by means of a procedure of construction or, as Rawls also puts it, a contract device.77 Thus, where rational intuitionism implies but a sparse notion of the person as a cogniser of moral truth (able to grasp, and be motivated to act on, first principles),78 constructivism requires a complex ideal of the person, one who is conceived in a certain way and as facing certain problems. Principles are the result of a construction which expresses conceptions that citizens have of themselves and of their society.

72 Rawls writes that almost all defenders of moral foundationalism have been intuitionists – Price, Moore, Sidgwick, Prichard, and Ross – and that constructivism contrasts with such theories. See Richard Price, A Review of the Principal Questions of Morals, 3rd ed. (Oxford: The Clarendon Press, 1948); George Edwards Moore, Principia Ethica (Cambridge: The University Press, 1903), esp. chapters 1 & 6; Sidgwick, The Methods of Ethics; Harold Arthur Prichard, Moral Obligation (Oxford: The Clarendon Press, 1949), esp. “Does moral philosophy rest on a mistake?”; William David Ross, The Right and the Good (Oxford: The Clarendon Press, 1930), esp. chapters 1-2. 73 Rawls, “Kantian Constructivism in Moral Theory”, 306, 341. 74 Ibid., 344. 75 Ibid., 347. 76 Ibid., 347. 77 Ibid., 304. 78 Ibid., 346.

55 Third, if constructivism is indeed to generate an appropriate public basis for justification, then it must also be coherentist: it must cohere with those considered judgments about justice which we are unlikely to give up, thus clarifying the reason for our reluctance to renounce them. Again, the coherentist requirement is implied by the constructivist view that there is no standpoint external to citizens’ own perspective when dealing with questions of justice which arise between them.

1.2.2 Constructivism and the Kantian ideal of the person

Constructivism incorporates an ideal of the person, specified in a particular way and facing certain problems, and this means that there are as many constructivisms as there are personhood ideals. For Rawls, both Hobbesian liberalism79 and average utilitarianism are compatible with constructivism.80 Both refer to a particular personhood ideal as part of a contract device, whose outcome determines the content of first principles of justice. Moreover, both contract devices are constrained by the first “Kantian” requirement, namely, that they be acceptable to all when publicised and that they indeed be public. Thus, what distinguishes Rawls’ constructivism from these alternatives is its “Kantian” ideal of the person and its conception of necessity caught up with that ideal: Rawls’ Kantian constructivism seeks the principles upon which free and equal, rational and socially cooperative moral persons would themselves agree if they were fairly represented solely as such and if they were all involved in the decision.

Unlike Kantian persons, persons in a “Hobbesian” contract are, according to Rawls, atomistic rational egoists endowed solely with the faculty of instrumental rationality and not with the second moral faculty of social cooperativeness.81 Insofar as self-, family- and group-interest is considered to be the only pertinent political motivation available, Hobbesian partners choose principles of merely instrumental prudence and not of justice.82 Insofar as cooperative institutions are extremely fragile, where persons might

79 Rawls, “The Idea of Overlapping Consensus”, 422. 80 Rawls, “Kantian Constructivism in Moral Theory”, 323. 81 See Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996). 82 John Rawls, “Justice as Fairness”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 47-73 at 56n; John Rawls, “Justice as Reciprocity”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 190-224 at 204-205; and John Rawls, “The Idea of Overlapping Consensus”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 421-442 at 422 and 423.

56 at any moment attempt to secure their own interests at others’ expense, a powerful sovereign agency with effective penal machinery is required to guarantee the security of all.83 While instrumental motivation is, indeed, a part of the Kantian ideal, it becomes purely Hobbesian when it is given free rein over the non-instrumental commitment to the idea of a reasonable social point of view.

It is also by reference to a constructivist procedure that the principle of average utilitarianism can be defended against its classical version.84 Only when the decision on principles is considered from the perspective of free and equal persons, whose moral relevancy depends, in this case, on their capacity to satisfy desires and their willingness to take the same risks, can the average utility principle be favoured over its classical alternative. Given the choice, such persons would choose to maximise their individual total utility (the average utility principle), having no motivation for interest in total utility sum (the classical utility principle) which ignores the large differences in well- being that can exist among individuals.

We have already noted, as Rawls now does explicitly in “Kantian Constructivism in Moral Theory”, that the original position can be said to model the Kantian personhood ideal via the two procedures which the device of representation incorporates. It models not only instrumental rationality (by characterising the contractual parties as instrumentally rational) but also the sense of justice (by means of the veil of ignorance constraints).85 It is the third aforementioned constructivist characteristic – namely, that constructivist conceptions are also coherentist – which provides further justification for the Kantian personhood ideal and which rules out the Hobbesian and average utilitarian alternatives. If there really is no standpoint external to parties’ own perspective, then a personhood ideal must be justified relative to different bodies of evidence. More particularly, a personhood ideal must satisfy two requirements. First, it must cohere

83 John Rawls, “The Sense of Justice”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 96-116 at 104; and Rawls, Theory, 240/211 rev. 84 Rawls, Theory, §27-8. 85 Rawls writes “…I focus [here] on the more obscure notion of the Reasonable and how it is represented in the original position. This representing is done essentially by the nature of the constraints within which the parties’ deliberations take place and which define their circumstances with respect to one another. The Reasonable is incorporate into the background setup of the original position which frames the discussions of the parties and situates them symmetrically. More specifically… parties are required to adopt a public conception of justice and must assess its first principles with this condition in mind”. Rawls, “Kantian Constructivism in Moral Theory”, 316.

57 with non-moral judgments about “normal” empirical identity established by the human sciences, insofar as these conclusions refer to the idea of an acceptable public point of view in science. Second, it must cohere with considered moral judgments about justice which we are unlikely to give up, insofar as these judgments refer to the idea of an acceptable public point of view in public, practical affairs. If constructivism did not satisfy such coherentist requirements, it would not respond to the public practical problem for which it is designed.

As regards the first requirement, Rawls explains that the conclusions of the human sciences impose “feasibility” requirements on personhood ideals.86 Whereas the human sciences provide descriptions of human needs and capacities, moral and political theory provides normative ideals of the type of person which we hope to be. The descriptions of the human sciences represent “the constraints that any sound criterion of identity must satisfy”87 because they describe the minimal conditions of mental and physical health necessary for any social cooperation whatsoever. The human sciences describe the conditions of physical and mental continuity, of the capacity to reason and use language and, most importantly, of the capacity to cooperate with others. A public conception must be rejected if its incorporated personhood ideal requires physical or psychological characteristics which would violate the minimal conditions which descriptivist conceptions indicate are necessary for personal identity, survival and intersubjective cooperation.

However, says Rawls, this first feasibility constraint imposed by the non-moral judgments of the human sciences is rather weak: standard moral theories tend to satisfy such constraints.88 The first feasibility constraint thus underdetermines choice among the different ideals – Hobbesian, average utilitarian and Kantian – because non-moral findings are consistent with such ideals, providing no conclusive evidence for the validity of one over another.89 The instrumental self-interest of the Hobbesian person is

86 Rawls, “The Independence of Moral Theory”, 295-301. 87 Ibid., 296. 88 Ibid., 296. For further discussion of the “undetermined” nature of personhood ideals in constructivist ethics, or, in other words, the impossibility of determining normative personhood ideals from the empirical descriptions of the person established by the human sciences. David Brink, “Rawlsian Constructivism in Moral Theory”, Canadian Journal of Philosophy 17 (1987): 71-90. 89 Rawls, “The Independence of Moral Theory”, 296, 301.

58 fully compatible with the conclusions of the human sciences: in Hobbes’ social context, the desire to pursue a rational life-project and to seek the positive recognition of certain significant others is the very reason why individuals require a powerful sovereign to guarantee for all the conditions for basic social cooperation and for mental and physical survival. Equally compatible with the empirical descriptions of personality is the average utilitarian personhood ideal: the interest of persons in the satisfaction of their desires leads them to defend the average utility principle so as to guarantee for themselves the right to survival and to the pursuit of their life-projects in satisfying cooperative forms. Finally, Rawlsian persons’ interest in their two moral faculties (for formulating and pursing a conception of the good and for formulating and abiding by a conception of justice) also accords with descriptivist requirements: by acting in accordance with principles of justice, persons express their nature as free, equal, rational and socially cooperative beings “subject to the general conditions of human life” as we know it.90

It is because the first feasibility coherence constraint provides no conclusive evidence for the validity of one personhood ideal over another that a second feasibility coherence constraint comes into play: a personhood ideal must also cohere with the considered moral judgments about justice of the society in question.91 Such judgments are “provisional fixed points which we presume any conception of justice must fit”.92 The considered judgments include the convictions that religious intolerance, racial and sexual discrimination, the institution of slavery, manipulation and torture are unjust. It is because the Kantian personhood ideal coheres more clearly with such judgments – permitting what Rawls calls a “reflective equilibrium” between principles and considered judgments93 – that Rawls prefers it to the alternatives. The average utility

90 Rawls, Theory, 253/222 rev. 91 Gerald Doppelt and William Galston argue that Rawls does not offer criteria for adjudicating between different competing personhood ideals, that is, for choosing one personhood ideal over another. My own argument reveals that Rawls does offer such criteria: constructivist conceptions must satisfy the two feasibility requirements, namely, coherence with non-moral judgments about the person established by the human sciences and coherence with considered moral judgments of the society in question. See Gerald Doppelt, “Rawls’ Kantian Ideal and the Viability of Modern Liberalism”, Inquiry 31 (1988): 413- 49; Doppelt, “Is Rawls’ Kantian Liberalism Coherent and Defensible?”; William Galston, “Rawls’ Dewey Lectures”, Political Theory 10, no. 4 (1982): 492-519. 92 Rawls, Theory, 20/18 rev., see also §9. 93 The idea of coherentist justification is introduced in Theory via the notion of “reflective equilibrium”, a method which applies to individuals – you and me – who assess the public conception (Rawls, Theory, 20/18-19 rev., §9, 578-579/507-508 rev.). First, we are to identify our considered judgments about justice.

59 principle, he argues, runs the risk of authorising judgments we think unjust. Persons, represented by parties who each, without exception, follow the principle of insufficient reason in their calculations and thus take the same risks, are able to justify to each other the institution of slavery on the basis that it produces the greatest average happiness, and that each, in the initial contractual situation, would choose the average utility principle even at risk of becoming subsequently a slave.94 Since such a judgment is intolerable to persons in contemporary liberal democratic societies, the average utility personhood ideal must be rejected.95 Equally untenable in today’s society is the Hobbesian view that purely instrumental interest is the only available, or the only politically relevant, kind of motivation. Our society, Rawls will argue, is no longer so fragmented by those sectarian divisions and those conflicts of interest which once characterised Hobbes’ historical moment.96 Justice has no other foundations apart from its reference to the acceptability of its viewpoint: the presuppositions which are needed to defend justice are practical, that is, their significance is rooted in our own capacity to

Second, one formulates principles which would account for these considered judgments in one coherent scheme, principles which, if applied, would lead to the same set of judgments. Finally, one responds to the divergence between one’s principles and one’s considered judgments: one may need to drop or revise some judgments which principles fail to account for, reformulate and expand others, or modify the principles themselves. It is an equilibrium because our principles and judgments coincide; and it is reflective since we know to what principles our judgments conform and the premises of their derivation (Rawls, Theory, 20/18 rev.). It is not enough, however, that a person succeeds in finding principles for his or her carefully considered judgments about justice. Such would be a purely descriptive understanding. Rather, Rawls understands the method as deliberative: reflective equilibrium determines what we should believe about justice not simply what we do believe. Principles are ultimately to render systematic those judgments about justice which would survive the rational consideration of all feasible conceptions with their reasons (Rawls, Theory, 49-50/43 rev.), what Rawls calls “wide reflective equilibrium”, since this requires that an individual’s considered judgments be themselves subject to the idea of an acceptable public point of view. Rawls, “The Independence of Moral Theory”, 298; and Rawls, “Kantian Constructivism in Moral Theory”, 321. 94 Rawls, Theory, 167/144-145 rev. 95 Later in Political Liberalism Rawls does qualify this critique, limiting it to utilitarian theories like those of Sidgwick and Brandt which aim to offer an account of the good of individuals as they must understand it, when they are rational, that is, when the good is characterised hedonistically or in terms of satisfaction of desire or interests. Rawls admits that, as T.M. Scanlon maintains, there is another idea of utility often found in welfare economics which does not intend to give an account of individuals’ good as they should understand it from a purely personal point of view, but rather aims to characterise individuals’ good more generally, abstracting from how they more specifically understand it in a manner which is appropriately impartial between persons. Rawls is not dealing with the latter version but with the former. See T. M. Scanlon, “The Moral Basis of Interpersonal Comparisons”, in Interpersonal Comparisons of Well-Being, ed. J. Elster and J. Roemer (Cambridge: Cambridge University Press, 1991), 22-30. 96 “Hobbes did not think this form of psychological egoism was true; but he thought it was accurate enough for his purposes. The assumption was a political one, adopted to give his views practical effect. In a society fragmented by sectarian divisions and warring interests, he saw no other common foothold for political argument. How far Hobbes’ perception of the situation was accurate we need not consider, for in our case matters are different”. Rawls, “The Idea of Overlapping Consensus”, 422, emphasis added.

60 provide reasons and what is important about justice is that its reasoning also be one which all citizens have good reason to regard as authoritative.

The Kantian ideal of personhood is thus favoured for coherentist reasons: it coheres more clearly than its average utilitarian counterpart with our considered judgments of justice and it clarifies why we are unlikely to give up certain judgments for the sake of a greater average utility. First, parties can sidestep undesired outcomes of the average utility principle (slavery etc.) by choosing to guarantee equal rights to the protection of basic liberties compatible with a similar system of liberty for all and thus guaranteeing everyone the minimal requirements for a satisfactory standard of life, and by agreeing to social and economic inequalities only under conditions which do not infringe the former liberties, which are to the greatest benefit of the least advantaged and which satisfy an equality of opportunity condition. Second, not only do such principles confirm those judgments which were fixed points in our thinking (namely, that slavery, tyranny, exploitation, and persecution is wrong), they also do not produce results which conflict with certain other considered judgments that we would be loathe to part with. In its practice, the difference principle, Rawls argues, should not lead to a callous meritocratic society and if it did, the public conception of justice would need to be rejected. Third, such principles provide criteria for ordering conflicting claims in importance because, once the root of considered judgments have been appropriately clarified, reflective equilibrium will require that certain judgments be rejected rather than the principles changed. The systematisation that the principles of justice provide permits Rawls to argue that we should abandon the view that economic reward be proportional to desert, for the original position shows undeserved accidents of birth to be arbitrary from a moral point of view.97 Moreover, the view that individuals have a claim of justice to the shares they could command in a free market must also be abandoned because the original position says that free market results are just only when appropriate background conditions of justice (laid out by the principles of justice) have been assured.98 The

97 Rawls, Theory, 102-104/88-89 rev., §48. I note, in passing that both the claim that such accidents are arbitrary, from a moral point of view, and the claim that the argument from the original position, indeed, reveals such accidents to be arbitrary are controversial. See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), 224-227; Michael Zuckert, “Justice Deserted: A Critique of Rawls’ A Theory of Justice”, Polity 13, no. 3 (1981): 466-483 at 477; Galston, “Rawls’ Dewey Lectures”, 516. However, I will not assess these claims here because my primary purpose here is to lay out the method which Rawls’ theory incorporates. 98 Rawls, Theory, 70-75/61-65 rev.

61 systematisation that the principles provide – or, as Rawls calls it, the “wide reflective equilibrium” between principles and considered judgments – is, thus, far from conservative since it demands the rejection of some judgments which are nonetheless part of our tradition if these contradict the fundamental base which has been shown to justify our other more essential considered judgments.

1.3 A final criterion: stability

Rawls claims that a final criterion would be satisfied by the conception, namely, stability. If a conception is indeed to respond to the problem for which it is designed, then it must be actually capable of generating the support of those persons who are to employ it. Rawls thus argues that a society whose public institutions are well-ordered by principles of justice would indeed generate its own support:99 insofar as coherence requirements have been met, citizens will be able to see that those principles affirm their own individual good subject to limits of fairness and will thus tend to affirm and abide by those principles.

We now have the elements at hand to define the criteria which inform Rawls’ early formulation of the “art of the possible”. Not only does the conception of justice as fairness interpret the “characteristic structure” of Kant’s idea of rational autonomy – principles are both publicisable and public; acceptable to moral persons who are represented as free, equal, rational and socially cooperative; and obligatory by reference to fully collective judgment and not by reference to particular, contingent ends – this very structure is itself justified by means of a constructivist theory of justification which asks after the particular practical problem implicating the set of persons who experience it as their problem. There being no standpoint external to citizens’ own perspective when dealing with practical questions of justice, these criteria are themselves justified by reference to the society for which they are designed: they must themselves be implicitly affirmed by the society in question for otherwise they would not succeed in providing a workable, public basis by means of which citizens can justify to one another their common institutions. Rawls claims that his conception is realistic insofar as it justifies itself constructively, determining its solution from a participant’s standpoint

99 Ibid., 454-455/398-399 rev.

62 such that the public point of view it constructs can be deemed appropriate for each participant. Since everyone’s good is affirmed, all acquire inclinations to uphold the scheme, which leads to the stability of the conception through time.100

1.4 The critical function of justice as fairness

Rawls is able to claim that his public conception of justice plays a critical role in relation to the actualisation of a certain concept of individual freedom. Regarding individual freedom, Rawls thinks that when society is well-ordered by the principles of justice, citizens are able see their public institutions as those which they can freely affirm. Indeed, the stability of the public conception is guaranteed by persons actually being willing to endorse it.

Now, in his later work, Rawls will re-define his concept of individual freedom and its relation to the content of the idea of a well-ordered society. He will concede that the account of how the theory satisfies the criterion of stability is unrealistic. It does not satisfy the empirical requirement that it be congenial to our society which is characterised, as communitarian critics quickly point out, by a plurality of reasonable but incompatible comprehensive doctrines. To demand that citizens who affirm reasonable but incompatible comprehensive doctrines all come to view themselves as free in exactly the same way, thereby supporting the very same conception of justice as fairness for the very same reasons, is not itself a reasonable requirement. It is unlikely that such citizens will resolve their differences around a shared moral comprehensive doctrine and the gross coercion required to enforce such a doctrine would render the conception incompatible with the very freedom it is intended to permit, thereby invalidating it as an acceptable public point of view. Rawls concedes that: [t]he fact of reasonable pluralism shows that, as used in Theory, the idea of a well-ordered society of justice as fairness is unrealistic. This is because it is inconsistent with realising its own principles under the best of foreseeable conditions. The account of the stability of a well-ordered society in part III is therefore also unrealistic and must be recast.101

100 Ibid., 177/155 rev. 101 Rawls, Political Liberalism, xix.

63 Fixing the problem will require a family of new ideas, including, among others, the idea of a conception of justice which is political rather than moral and comprehensive, of a constructivism which is political rather than moral, of overlapping rather than simple consensus, and of public reason.

The modifications depend, then, on a more realistic conception of the basis of stability given the fact of reasonable pluralism. The reference to the fact of reasonable pluralism in Rawls’ later work has stirred some to claim that Rawls modifications are responses to criticisms raised by communitarians.102 Communitarians, like Michael Sandel, argued that the criteria which the early Rawls thinks conceptions of justice should satisfy – that they be publicisable and public, subject to the acceptance of free, equal, and rational persons, and obligatory by reference to fully collective judgment and not to particular contingent ends – are unrealistic insofar as they depend on an inaccurate conception of the unified and separate self who is autonomous prior to the choices made in the course of experience. Sandel argues that the unity of the autonomous self is not antecedently established: rather, selves are experientially constituted and fashioned by obligations which they have not chosen (obligations to communities, associations, churches, families and so on).103 Reasoning, Sandel argues, cannot and should not be required to be neutral to the intersubjective ties and communal loyalties which give human lives the very moral particularity and diversity which makes justice necessary. What is required is a conception of civic virtue as a common good, not an idea of a well-ordered society founded on a public conception of justice which is neutral among ends. In like manner, Charles Taylor and Axel Honneth, drawing on the empirical findings of the human sciences, argue that the ability to evaluate objectively our own desires – an ability required for liberty to be effective and not merely formal – depends on the internalisation of the confirmations or corrections of these desires by other people who also orient themselves towards our own good and thus, that public conceptions are to be

102 Ibid., xix. 103 See, for example, the short discussion on the Rawlsian self which Michael Sandel provides in Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982). See “The primacy of justice and the priority of the self” (15-24) and the discussion of the self in Rawls’ original position (93-95).

64 assessed with reference to their capacity to allow the individual to validate his or her values in relations of solidarity.104

Rawls, however, denies that the changes in the account of stability are responses to such criticisms.105 First, Rawls continues to insist that normative, moral ideals of personhood should not be confused with descriptivist conceptions of the human sciences. As we saw earlier, although the descriptivist findings of the human sciences do indeed impose “feasibility” requirements on personhood ideals, requiring that a public conception be rejected if its normative ideal violates minimal conditions for effective identity, survival and intersubjective cooperation, Rawls nonetheless insists that personhood ideals and descriptivist conceptions lie on different levels, the former normative and moral, the latter quasi-empirical.106 In this sense, the descriptivist conceptions of personhood offered by Sandel, Taylor and Honneth, among others, in no way compromise the validity of normative personhood ideals. Second, and consequently, Rawls insists that the modifications to his normative theory are thus demanded for constructivist reasons alone insofar as the problem of normative public principles concerns a society characterised by reasonable pluralism. If a practical solution – a conception of justice – is to provide a workable, public basis by means of which citizens can justify to one

104 See Charles Taylor, “What is human agency?” in The Self: Psychological and Philosophical Issues, ed. Theodore Mischel (Oxford: Blackwell, 1977), 103-35; Taylor, “The Politics of Recognition”; Charles Taylor, “Atomism”, in Communitarianism and Individualism, ed. Shlomo Avineri and Avner de-Shalit (Oxford: Oxford University Press, 1992), 29-50. See Honneth, “The Limits of Liberalism”; Honneth, “Recognition and Justice: Outline of a Plural Theory of Justice”; Honneth, “From Struggles for Recognition to a Plural Concept of Justice: An Interview with Axel Honneth (Interviewed by Gwynn Markle)”; and Honneth and Anderson, “Autonomy, Vulnerability, Recognition and Justice”. 105 Rawls states later that “I think Michael Sandel is mistaken in supposing that the original position involves a conception of the self ‘shorn of all its contingently-given attributes’, a self that ‘assumes a kind of supra-empirical status… and given prior to its ends, a pure subject of agency and possession, ultimately thin’ ”. Rawls, “Justice as Fairness: Political Not Metaphysical”, 403. 106 As concerns the difference between normative ideals of personhood and descriptivist conceptions, Rainer Forst is correct to remark that the ideal of the person as free and equal with a conception of the good and a sense of justice “is not a theory of the self… the concepts lie on different levels, one ontological, one abstract and normative. To argue for individual rights is not to argue for individualist life-plans: legal rights do not replace relations of love, affection, friendship, and solidarity… they secure the needs of concrete persons”. See Rainer Forst, “How (Not) to Speak about Identity: The Concept of the Person in A Theory of Justice”, Philosophy & Social Criticism 18, no. 3-4 (1992): 293-312 at 299. Unfortunately, the distinction between “normative ideals” of autonomous personhood and descriptivist theories of the self is overlooked by Bryce Weber when he uses Honneth quasi-empirical descriptions of intact identify formation to argue against liberal ideals of autonomous subjectivity. See Bryce Weber, “Negative Autonomy and the Intuitions of Democracy”, Philosophy & Social Criticism 32, no. 3 (2006): 325–346. See Axel Honneth, “The Social Dynamics of Disrespect: On the Location of Critical Theory Today”, Constellations 1, no. 2 (1994): 255-269; Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts; Axel Honneth, The Fragmented World of the Social: Essays in Social and Political Philosophy, trans. C. W. Wright (Albany, NY: SUNY Press, 1995).

65 another their common institutions, then that solution must itself be seen to be acceptable or reasonable by these very citizens. Indeed, as Rawls will later claim, all changes in his later work are consequences of the attempt to render the normative conception acceptable or reasonable to these citizens,107 such that the view can truly be said to provide the content of a reasonable public point of view.

A society well-ordered by two principles can be said to guarantee – in a realistic manner – the material and institutional conditions for the effective freedom of each citizen. The idea of the well-ordered society is that to which societies in similar liberal-democratic circumstances of justice should aspire and it thus provides “a standard for judging actual institutions”.108 Public institutions can be either legitimately affirmed or criticised in light of the public point of view which the well-ordered society is to institutionalise.

I hope to have shown that the original position operationalises what Rawls takes to be the “moral force” of Kant’s idea of rational autonomy. For Kant, persons are autonomous when they choose to act only on those principles which all other rational beings could also will. Rawls thinks that the principles that parties would choose, in an original position which interprets Kant’s requirements, will be both publicisable and public, able to be accepted by free and equal moral persons, and obligatory by reference to fully collective judgment. Given that the two principles which he proposes also satisfy feasibility constraints, cohering with our considered moral and non-moral judgments, Rawls believes that the conception of justice will generate its own support. He subscribes to the “art of the possible” because he believes that Kant’s moral idea can be interpreted and realised in public institutions.

In Chapter 2, I will demonstrate that Habermas, too, seeks to interpret Kant’s conception of an “impartial standpoint” among autonomous individuals. With Rawls, Habermas believes that Kant’s idea can be realised, this time by the satisfaction of the procedures of discourse ethics. This suggests that Habermas, too, subscribes to the “art of the possible”. In Chapters 4 and 5, I will then be able to contrast Rawls’ and Habermas’ interpretations of Kant with those which Levinas and Derrida defend.

107 Rawls, Political Liberalism, xviii. 108 Rawls, Theory, 227/199 rev.

66 Levinas effectively emphasises the non-equivalence of non-formal ethical obligation, on the one hand, and formal equality. Consequently, he is wary of assigning a critical function to Kant’s idea of impartiality. Derrida, I will argue, emphasises both sides of the coin, defending both the possibility and impossibility of determining justice’s content in the form of laws, principles and procedures. Before marking out the central difference between the constructive and reconstructive approach, on the one hand, and deconstructive justice, on the other, I will turn to Habermas, so as to demonstrate that he, too, subscribes to what, following Rawls, I am referring to as “the art of the possible”.

Examining the central difference between the approaches, this first stage of my argument does not yet insist on the complementarity of the traditions. The complementarity argument will be developed in a second stage. However, by using Kant’s practical philosophy as a common reference for the comparison of the constructive, reconstructive and deconstructive traditions, I hope to insist, even at this first stage, that the difference between the traditions is not unbridgeable. In this sense, I will distance myself from the popular liberal view which insists on the incommensurability of the constructive and deconstructive projects. Kant’s practical philosophy is a shared reference, and this fact promises to facilitate their engagement.

67 Chapter Two

The Early Habermas: A Procedural Interpretation of Kant’s Moral Standpoint

What raises us out of nature is the only thing whose nature we can know: language… Our first sentence expresses unequivocally the intention of universal an unconstrained consensus. Habermas, “Appendix”, 314.

Habermas’ early comments on Rawls’ Theory indicate that, whilst he shares Rawls’ basic intention of restoring normative judgment as the legitimate source of political decision and, more particularly, of clarifying the procedures which Kant’s moral notion of autonomy implies with its associated idea of an “impartial standpoint”, he is not convinced that Theory’s substantive “decision procedure”, with its two principles, correctly interprets Kant’s moral idea.1

Two main criticisms can be drawn from Habermas’ early comments. First, Rawls does not actually justify the very notion of “impartial standpoint” (what Habermas will equate with “the principle of universalisation”).2 Rawls implicitly concedes, Habermas claims, that the notion is contingent upon the judgments of a specifically democratic society. In other words, the plausibility of the “impartial standpoint” depends not on its own intrinsic necessity, but rather on its capacity to systematise extant judgments about democratic justice.3 In contrast, Habermas intends to provide a justification of the

1 In Habermas’ early work, brief references to Rawls can be found in the following texts: Habermas, Communication and the Evolution of Society, trans. Thomas McCarthy (Boston: Beacon Press, 1979), 184 and 205; Habermas, The Theory of Communicative Action (Volume 1), 436, see also 230; and Habermas, The Theory of Communicative Action (Volume 2), 290, 411, see also 92. More extensive commentary occurs in Habermas, Moral Consciousness and Communicative Action, 43, 66, 79, 94, 116- 117, 119, 122, 198, 213-14. 2 Habermas, Moral Consciousness and Communicative Action, 78. 3 Habermas is not alone in recognising that Theory rests on constructively justified criteria, although, as I noted in Chapter 1, other commentators like Stephen Darwall do not view the contextualised justification

68 “impartial standpoint” itself, one which indicates the necessity of the standpoint for all persons capable of any social interaction whatsoever.4 Via a pragmatic analysis of argumentation, he indicates the necessity and universality of a principle of universalisation (U) which requires that “all affected can freely accept the consequences and the side-effects that the general observance of a controversial norm can be expected to have for the satisfaction of interests of each individual”.5

Second, Rawls’ “decision procedure” is not a properly procedural interpretation of the “impartial standpoint”. It is rather both monological and substantive. In contrast to this substantivism, Habermas proposes a procedural principle (D) to which all argumentative practices concerning the validity of norms are to be subject, deriving this procedure from the principle of universalisation. (D) requires that “only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse”.6 The principle is procedural in the sense that it does not itself specify the substantive content of a moral view but rather ascribes this task to participants themselves in discourse or intersubjective (not monological) argumentation. Habermas claims that (D) guarantees the fairness of any conceivable substantive agreement which is reached under its conditions which means, for Habermas, that Rawls’ substantive “decision procedure” and its principles of justice must themselves be subject to discursive testing, according to procedure (D). Since Rawls’ defence of Theory’s substantive principles does not require them to be validated in discourse with others, Habermas argues that it is merely monological. Against Rawls, Habermas claims that philosophy cannot “make any kind of substantive contribution…

of the moral principle as a problem. Darwall is among those who point out that Rawls’ constructivist defence of the Kantian criteria (publicity; subject to the acceptance of free, equal, rational and socially cooperative moral persons; obligatory by reference to fully collective judgment; and satisfaction of coherentist feasibility constraints) entails that the principles which parties will from the original position are not valid for the will of any rational being in any circumstances, but rather are valid for any rational human being (appropriately conceived) in the objective and subjective liberal-democratic circumstances of justice. See Darwall, “A Defense of the Kantian Interpretation”, 169. 4 As Thomas McCarthy remarks, “the burden of proof on any moral theorist who hopes to ground a conception of justice in anything more universal than the “settled convictions” of our political cultures is enormous… Habermas wants to do just that… to show that our basic moral intuitions spring from something deeper and more universal than contingent features of our tradition”. Thomas McCarthy, “Introduction”, in Jürgen Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge, MA: The MIT Press, 1990), vii-xiii at ix. 5 Habermas, Moral Consciousness and Communicative Action, 93. 6 Ibid., 93.

69 [it] does not have privileged access to particular moral truths”.7 All philosophy can do is “explain and ground the moral point of view”,8 identifying its procedural criteria and thereby guiding the attempts to substantively realise it in historical form.

Now, these two criticisms are obviously rather difficult to follow at this stage without understanding of what Habermas means when he claims to justify the impartial standpoint (U) and to derive from it a uniquely procedural account of moral decision (D), a procedure which will also be shown to guarantee the legitimacy of law (see Chapter 3.2.1.1 and Chapter 3.2.1.2).9 In what follows then, I intend to explain the elements of Habermas’ own reformulation of Kant’s concept of moral judgment. Habermas will attempt to overcome the separation between empirical interest and noumenal moral decision by uniting practical reason with its empirical forms, namely, action and social interaction (2.1). Habermas will then reformulate Kant’s categorical imperative procedure in terms of the determination of the “generalised interest”. By means of the “rational reconstruction” of the presuppositions of consensually-oriented discourse, Habermas will argue first, for the necessity and universality of principle (U), which interprets the practical intent of Kant’s moral principle, and, second, for the procedural principle (D), in relation to which contested validity claims can be intersubjectively redeemed in discourse (2.2). I will then be in a position to explore more carefully the main differences between Habermas’ and the early Rawls’ respective versions of Kant’s impartial standpoint, as this concerns their respective accounts of the critical function of justice (2.3).

I will conclude by indicating that the debate turns at all times around the nature and limits of the “art of the possible”. Both theorists assume that a correct interpretation of the practical intent of Kant’s idea of autonomy is possible and that the interpretation

7 Ibid., 211. 8 Ibid., 211. 9 Given that this thesis is concerned with social justice after Kant, it may seem overly gratuitous to devote a chapter to Habermas’ procedural account of moral decision. However, as Thomas McCarthy points out, “as with Kant, it is not possible to understand Habermas’ legal and political theory without also examining his moral theory. They are, in fact, so closely interconnected that one might, with some justification, view his moral theory as a theory of “political morality” – of social justice rather than of moral virtue, character, feelings, and judgment, or of ethical life, community, and the good – and his political theory as being, at least at the core, a “moral politics” – as privileging strictly universal laws over the conflict and compromise of interests. See Thomas McCarthy, “Practical Discourse: On the Relation of Morality to Politics”, in his Ideals and Illusions: On Reconstruction and Deconstruction in Contemporary Critical Theory (Cambridge, MA: The MIT Press, 1993), 181-199 at 181.

70 carries critical force. Thus, the debate turns, first, around the question of the correct interpretation of the “impartial standpoint”, and second, around the articulation of the critical potential of the view. Habermas believes that Rawls’ approach does not correctly identify impartial procedures and thus fails to determine the proper limits of the “art of the possible”. Consequently, Habermas believes that Rawls’ interpretation does not fulfil its critical function. Indeed, it is around these two issues that their 1995- 1996 debate will turn, which is one reason why Habermas describes the debate as a “family quarrel” (see Chapter 3). 10

Insisting that Rawls and Habermas unite across their differences by assuming the possibility of determining the content of Kant’s ideals of autonomy and impartiality, I will then be able to identify, in Chapters 4 and 5, their essential point of difference with Levinas’ and Derrida’s interpretations of Kant. As indicated, I will demonstrate that Levinas emphasises the non-equivalence of ethics and impartiality, and that Derrida, distinguishing himself still further, emphasises both the possibility and impossibility of realising the impartial standpoint.

2.1 Reformulating Kant on reason and interest: reason as interested

In his early texts of the 1960’s, The Structural Transformation of the Public Sphere11 and Knowledge and Human Interests,12 Habermas draws on Kant in order to develop his own account of reason in its relation to interest. Although Habermas intends to pursue the practical intent of Kant’s account of moral decision – namely, to restore practical reason as the ground of normative judgment – he finds this account unacceptable in its original form. Like Rawls, Habermas argues that Kant’s rigorous distinction between, on one hand, the empirical will, which is pre-determined by material interests, and the noumenal, moral will, which is determined by laws of pure reason alone, is

10 Jürgen Habermas, “Reconciliation through the Public Use of Reason: Remarks on John Rawls’ Political Liberalism”, in The Inclusion of the Other, trans. Ciaran Cronin (Cambridge, MA: The MIT Press, 1998), 50-73 at 50. 11 Jürgen Habermas, The Structural Transformation of the Public Sphere, trans. Thomas Burger (Cambridge, MA: The MIT Press, 1989). First published in 1962. 12 Jürgen Habermas, Knowledge and Human Interests, trans. Jeremy J. Shapiro (Cambridge, UK: Polity Press, 1987). First published in 1962.

71 unsustainable. Instead, Habermas unites practical reason with empirical interest, arguing that the rational will always manifests itself in empirical forms.

Before turning to the details of Habermas’ “empirical” interpretation of Kant, it is worth pointing out, at least briefly, that Habermas’ and Rawls’ use of “empirical” is rather different. Rawls takes “empirical” to mean the specific context of justice, namely, democratic societies whose members share a collective body of knowledge and face certain collective practical problems.13 As we saw in Chapter 1, Rawls defends the Kantian criteria constructively, that is, by demonstrating its ability to systematise the range of extant considered judgments (moral and non-moral) of members of democratic societies. After clarifying the “criteria” of Kant’s moral conception, we saw Rawls attempt to indicate how these criteria actually inform the empirical judgments of democratic societies. Habermas is thus correct in maintaining that Rawls does not actually justify the Kantian criteria in any universal sense.

In contrast, Habermas will take “empirical” to describe any type of action or social interaction whatsoever. Habermas believes that a pragmatic analysis of the rules of social interaction can indeed justify a moral principle of argumentation which applies necessarily and universally to all persons who engage in consensually oriented, that is, communicative action. It is because reason begins with and is itself expressed as social interaction – communicative action – that Kant cannot sustain the rigorous distinction between the noumenal and rational, on the one hand, and the phenomenal and empirical, on the other. Moreover, Habermas believes that Rawls’ own restriction of “empirical” to the context of democratic societies renders the constructivist justification unacceptable insofar as it limits its claims solely to democratic societies and provides no account of the moral basis of social interaction in societies other than democratic.

Three arguments can be found in Habermas’ early work against Kant’s separation of reason and empirical interest.14 First (2.1.1), Kant is unable to explain without

13 In Chapter 1.1, I pointed out that Rawls thinks that his “Kantian interpretation” recasts and reformulates the moral force of Kant’s conception “within the scope of an empirical theory”. Rawls, Theory, 227 rev. Note: this citation is unique to the revised edition. 14 Given that my thesis concerns the possibility of determining the content of Kant’s moral conception as it concerns political decision, I will not deal here with Habermas’ occasional comments on Kant’s theoretical philosophy (see Habermas, Knowledge and Human Interests, 7-24, 31, 34-37, 39-42; and

72 ambiguity how political decisions can also be moral because he cannot maintain the rigorous separation between res publica noumenon (a rightful condition determined by the moral causality of pure reason alone) and res publica phaenomenon (a rightful condition determined by empirical, natural causality).15 Habermas will propose, instead, that the moral determination of the will and of the content of the rightful condition is inseparable from the empirical needs and interests of participants in social interaction and thus rests on the notion of “generalisable interests”.

Second (2.1.2), Habermas argues that Kant is unable to explain without contradiction how a purely rational will can realise its free causality in moral action. On the one hand, rational causality must be able to affect the senses in order to become practical. So Kant affirms that reason produces a “pure interest” in the empirical faculty of desire, which determines the will to action. On the other hand, the status of the action determined by the faculty of desire’s “pure interest” is ambiguous, being neither empirically determined nor purely rational.16 Habermas proposes instead that interest is the principle of the exercise of reason and that the nature of this interest can be determined by the immanent analysis of the different forms of reason’s exercise, that is, forms of social interaction.

Third (2.1.3), in the Critique of Practical Reason, Kant himself affirms that interest is the principle by means of which the faculties (both theoretical and practical) can actually be exercised.17 Moreover, he argues that the practical interest in lawful action has primacy over the theoretical interest in the lawful cognition of the object. Habermas does not think that Kant adequately explains the sense in which the theoretical interest

Jürgen Habermas, Theory and Practice, trans. John Viertel (Boston: Beacon Press, 1973), 142-170). I will focus only on the texts which are relevant to Habermas’ interpretation of Kant’s practical philosophy. These texts include: “Publicity as the Bridging Principle between Politics and Morality (Kant)” in Habermas, The Structural Transformation of the Public Sphere, 102-117; “Labor and Interaction: Remarks on Hegel’s Jena Philosophy of Mind”, in Habermas, Theory and Practice, 149-152; “Critique as the Unity of Knowledge and Interest”, in Habermas, Knowledge and Human Interests, 189; “Reason and Interest: Retrospect on Kant and Fichte”, in Habermas, Knowledge and Human Interests, 191-213; Jürgen Habermas, Legitimation Crisis, trans. Thomas McCarthy (London: Heinemann Educational Books, 1976), 89; “Universal Pragmatics versus Transcendental Hermeneutics” in Habermas, Communication and the Evolution of Society, 21-25; “Morality and Ethical Life: Does Hegel’s Critique of Kant Apply to Discourse Ethics?” in Habermas, Moral Consciousness and Communicative Action, 195-215; and the diverse comments on Kant which appear throughout Moral Consciousness and Communicative Action. 15 Habermas, The Structural Transformation of the Public Sphere, 102-117. 16 Habermas, Knowledge and Human Interests, 191-213. 17 Kant, “Critique of Practical Reason”, 5: 119-121.

73 is subordinate to the practical interest. Instead, Habermas proposes that theoretical truth claims and practical claims as regards the rightness of action be understood pragmatically within a theory of social interaction or action-coordination.

These three arguments are worth pursuing in order to identify the central insight which Habermas discovers in Kant – namely, that practical reason grounds the claims to legitimacy on which forms of social interaction depend – and the reasons why Habermas cannot accept Kant’s theory of moral action as it is. The move to the analysis of structures and rules of interaction is central to Habermas’ own definition of the aforementioned moral principle of argumentation, principle (U), and its associated principle (D), which is to regulate the discursive redemption of contested truth and rightness claims (see 2.2).

2.1.1 Kant’s publicity principle: “generalisable interests”

In The Structural Transformation of the Public Sphere, Habermas argues that Kant cannot explain how political decisions can also be moral because he cannot maintain the rigorous separation between moral, rational causality and empirical, natural causality.18 This failure indicates something about reason: the exercise of reason is inseparable from the empirical needs and interests of reasoners. Habermas suggests that the publicity principle thus concerns the determination of the “generalisable interest”, and that this insight explains the ambiguous role which the publicity principle plays in Kant’s philosophy of right and history, namely, as both pure rational ideal and mere ideological cover for the pursuit of empirical interests. In his work after The Structural Transformation of the Public Sphere, Habermas will set himself the task of justifying and determining the principle for the determination of the generalisable interest via an analysis of rules of social interaction.

18 Habermas, The Structural Transformation of the Public Sphere, 102-117.

74 According to Habermas’ analysis, Kant ascribes two primary functions – sociological and methodological – to the public use of practical reason.19 In its first role, it serves as an empirical condition for the actualisation of the free use of reason. To progress in the use of practical reason, we need learn how to communicate our arguments to others and have the former corroborated or criticised by the latter. Without the freedom to use reason in communication with others, we cannot orient our thinking.20 The capacity to freely choose those laws which are to apply to one’s will is thus mediated by a public sphere in which the free use of reason is externally possible.21 Thus, the actualisation of freedom indeed depends, in part, on the existence of concrete social opportunities to express one’s reason (what Kant calls “external freedom”).22 Kant supports the idea of a “public sphere”, concludes Habermas, by which he means a domain of our social life, open in principle to all citizens, in which such citizens deal with matters of general (or public) interest without being subject to coercion, formulating what can be called a distinctly “public opinion”.23

In its second and methodological role, publicity serves as a principle which assures the accuracy of the use of practical reason in politics insofar as it promises to guarantee the convergence of the form of politics with the form of morality.24 Kant writes, “The

19 For a similar version of the two primary roles which Habermas ascribes to Kant’s publicity condition, see Jean-Marc Ferry, “Rationalisme occidental et démocratie moderne : Réflexion sur le concept philosophique de la Publicité”, Raison Présente 77 (1986): 33-46. 20 Immanuel Kant, “An Answer to the Question: What is Enlightenment?” in Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 11-22 at 8:35-42. 21 “For this enlightenment, however, nothing is required but freedom…. freedom to make public use of one’s reason in all matters… The public use of one’s reason must always be free, and it alone can bring about enlightenment among human beings”. Kant, “An Answer to the Question: What is Enlightenment?” 8:36-37. 22 “We do admittedly say that, whereas a higher authority may deprive us of freedom of speech or of writing, it cannot deprive us of freedom of thought. But how much and how accurately would we think if we did not think, so to speak, in community with others to whom we communicate our thoughts and who communicate their thoughts to us! We may therefore conclude that the same external constraint which deprives people of the freedom to communicate their thoughts in public also removes their freedom of thought…” Immanuel Kant, “What is Orientation in Thinking”, in Kant's Political Writings, trans. H.B. Nisbet (Cambridge, UK: Cambridge University Press, 1970), 237-249 at 247. Kant also writes, “It is difficult for any single individual to extricate himself from the minority that has become almost nature to him… But that a public should enlighten itself is more possible; indeed this is almost inevitable, if only it is left its freedom”. Kant, “An Answer to the Question: What is Enlightenment?” 8:36. 23 Jürgen Habermas, “The Public Sphere”, trans. Shierry Weber Nicholsen, in Jürgen Habermas on Society and Politics: A Reader, ed. Steven Seidman (Boston, MA: Beacon Press, 1989), 231-236 at 231 and 236. 24 Reason has to be “authorised to speak out publicly. For without a faculty of this kind, the truth would not come to light…” Immanuel Kant, The Conflict of the Faculties, trans. Mary Gregor (Nebraska: University of Nebraska Press, 1992), 29. The spirit of the philosophers thus “has the public presentation of truth as its function”. Kant, The Conflict of the Faculties, 57.

75 touchstone of whatever can be decided upon as law for a people lies in the question: whether a people could impose such a law upon itself”.25 Like Rawls, Habermas notes that Kant’s publicity principle thus promises to unite politics with the moral idea of autonomy insofar as political principles are to be constrained by the requirement that they both be acceptable to all when publicised and be indeed public (see Chapter 1.1.1).26

The publicity principle thus constitutes the test of the moral validity of politics. According to Habermas, Kant had already ascribed to public consensus the function of a pragmatic truth test of the objective validity of theoretical judgment when he wrote, in the Critique of Pure Reason, that: the touchstone whereby we decide whether our holding a thing to be true is conviction or mere persuasion is therefore external, namely, the possibility of communicating it, and of finding it to be valid for all human reason.27

Although of merely pragmatic value in the theoretical realm (since the truth of a theoretical judgment ultimately rests on the agreement of judgment with the object in the appearance),28 Habermas claims that this test of consensus in the public sphere obtains a constitutive value in the philosophy of right. Politics, writes Kant, is objectively valid only insofar as its maxims are capable of publicity and are, in fact, public.29

25 Kant, “An Answer to the Question: What is Enlightenment?” 8:39. In relation to publicity, Kant also writes, “The transcendental formula of public right: All actions relating to the rights of others are wrong if their maxim is incompatible with publicity. This principle is not to be regarded as ethical only (belonging to the doctrine of virtue) but also as juridical (bearing upon the right of human beings)”. Kant, “Toward Perpetual Peace”, 8:381. And elsewhere, “What a people cannot decree for itself, a legislator also cannot decree for a people”. Kant, “On the Common Saying”, 8:305. 26 Habermas, The Structural Transformation of the Public Sphere, 102. Kant writes, “True politics can therefore not take a step without having already paid homage to morals”. Kant, “Toward Perpetual Peace”, 8:380. 27 Immanuel Kant, Critique of Pure Reason, trans. and ed. Paul Guyer and Allen Wood (Cambridge: Cambridge University Press, 2000), A820-A821/B848-B849. 28 Habermas realises, of course, that on Kant’s account of theoretical reason, this communicative truth test has merely pragmatic value, for truth itself rests ultimately upon the agreement of judgment with the object in the appearance and not on the agreement of judgment with the judgments of other persons. In this sense, the agreement of all understandings can be taken as a pragmatic indicator of the validity of the judgment in question only if one also presumes that the ground of such agreement lies in the object itself (for ultimately, judgment must also agree with their objects). See Kant, “On having an opinion, knowing and believing” in Critique of Pure Reason, A820-A831/B848-B859. 29 Of course, a sovereign cannot be said to satisfy the principle of publicity just because that sovereign makes public its laws: publicising laws which do not themselves satisfy the principle of publicity is not itself sufficient. “It cannot be concluded, conversely, that all maxims which can be made public are therefore also just, because the person who has decisive supremacy has no need to conceal his maxims”. Kant, “Toward Perpetual Peace, 5:385.

Although, in Kant, a political condition (a condition of right) is indeed distinct from a moral condition, the moral law remains the formal basis of political right. On the one hand, morality and right are distinct by virtue of the object to which they apply. Whereas the moral law commands the will and requires that actions be performed for the sake of duty alone, right commands action alone, requiring only that actions conform to the form of law. Kant’s objective principle of right thus states that “any action is right if it can coexist with everyone’s freedom in accordance with a universal law”, “freedom” here referring to external and not internal freedom, that is, to actions not intentions.30 The moral law cannot force individuals into being free: enforcing morality is a contradiction in terms, since morality is to be freely chosen. However, right authorises the use of coercion insofar as it demands that the unlawful hindrance of external freedom be itself hindered. Right is thus represented as the possibility of a fully reciprocal (lawful) use of coercion which is thereby consistent with everyone’s external freedom in accordance with universal law.

On the other hand, despite their different objects, the law is the rational form for action. Although the objective principle of right does not command intentions, it does demand that action at least conform to the form of universal law: the actions of one actor should not have harmful effects on the capacity of other actors to pursue their own external freedom. Hence the idea that external freedom (action) is right if it can at least coexist with the external freedom (action) of others in accordance with a universal law.31

As Habermas remarks, the publicity principle is intended to guarantee the convergence of the content of right (positive rights and laws) with morality insofar as publicity requires of right that it conform to the moral autonomy of individuals. Rawls’ and Habermas’ interpretations of Kant here coincide. The force of Kant’s view is that public institutions are to be regulated by principles which are acceptable to all when publicised and which are, indeed, public (see Chapter 1.1.1).32 The publicity principle states that right conforms to morality in the case that it institutionalises the general (public) interest

30 Kant, “The Metaphysics of Morals”, 6:231. 31 Ibid., 6:230-231. 32 Ibid., 6:311. “Public Right is the sum total of those laws which require to be made universally public in order to produce a state of right”.

77 which, as morality requires, is the reciprocal limitation of external freedom of action by law. A moral politics thus ascribes legitimating force to rational, public deliberation and not to the causality of contingent, empirical inclinations. Insofar as Kant defends the moral politician who attempts to formulate principles which coexist with rational deliberation against the political moralist for whom politics concerns the expert exploitation of technical knowledge,33 Habermas views Kant (and Rawls) as an ally opposed to the threat of the scientisation of politics.34

However, when Kant’s publicity principle is actualised in history, Habermas argues that it fails on its own terms to achieve its promise of emancipating the whole of society from manifestations of unilateral will. As Kant’s writings on right and history reveal, the historical implementation of the principle by specific publics actually functions to sanction the pursuit of empirical and unilateral (not public and generalisable) interests, thus failing to unite politics with morality.35 When it comes to the determination of the concrete laws for the regulation of action, Kant draws a distinction between co- beneficiary of right (a mere member of a civil state) and co-legislator of right (a citizen of a civil state), stipulating that only the latter (citizens) are to have the right to vote on legislation.36 Co-beneficiaries of a civil state are indeed to comply with and enjoy the protection of civil laws insofar as each is free as a human being37 and equal with all others as a subject of the same laws.38 However, only those persons who are not only free and equal but also independent, as citizens, are to co-legislate.39 Kant writes: As for legislation itself, it is not the case that all who are free and equal under already existing public laws are to be held equal with regard to the right to give these laws.40

33 “Right must never be accommodated to politics, writes Kant, but politics must always be accommodated to right”. Immanuel Kant, “On a Supposed Right to Lie from Philanthropy”, in Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 611-615 at 8: 429. 34 Habermas, The Theory of Communicative Action (Volume 1), 290; and Habermas, Communication and the Evolution of Society, 205. 35 Habermas refers primarily to the following texts by Kant: “Idea for a Universal History with a Cosmopolitan Purpose”, “On the Common Saying”, “Toward Perpetual Peace”, and “The Metaphysics of Morals”. 36 Kant, “On the Common Saying”, 8:294. 37 Ibid., 8: 290-291. 38 Ibid., 8:291-294. 39 Ibid., 8: 294-296. 40 Ibid., 8: 294.

78 The qualifications required of a citizen, Kant continues, is that he be adult, male and owner of the property which supports him (be this an Estate, or a skill, trade, fine art or science).41

Kant’s reasoning appears to go as follows: first, that according to the principle of publicity, every co-beneficiary of a state with private stakes and interests has to will that state in unison; second, that the legislation of right must be acceptable to all co- beneficiaries with private stakes and interests; third, that property owners have distinct and competing private interests whereas the interest of wage labourers is effectively subsumed by the interest of their employers; and fourth, that all interests are thus represented when the co-legislating public is comprised of property owners alone. The restriction of the “public sphere” to the historical category of property owners with private stakes and interests need not, however, violate the principle of publicity if it is also assumed that equal chances actually exist among all co-beneficiaries for the acquisition of property (and thus, of private interests). Kant thus writes that: [i]t should be left exclusively to the ability, industry and good fortune of each member of the commonwealth [free competition] to enable each to acquire a part and all to acquire the whole.42

So, on the one hand, the bourgeois property-owning public intended to dissolve the unilateral authority of the ruling Estates by recourse to the reciprocity invoked by the principle of publicity. On the other hand, the assumption of political power by these very same private individuals to first establish the juridical condition on the basis of their private interest is equivalent to an act of unilateral domination. The principle of publicity thus functions both as a rational idea with emancipatory potential and as a masquerade for merely empirical (not generalisable) interests. Habermas will argue that first Hegel and then Marx show that the identification of “public interest” with the interest of owners of private property (under which the interest of the mere wage-earner is subsumed) would prevent its convergence with that of the individual in general.43

41 Ibid., 8: 294-296. 42 Ibid., 8:296. 43 See “On the Dialectic of the Public Sphere (Hegel and Marx)”, in Habermas, The Structural Transformation of the Public Sphere, 117-129.

79 Now, one could defend Kant from Habermas, at this point, by insisting that it is not Kant’s publicity principle which is at fault but rather his acceptance of the distinction between active (co-legislative) and passive (co-beneficiary) citizens. The publicity principle demands that access to the active, co-legislatory sphere be, in principle, open to all, hence Kant’s demand for genuinely free competition. However, Habermas believes that Kant’s demand for genuinely free competition itself expresses the particular interest of those who deploy it, in this case the bourgeoisie, and that once it becomes clear that the pursuit of the rational idea of publicity is inseparable from empirical interests in social interaction, a different type of procedural practice for the determination of truly generalisable interests is necessary.

The ambiguous function of the principle of publicity – as the principle bridging morality and politics for the sake of the purely rational end of humanity and as mere empirical means to pathological subjective ends – is revealed, Habermas suggests, in Kant’s account of reason in political history.44 On the one hand, Kant appears to deny any role to moral action in his account of political progress, instead ascribing progress to the “cunning of nature”. Natural necessity – the “pathologically enforced” conduct of empirically determined subjects – thereby contributes to political progress insofar as law (and its principle of publicity) strategically serves the empirical ends of all. Kant’s state of justice thereby emerges via the technical administration of merely pathological conduct or, as Habermas puts it, “technical expertise in a utilitarian doctrine of prudence”.45 Political maxims, writes Kant “must conform with the universal end of the public, happiness”.46 The empirical self-interest of the property-owning citizen thereby contributes to a certain type of political progress insofar as it increases the area of social action externally regulated by laws.47

On a second interpretation, however, the “cunning of nature” cannot achieve political progress without the rational will. Contradicting his statement that the universal public end is empirical happiness, Kant also writes that political maxims should not be derived from the welfare or happiness that a state expects from obedience to them “but rather

44 Habermas, The Structural Transformation of the Public Sphere, 115. 45 Habermas, Theory and Practice, 42. 46 Kant, “Toward Perpetual Peace”, 8:386. Continuing on, Kant writes that the proper task of politics is “to make the public satisfied with its condition” (8:386). 47 Habermas, The Structural Transformation of the Public Sphere, 115.

80 from the pure concept of the duty of right… regardless of what the natural consequences may be”.48 A distinctly moral will is required for the actualisation of the juridical condition in order for that condition to maintain itself against the pathologically enforced action which threatens to undermine it. The publicity principle in this sense functions not as a means to the pursuit of empirical ends but as an objectively rational principle.

Habermas proposes that the ambiguous function of the publicity principle – as rational idea and mere ideology – can be resolved when it is assumed that the pursuit of the rational idea is inseparable from empirical interests in social interaction. The rational idea is no longer defined by way of opposition to interest per se, but rather in terms of the rationalization of interests themselves.49 The unification requires the redefinition of the object of the publicity principle, namely, the impartial regulation of the interests of partners in social interaction, or, in other words, the determination of “generalisable interests”. The publicity principle, now understood as the impartial regulation of interests, brings together the conflicting ideas expressed by Kant’s philosophy of history, that is, the idea that moral politics is to be affirmed on the basis of duty alone (and not on the basis of interest) and the idea that the universal end of the public is empirical “happiness”.50

So as to defend the practical intent of the publicity principle – namely, the dissolution of forms of unilateral authority by recourse to the public use of reason – Habermas proposes to account for the relationship between morality and interest. Habermas intends, more precisely, to uncover the nature of reason’s interest in social interaction which is free from domination, and to determine, by means of a method which he will

48 Kant, “Toward Perpetual Peace”, 8: 379. 49 Thomas McCarthy, The Critical Theory of Jürgen Habermas (Cambridge, MA: The MIT Press, 1978), 328. 50 Thomas McCarthy writes that “The consequences of this exclusion [of material desires and inclinations] become evident in the “Dialectic” of the 2nd Critique. Having divorced virtue from happiness, Kant must place the realization of “the highest good” – the union of virtue and happiness – beyond this world. Their union, a necessary object of the will, requires the postulates of the existence of God and the immortality of the soul. For Habermas this split does not arise since the content of the consensus sought for in discourse directly concerns happiness”. McCarthy, The Critical Theory of Jürgen Habermas, 327. See also Gordon Finlayson, “Does Hegel’s Critique of Kant’s Moral Theory Apply to Discourse Ethics?” in Habermas: A Critical Reader, ed. Peter Dews (Oxford, UK: Blackwell Publishers Ltd, 1999), 29-52 at 30.

81 call “rational reconstruction”, a procedural principle for the determination of truly “generalisable interests”.51

2.1.2 The “pure interest”: the principle for reason’s exercise in action

In Knowledge and Human Interests (first published in 1968), Habermas argues that when Kant considers the question as to how pure reason can be practical, producing moral action with its effects in the empirically determined world, Kant cannot preserve the moral will “from the admixtures of experience”.52 This failure indicates something about the structure of reason itself in its connection to its exercise, namely, that interest is the principle of the exercise of reason and that the nature of its interests can be determined by the immanent analysis of the various forms of reason as exercised in social interaction.

On the one hand, Kant insists that reason itself would overstep its proper bounds if it attempted to explain how pure reason can be exercised.53 The objective reality of the idea of a free will cannot be theoretically explained in accordance with the empirical laws of nature, because, if it were to be so accounted for, it would be pre-determined and not free. Moreover, an empirical account of freedom of this type would effectively invalidate the idea of the moral law itself, which requires that its law be freely willed. Persons act on the basis of reason when they are to abstract from all “pathological” interests and natural causes so as to will subjective maxims of action in virtue of their lawful form alone.

On the other hand, Kant affirms that for reason to be actually practical – a cause determining the will to action – then it must somehow be able to affect the senses. Non-

51 As Thomas McCarthy writes, “Kant once wrote that the problem of a just political order could be solved for a race of devils, but only because a providential nature brought about the juridical condition that morality demanded; As Habermas does not rely on a providential nature, political justice can only be achieved through the discursive unification of empirical wills”. See McCarthy, “Practical Discourse: On the Relation of Morality to Politics”, 182. 52 Habermas, Knowledge and Human Interests, 200. Habermas is referring in particular to the latter section of Kant’s “Groundwork”, 4:458-463. 53 Kant, “Groundwork”, 4:458-459, see also 4:461-462.

82 empirical, rational causality must be capable of effecting practical action.54 The concept of a “pure practical interest of reason”, one attested to by moral feeling, pure practical pleasure, or respect55, is introduced to fulfil the systematic function of guaranteeing the causal link between pure reason and the empirical world of interacting objects. As Habermas explains, interest, in Kant, is the pleasure which we connect with the idea of the existence of an object or action.56 It expresses a relation between the object or action of interest and our faculty of desire. The distinction between a merely empirical and a pure interest thus concerns the origin of the interest. Merely pathological and sensible interest in what is pleasant or useful originates in empirical need stimulated by the inclinations of sensibility. The pure, practical, rational interest originates in the moral law: the moral law itself awakens or produces a need, and thus, an interest in the faculty of desire which is stimulated not by inclination but rather determined by principles of reason alone.57

While the nature of the production of this pure interest cannot be explained theoretically, it is nonetheless practically necessary for pure reason to causally produce such interest. Reason, says Kant, must have: the capacity to induce a feeling of pleasure or delight in the fulfilment of duty, and thus there is required a causality of reason to determine sensibility in conformity with its principles.58

Human beings must be empirically capable of producing moral action which means that they must actually want or desire to act on the moral law. Indeed, the relation between reason and sensibility (impossible to explain theoretically) is attested to by moral

54 Ibid., 4:460-463. 55 In “Critique of Practical Reason”, Kant writes that in moral feeling there is “an altogether different interest… an interest in obedience to the law, and this we call a moral interest”. Kant, “Critique of Practical Reason”, 5:80-81. In the “Groundwork”, Kant states that “it is not because the law interests us that it has validity for us (for that is heteronomy and dependence of practical reason upon sensibility, namely, upon a feeling lying at its basis, in which case it could never be morally lawgiving); instead, the law interests because it is valid for us as human beings, since it arose from our will as intelligence and so from our proper self…” Kant, “Groundwork”, 4:460-461. See also Kant, “Critique of Practical Reason”, 5:73, 5:76-79; “Groundwork”, 4:400; “The Metaphysics of Morals”, 6:399-403; and Immanuel Kant, Critique of the Power of Judgment, trans. Paul Guyer and Eric Matthews, ed. Paul Guyer (Cambridge, UK: Cambridge University Press, 2000), 5:209-10, 222, 257-60. 56 Kant, Critique of the Power of Judgment, 5:205. 57 Kant, “Critique of Practical Reason”, 5:73. 58 Kant, “Groundwork”, 4: 460.

83 feeling. “In reason”, concludes Habermas, “there is an inherent drive to realise reason”.59

However, this “inherent drive” – the systematic function of the pure interest – is difficult to account for in Kant’s “phenomenal-noumenal” vocabulary for the pure interest is neither empirical nor purely rational. On the one hand, it defines a fact on which we can support our certainty of the practical reality of pure reason. Moral feeling attests to the capacity for the moral law to be practically effective, that is, to actually determine the will to moral action. On the other hand, this fact is not itself empirical: it must claim the status, says Habermas, of a transcendental experience. And yet, within the confines of the Kantian system, the very idea of a non-empirical genesis of reason which is not, for all that, severed from experience is absurd. Indeed, it designates an experience (moral feeling) as incomprehensible yet necessary.60

Habermas proposes instead that we begin with the premise that reason’s exercise and interests are manifest in forms of action and social interaction. He then suggests that the pragmatic analysis of the actions of actors (the analysis of the practical consequences of actions in relation to action-coordination) might permit the construction of a typology of actions and their associated interests. This analysis would allow one to identify, more clearly, the pragmatic function of the “moral interest”, namely, the determination of a certain form of social interaction founded on the “generalised interest”.

In Chapter 4, I will contrast Levinas’ rather un-Kantian interpretation of Kant’s account of “moral feeling” with Habermas’ interpretation of the same concept. For Levinas, the incomprehensibility of moral feeling is morally relevant. At once rational and empirical (and thus incomprehensible), moral feeling attests to an experience which cannot be reduced to one’s own comprehension. Where Levinas emphasises the relevance of the incomprehensibility of Kant’s moral interest, Habermas sees a contradiction to be avoided. Habermas believes that the problem occurs because Kant’s rigorous distinction

59 Habermas, Knowledge and Human Interests, 201. 60 Habermas writes, “The cause of freedom is not empirical, but it is also not only intelligible; we can designate it as a fact but cannot comprehend it. The title pure interest refers us to a basis of reason that is the exclusive guarantee of the conditions for realising reason, but that cannot itself be reduced to principles of reason… unlike the limit of applied theoretical reason, where reason surpasses experience, here the experience of moral feeling surpasses reason”. Habermas, Knowledge and Human Interests, 202.

84 between empirical interest and rational moral decision cannot be maintained. I have just explained that Habermas thinks he can resolve the problem by shifting the analysis from subjective, private reason to intersubjective structures of reason, which are deployed by participants who engage in communicative action. In so doing, he claims to analyse a practical reason which is already empirical, thereby overcoming the Kantian opposition between the empirical and the rational. In Chapter 4, I will demonstrate that whereas Habermas and Rawls emphasise the possibility of determining the content of Kant’s notion of autonomy and impartiality, Levinas emphasises the non-equivalence of ethics and impartiality. For Levinas, moral interest requires a pragmatics which is quite different to the one that Habermas will describe. The moral task is not so much the determination of the interests which I share with my partners in interaction, but rather the suspension of self-interest.

2.1.3 The interest of reason’s exercise: action- coordination

As Habermas notes in Knowledge and Human Interests, Kant himself indicates in the “Critique of Practical Reason” that the relation between reason and interest is constitutive for practice: not only is interest the principle by means of which the faculties (both theoretical and practical) are exercised, the practical interest in lawful action indeed grounds the theoretical interest in the lawful cognition of the object.61 “All interest”, writes Kant, “is ultimately practical and even that of speculative reason is only conditional and is complete in practical use alone”.62 However, according to Habermas, Kant fails to explain the precise sense in which the theoretical interest is subordinate to the practical interest. In contrast, Habermas proposes the following: theoretical truth claims and practical claims regarding the rightness of action can both be understood in terms of their pragmatic function within a theory of action- coordination.63

61 Kant, “Critique of Practical Reason”, 5:119-121. 62 Ibid., 5:121. 63 “The practical interest of reason could assume the role of a knowledge-constitutive interest in the narrower sense only if Kant really were to achieve the unity of theoretical and practical reason. For Kant the speculative interest of reason only aims tautologically at the exercise of the theoretical faculty for the purpose of knowledge. Only if this interest were taken seriously as a pure practical interest would theoretical reason necessarily lose its role as one that is independent of the interest of reason”. Habermas, Knowledge and Human Interests, 205.

The primacy of the practical interest describes, for Kant, the subordination of reason’s theoretical interest in the completeness of cognition in accordance with a priori principles, to reason’s practical interest in the determination of the will in accordance with necessity or law.64 The subordination is warranted if morality is to be possible at all. On the one hand, reason has, from a theoretical perspective, “the silent merit of guarding against errors”:65 it draws the boundaries of cognition and restricts legitimate knowledge claims to those judgments which unite the understanding’s categories with the intuitions of sensibility in a representation gathered by the “I think”. Moral “freedom” is problematic for theoretical reason since its existence can be neither corroborated nor denied by experience: if it were to be corroborated by laws of nature which could be said to pre-determine it, it would not be freedom as such. On the other hand, from a practical perspective, reason’s practical interest in the lawful determination of the will entitles the assumption of the existence of “freedom”. The object which is theoretically “problematic” belongs inseparably to the practical interest. The will cannot determine itself to action on the basis of law unless it assume as given the existence of the transcendental freedom which is “problematic” for the theoretical interest. The consciousness of the existence and objective validity of practical freedom is thus a “fact of reason” which theoretical reason must accept.66

However, according to Habermas, the requirement that reason be entitled for practical reasons to assume the existence of objects which are problematic for speculative reason does not explain Kant’s more global aim of uniting the practical and theoretical exercise of reason in one reason.67 “All interest”, writes Kant, “is ultimately practical and even that of speculative reason is only conditional and is complete in practical use alone”.68 First, in the case of the “pure interest” of practical reason, moral feeling was introduced into the will so as to determine the link between the pure and the determined will (see

64 Kant, “Critique of Practical Reason”, 5:119-121. 65 Kant, Critique of Pure Reason, A795/B823. 66 Kant, “Critique of Practical Reason”, 5:31. At the end of section 2 of this chapter (2.2), I will indicate the way in which Habermas intends to “revitalise” Kant’s “fact of reason” in terms of the idea of a universal and unconstrained consensus, presupposed and always-already at work in everyday communication. Jürgen Habermas, “A Postscript to Knowledge and Human Interests”, Philosophy of the Social Sciences 3, no. 2 (1973): 157-189 at 185. 67 Habermas, Knowledge and Human Interests, 205. 68 Kant, “Critique of Practical Reason”, 5:121.

86 preceding section). Habermas suggests that if the speculative interest were truly subordinate to the practical interest, that is, if determining the will to action in accordance with law had something to do with the theoretical exercise of reason too, an identifiable experience of pleasure would inhere likewise in reason’s theoretical exercise. This is not the case in Kant’s system.69 Second, it is difficult to see how the theoretical can be complete in practical use alone when the principles of pure practical reason remain “problematic” for theoretical reason. We have already indicated that, for Kant, the will is entitled to assume the existence of a “freedom” which remains problematic for speculative reason. Habermas concludes that an account of the unity of theoretical and practical reason must begin with the problem of the pragmatic role which truth claims and rightness claims play for action-coordination, indicating the internal relation of each to practices of social interaction more generally.70 Habermas thus attempts to systematically examine the constitutive relation of both the theoretical and practical exercise of reason to their action-coordinating function in interaction with others.71

In Knowledge and Human Interests, Habermas analyses the role that theoretical truth claims and practical rightness claims play in coordinating action.72 Analysing the range of empirical concrete actions, he proposes a typology of action-types, of interests on the basis of which such action is pursued, and of knowledge-types on which the effective pursuit of such action relies. Purposive action (with its two moments, non-social instrumental action (technically appropriate choice) and social strategic action (rational choice))73 is pursued on the basis of a “technical interest” in controlling objectified processes in nature.74 Goal-directed, it requires knowledge of “instrumentally manipulable bodies” or, in other words, predictive and technically exploitable knowledge.75 Predictive knowledge – technical rules, conditional predictions or preference rules – are then exploited so as to achieve goals via the most effective means. Communicative action (action oriented to reaching an understanding and consensual

69 Habermas, Knowledge and Human Interests, 202-203. 70 Ibid., 205. 71 Ibid., 314; and Habermas, Theory and Practice, 3 and 7-8. 72 Habermas, Knowledge and Human Interests, 301-317. 73 McCarthy, The Critical Theory of Jürgen Habermas, 23-26. 74 Habermas, Knowledge and Human Interests, 191-198, 308-317. 75 Habermas, “A Postscript to Knowledge and Human Interests”, 174.

87 action) is pursued on the basis of a “practical interest” in consensually grounding action in mutual, that is, shared understanding.76 It is action based on a common knowledge base which includes mutually shared values and reciprocal expectations, that is, validity claims (be these truth or rightness claims) which are intersubjectively recognised.77 Interaction free from domination is based on the “emancipatory interest” in action which “transcend[s] the compulsions of action”.78 In this sense, it is a derivative form of communicative action insofar as the interest arises as a result of distortions in the consensual grounding of action.79 Through self-reflection on existing practices, one can free oneself, claims Habermas, from “the pressure and seduction of particular interests”.80

At this stage, however, Habermas’ account of emancipatory practice as self-reflection does not easily link up with the task implied by The Structural Transformation of the Public Sphere’s analysis of Kant’s publicity principle, namely, the task of justifying a principle for the determination of “generalised interests” in social interaction. As Habermas himself remarks in the “Postscript” to Knowledge and Human Interests, the task could not be dealt with within the framework of the latter, insofar as it remained a “philosophy of the subject”, determining in Kantian manner the essentially “transcendental” constitution of the subject itself as a subject with knowledge- constitutive interests (technical, practical and emancipatory) via an analysis of the constitutive conditions of human action. By remaining within a “philosophy of consciousness”, Habermas is unable to indicate the link between structures of intersubjective interaction free from domination and emancipation, insofar as emancipation in interaction now depends on others too. In order to correct this problem, he explicitly shifts his focus from the subject of action and towards structures of communication, that is, from “a philosophy of consciousness” to “a philosophy of intersubjective interaction”. Analysing, from the early 1970’s onwards, structures of communication rather than consciousness, Habermas employs the method of “rational

76 Habermas, Knowledge and Human Interests, 191-198, 308-317. 77 Habermas, “A Postscript to Knowledge and Human Interests”, 174. 78 Habermas, Theory and Practice, 19, see also 7-10; and Habermas, Knowledge and Human Interests, 191-198, and 308-317. 79 Habermas, “A Postscript to Knowledge and Human Interests”, 176; and Habermas, Theory and Practice, 22. 80 Habermas, Knowledge and Human Interests, 311.

88 reconstruction”, that is, the rational reconstruction of universal and unavoidable structures of communication according to which communicating subjects intersubjectively coordinate their action by reference to shared theoretical truth claims and practical rightness claims.81

Recalling Habermas’ demonstration of the double function of rational-critical debate regulated by Kant’s publicity principle – as rational idea and mere ideology – Habermas now wishes to determine criteria by virtue of which norms of action for unconstrained and undistorted communicative action can be validated in rational argumentation. His basic idea, simply stated, is that the rational requirements of a society free from all unnecessary domination are already anticipated in every act of communication and may be defined by a pragmatic analysis of the presuppositions of communication.82 These requirements can then be said to be those in relation to which statements and principles are justified.

2.2 Reformulating the CI procedure: determining the “generalised interest”

In Moral Consciousness and Communicative Action, Habermas reformulates Kant’s categorical imperative procedure in order to overcome what he sees as its major problem. The problem with the procedure, as an objective test of the universalisability of maxims, is that it entitles a solitary individual to validate for all others any maxim which he or she can will, without contradiction, to be a universal law. But if structures of interaction are to be free from domination, depending on uncoerced consensus with others, the test cannot be undertaken monologically: it requires that interacting partners themselves (or their advocatory representatives) validate the contested norm of action

81 Habermas had already indicated his concern with language well before what is now referred to as his “paradigm shift” of the early 1970’s. In 1967 he wrote that, “Today the problem of language has replaced the traditional problem of consciousness; the transcendental critique of language supersedes that of consciousness”. Habermas, “Zur Logik der Sozialwissenschaften”, Philosophische Rundschau 14, supplement no. 5 (1966-1967): 220, cited in Rick Roderick, Habermas and the Foundations of Critical Theory (New York: St. Martin’s Press, 1986), 73. And again in Knowledge and Human Interests, “What raises us out of nature is the only thing whose nature we can know: language. Through its structure, autonomy and responsibility are posited for us. Our first sentence expresses unequivocally the intention of universal and unconstrained consensus” (314). However, it remains true that the object of the analyses shifts from subjectivity to communication only after the publication of Knowledge and Human Interests. 82 Roderick, Habermas and the Foundations of Critical Theory, 74.

89 which coordinates their interactions, together determining the content of the “generalised interest”. Habermas thus reformulates the categorical imperative procedure by outlining procedural criteria for the uncoerced, intersubjective determination of the “generalised interest”. This reformulation takes the form of the identification and “rational reconstruction” of the pragmatic presuppositions of consensually-oriented communicative action. He lays out first a theory of communication in which meaning and validity are analysed in pragmatic terms, namely, in terms of action coordination; second, a “universal pragmatic” examination of the basis of intersubjective validity, namely, the principle of universalisation (U); and third, a procedural approach to moral justification, namely, the procedures described by the principle of discourse ethics (D).83

First, analysing the pragmatic function of structures of social interaction rather than of consciousness, Habermas now drops the reference to the subject and its knowledge- constitutive interests. Although he retains (more or less) the same action typology described in Knowledge and Human Interests, these types are now pragmatic ways of coordinating interaction. In general terms, social action can be either strategic or oriented towards mutual understanding (communicative).84 Whereas in strategic action an actor seeks to influence the interaction with another by the threat of sanctions or the prospect of gratification, in communicative action an actor seeks to rationally motivate another to participate in interaction, thereby depending on the reciprocal and mutual understanding of communicative acts.85 For Habermas, subjects are already situated in and socialised by a lifeworld background consensus – an implicit or explicit recognition of shared values – by means of which action is coordinated and, for the most part, unquestioned. In this sense, even strategic acts function by using the shared norms and values of communicative action to non-communicatively pursue one’s advantage.86 The

83 Here I follow Ciaran Cronin’s account of Habermas’ reappropriation of Kant’s account of justification. Ciaran Cronin, “Translator’s Introduction”, in Jürgen Habermas, Justification and Application: Remarks on Discourse Ethics, trans. by Ciaran Cronin (Cambridge, MA: The MIT Press, 1993), xi-xxxi at xiii- xviii. 84 Habermas does include non-social purposive action in his action typology. “Action oriented to success” consists of both non-social (instrumental) and social (strategic) action and is distinguished from “action oriented to reaching understanding” which is uniquely social (communicative action). Habermas, The Theory of Communicative Action (Volume 1), 285. However, here I am dealing uniquely with social action, since it is via the analysis of social interaction that Habermas proposes to reconstruct the principle of universalisation implied in such practice. 85 Habermas, Moral Consciousness and Communicative Action, 58. 86 Habermas, The Theory of Communicative Action (Volume 1), 288-294; and Habermas, The Theory of Communicative Action (Volume 2), 113-197.

90 acceptance of lifeworld truth and validity claims can, however, be uncritical or what Habermas calls “de facto”. Thus Habermas distinguishes between de facto and rational acceptance of validity claims. When disagreement arises over an aspect of the lifeworld, subjects shift from communicative action to either purely strategic action or rational discourse (argumentation oriented to consensus) so as to raise, assess and, if at all possible, redeem validity claims. Communication can succeed or fail on the basis of disagreement over certain basic dimensions, namely, the truth of constatives (in “theoretical discourse”), the rightness of regulatives or norms of action (in “practical discourse”), and the truthfulness or sincerity of representatives (in “therapeutical discourse”).87

Second, Habermas argues, by means of what he calls a “universal pragmatic analysis”, that a rule of argumentation – principle (U) or what he also calls “the moral principle”88 – is employed whenever participants attempt to resolve their disagreements consensually. Habermas derives principle (U) from the presuppositions which participants assume when pragmatically committed to a consensually oriented argumentative practice.89 First, participants in argumentation assume that they and the others know what it means to discuss whether or not a norm of action should be adopted. Given his theory of action, Habermas assumes, more specifically, that a social norm is a shared behavioural expectation whose general observance coordinates interaction by regulating the satisfaction of the particular interests of the parties involved in the light of a shared value, and has the further consequences and side-effects

87 Habermas, The Theory of Communicative Action (Volume 1), 22-42. In the case of claims to rightness or truth, the speaker can redeem the pragmatic agreement discursively by providing reasons; in the latter case of truthfulness, one can redeem one’s claim through consistent behaviour (Habermas, Moral Consciousness and Communicative Action, 59). In the case of truth claims, constatives give rise to obligations only insofar as the speaker and hearer both agree to base their actions on situational definitions which do not contradict the propositions they both accept as true at any given point. In the case of rightness claims, regulatives give rise to obligations insofar as parties agree to coordinate their behaviour accordingly. In the case of truthfulness claims, expressives/ representatives give rise to obligations insofar as speakers must ensure that their behaviour does not contradict their utterances. 88 Habermas, Moral Consciousness and Communicative Action, 93. 89 Here I follow Habermas’ account of discourse ethics in Moral Consciousness and Communicative Action and also William Rehg’s further elaboration of Habermas’ implied pragmatic premises. My reference to Rehg’s account is justified by Habermas’ later recommendation of Rehg’s version as representative of his own. See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. by William Rehg (Cambridge, MA: The MIT Press, 1996), 531, see also 109). See also William Rehg, “Discourse and the Moral Point of View: Deriving a Dialogical Principle of Universalisation”, in Jürgen Habermas (4 volumes), ed. David M. Rasmussen and James Swindal (London, UK: Sage Publications Ltd, 2002), Vol. 3, 137-157.

91 of contributing to the formation of a specific type of social order. Second, participants in argumentation assume that if they are to reach agreement on a norm through argument, they must convince each other that a shared behavioural expectation indeed selects interest-regulating values, which have value for all, and has a favourable effect on the coordinated satisfaction of interests. This means that whoever intends to justify a norm in discourse is committed to a discourse (a) that is open to all competent actors; (b) that provides its participants with symmetrical chances to introduce and problematise assertions, and to express their needs and desires; (c) that is subject to neither internal nor external coercion and (d) that requires that the utterances of participants by sincere or truthful.90 Third, participants in argumentation assume that the agreement for which they strive is to be supported by only those reasons which each affected person can accept as valid, that is, reasons which survive after each person has been free to question them. Thus, fourth, participants assume that their individual perception of shared interests is undistorted only if they can convince others, in terms the others consider appropriate, that the norm’s general observance indeed coordinates action according to an interest-regulating value having priority for all and has acceptable consequences for social order. From this, Habermas derives the pragmatic principle (U) (a rule of argumentation) which stipulates that every valid norm must be such that: All affected can accept the consequences and the side-effects its general observance can be anticipated to have for the satisfaction of everyone’s interests (and these consequences are preferred to those of known alternative possibilities for regulation).91

Principle (U) thus describes the elements of an impartial standpoint which participants presuppose when attempting to coordinate their interaction for the mutual satisfaction of their interests.

Habermas is then entitled to distinguish between merely de-facto agreement which coordinates action and valid agreement. A valid agreement refers to a context beyond its own, namely, a context which satisfies (U).92 As he did with Kant’s principle of publicity in The Structural Transformation of the Public Sphere, Habermas refers to (U)

90 Habermas, Warheit und Rechtfertigung: Philosophische Aufsätse (Frankfurt am Main: Suhrkamp, 1999), 48. 91 Habermas, Moral Consciousness and Communicative Action, 65, see also 93. 92 Ibid., 62-68.

92 as “a bridging principle, which makes consensus possible [and] ensures that only those norms are accepted as valid that express a general will”.93 Like the principle of publicity, (U) clarifies the moral insight and practical intent at work in the consensually- oriented discourse of the property-owning bourgeois public in its opposition to the de- facto, unilateral authority of the Estates. Unlike Kant’s principle of publicity, however, principle (U) explicitly accounts for the link between morality and empirical interest. Moral action does not so much require the suppression of inclinations as their expression through non-distorted forms of communication. Morality concerns the discovery and formulation of generalisable empirical interests, and it is in relation to “generalisable interests” that the validity of the agreement of the bourgeois public can be either affirmed or contested. Habermas writes: True impartiality pertains only to that standpoint from which one can generalize precisely those norms that can count on universal assent because they perceptibly embody an interest common to all affected [emphasis added]. It is these norms that deserve intersubjective recognition. Thus the impartiality of judgment is expressed in a principle that constrains all affected to adopt the perspectives of all others in the balancing of interests. 94

Third, the theory concerns not only a pragmatic approach to validity and a “universal pragmatic” examination of the basis of validity (principle (U)), but also, and importantly for our purposes regarding social justice, a procedural approach to moral justification in actual arguments. Whether arguments lead to compromises which are fair “depends essentially on procedural conditions subject to moral judgment”95 and these conditions are precisely set down by determining in what sense (U), a rule of argumentation and part of the logic of practical discourses, is to regulate actual discursive practices in which contested norms are intersubjectively evaluated. Habermas proposes the principle (D), a procedure which is intended to satisfy the constraints of impartiality implied by the moral principle (U), in particular, concrete contexts of consensual conflict resolution. According to principle (D), “Only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse”.96 This means, first, that all affected by a contested norm (or representatives of those affected) are to be included as actual participants in a

93 Ibid., 63, see also 57 and 62-68. 94 Ibid., 65. 95 Jürgen Habermas, “Further Reflections on the Public Sphere”, trans. Thomas Burger, in Habermas and the Public Sphere, ed. Craig Calhoun (Cambridge, MA: The MIT Press, 1992), 421-461 at 448. 96 Habermas, Moral Consciousness and Communicative Action, 93.

93 practical discourse; second, that all such participants are to be granted the symmetrical distribution of communication rights; third, that none is to be subject to coercion of any form; and fourth, that participants are to be themselves sincere and truthful.97 Habermas refers to discourse explicitly conducted according to principle (D) as “discourse ethics” or, in his later work, “discourse morality”.98

The principle (D) is procedural in the sense that it is unable to determine the content or outcome of the practical discourses which are undertaken: it cannot itself determine which norms of action are fair but rather leaves this determination to participants themselves. Discursive will-formation – whatever its content – must satisfy the procedural interpretation of (U) as it applies to argumentative contexts, that is, (D). We will see in Chapter 3 that Habermas’ account of law in modern societies rests precisely on principle (D): constitutionalism, human rights, private autonomy and the rule of law are only legitimate if they are co-original with popular sovereignty, democracy and public autonomy, that is, if the addressees of institutions view themselves as authors of these institutions. Thus, the institutionalisation of practices of rational public debate – subject to the principle (D) – is the guiding ideal of Habermas’ entire theory.99

Habermas thus claims that his formulation of a categorical imperative, in terms of the procedural requirement (D) of consensually-oriented discourse, endorses four central characteristics of Kant’s moral philosophy, namely, its deontologism, cognitivism, formalism, and universalism.100 First, Kant’s account of morality is deontological insofar as it defines the good in relation to the form of the moral law and not vice versa

97 Habermas, Warheit und Rechtfertigung: Philosophische Aufsätse, 48. 98 Thomas McCarthy writes in 1994 that discourse ethics “would have been better named “discourse morality” or “discourse justice”. Thomas McCarthy, “Kantian Constructivism and Reconstructivism: Rawls and Habermas in Dialogue”, Ethics 105, no. 1 (1994): 44-63 at 46. 99 McCarthy, The Critical Theory of Jürgen Habermas, 293. Later Habermas will write that what interests him is “the potential for societal self-regulation inhering in the political public sphere” (Habermas, “Further Reflections on the Public Sphere”, 432), and that he continues to maintain that “mass democracies constituted as social-welfare states… can claim to continue the principles of the liberal constitutional state only as long as they seriously try to live up to the mandate of a public sphere that fulfils political functions” (Habermas, “Further Reflections on the Public Sphere”, 441). “The settling of political questions, as far as their moral core is concerned, depends on the institutionalization of practices of rational public debate” (Habermas, “Further Reflections on the Public Sphere”, 447-448). 100 Habermas, Moral Consciousness and Communicative Action, 196-198. For a closer analysis of Habermas’ endorsement of these four elements in Kant’s moral philosophy (deontologism, cognitivism, formalism and universalism), see Pablo Gilabert, “Considerations on the Notion of Moral Validity in the Moral Theories of Kant and Habermas”, Kant Studien 97, no. 2 (2006): 210-227.

94 as per classical moral philosophy.101 The right, in this sense, has priority over the “good”. Discourse morality, like Rawls’ account of a public conception of justice, is also deontological in the sense that the good is to be restricted by reference to the principle (U). Interests are thus to be determined via the consideration of all equally. In Chapter 3, we will note that Habermas, in dealing with the question of the moral basis of the rule of law, will draw an explicit distinction between moral and ethical discourses and will explain the sense in which only the former lays stake to universal validity. However, he will insist that constitutional democracy is to be limited by moral universal validity claims and not ethical claims.

Second, Kant’s account of morality is cognitivist by which Habermas means that it takes ethical sentences to express propositions capable of objective evaluation in terms of validity or invalidity in a manner analogous to truth claims. In opposition to emotivists and intuitionists, Habermas thinks that claims are a certain kind of knowledge and moral questions may be rationally assessed in terms of criteria of validity which are publicly available. A moral statement or contested validity claim is to be assessed, in Kant, in terms of the categorical imperative procedure and, in Habermas, in terms of the procedure (D) which must be satisfied in intersubjective agreement concerning the disputed claim.

Third, in Kant, the procedure which satisfies the basic moral principle is formalist, by which Habermas means that it discriminates between valid and invalid norms in terms of their generalisability. Discourse morality, as I have just indicated, replaces the Kantian categorical imperative procedure by a procedure of moral argumentation (D).

Finally, Kant’s account of the moral principle is universalist in the sense that it claims universal validity and not simply the intuitions of a particular culture or epoch. As Habermas notes, Kant’s claim is that pure practical freedom is a “fact of reason” insofar as the will cannot determine itself to action on the basis of law unless it assume as given the existence of the transcendental freedom which is “problematic” for the theoretical interest.102 Kant suggests that the “fact of reason” is attested to by moral feeling, a claim

101 Kant, “Critique of Practical Reason”, 5:58-65. 102 Ibid., 5:31.

95 which Habermas argues cannot be sustained within the Kantian system insofar as the “moral feeling” which attests to the practical existence of the moral law is neither empirical nor rational and thus, incomprehensible. Habermas attempts to account for the “fact of reason” by beginning not with the subject of moral action but with structures of communication. Since empirical speech is only possible by virtue of the fundamental norms of rational speech, the cleavage between a real and an inevitably idealised (if only hypothetically ideal) community of language is built not only into the process of argumentative reasoning but into the very life-praxis of social systems. In this way, perhaps the Kantian notion of the fact of reason can be revitalised.103

His own reconstruction of principle (U) via the pragmatic presuppositions of consensually-oriented communication is intended to justify the moral principle in the fallible manner of the reconstructive sciences, thereby providing sufficient proof that the moral principle is universalist.

2.3 Habermas and the early Rawls

We are now in a position to clarify the two criticisms which Habermas brings to Rawls’ early Theory in Communication and the Evolution of Society and Moral Consciousness and Communicative Action 104 and the manner in which these criticisms concern Rawls’ understanding of both the “art of the possible”, that is, his determination of the procedures and content implied by Kant’s “impartial standpoint”, and his conception of the critical potential of this interpretation.

First, according to Habermas, Rawls implicitly concedes that the very equation of justice with an “impartial standpoint” is contingent upon the judgments of a specifically democratic society. Rawls does “not even offer a justification of the moral principle but content[s] [himself] with reconstructing pretheoretical knowledge”.105 Habermas continues: The constructivist proposal to erect a language of moral argumentation on a systematic basis [is such that] the introduction of a moral principle that regulates

103 Habermas, “A Postscript to Knowledge and Human Interests”, 185. 104 Habermas, Communication and the Evolution of Society, 184, 205; and Habermas, Moral Consciousness and Communicative Action, 43, 66, 79, 94, 116-117, 119, 122, 198, and 213-14. 105 Habermas, Moral Consciousness and Communicative Action, 79.

96 language is convincing only because it conceptually explicates extant intuitions.106

The defence of the Kantian criteria is constructivist in the sense that it depends for its plausibility on its capacity to systematise the extant considered judgments (both moral and non-moral) of a society which is already subject to democratic conditions. Habermas does not think that Rawls defends himself from the reasonable demand for a justification of the very principle of universalisation itself. In contrast, Habermas claims to have provided this justification. That is, he claims to have shown that the principle (U) – the moral principle – is presupposed in any type of consensually oriented social interaction, including the very practice of argumentation itself and thus applies to all persons capable of social interaction.107 It is, like Kant’s account, universalist. 108

This, of course, raises the question of the status which a justification by “rational reconstruction” can claim insofar as the reconstruction itself abstracts from a body of expressions which communicators themselves experience as coherent. Habermas states that the justification of the results of the investigation is only “weak”.109 Insofar as the reconstruction is itself immanent to practices of social interaction, embedded in specific structures of communication, its results are to be continually tested against new experiences along the lines of a reconstructive science. While claiming that its results are objective (necessary and universal), the reconstruction concedes that the claim is itself fallible in the sense that it cannot be demonstrated a priori.110 111 This fallibility is

106 Ibid., 79. 107 Ibid., 94-98. 108 Ibid., 197. 109 Habermas sometimes writes that the ideal is “quasi-transcendental”. At other times he writes that it is “de-transcendentalised”. As Thomas McCarthy points out, Habermas makes the project of transcendental philosophy “dependent on a posteriori knowledge” so that the reconstructed necessary and universal conditions are relativised (McCarthy, The Critical Theory of Jürgen Habermas, 279; see also Thomassen, Deconstructing Habermas, 37-38). 110 Habermas, Communication and the Evolution of Society, 21-24; Habermas, “A Postscript to Knowledge and Human Interests, 183; and Habermas, Moral Consciousness and Communicative Action 16, 92, 96, 98, 116-119. 111 It must be conceded that Habermas is not as careful in his early work to distinguish his own account of immanently reconstructed, fallibilistic and detranscendentalised “universal and necessary conditions” from the Kantian notion of a priori. Only from Communication and the Evolution of Society onwards does he clearly draw the line. Much later, Habermas writes that “The necessity of this “must”… does not have the transcendental sense of universal, necessary and noumenal conditions of possible experience, but has the grammatical sense of an “inevitability” stemming from the conceptual connections of a system of learned – but for us inescapable – rule-governed behaviour. After the pragmatic deflation of the Kantian approach, “transcendental analysis” means the search for presumably universal but only de facto inescapable conditions which must be met for certain fundamental practices or achievements. All practices for which we cannot imagine functional equivalents in our sociocultural forms of life are

97 not problematic, however, insofar as every communicative act thus far (including the skeptic’s argument) performatively depends on such conditions. Indeed, it is in arguments regarding the pragmatic presuppositions of argumentation that the skeptic who contests the validity of (U) can be shown his or her error: insofar as the skeptic cannot argue against the presuppositions without simultaneously presupposing them, he or she performatively (and pragmatically) contradicts the propositional, semantic content of his or her claim. It is precisely this argument that Habermas brings against Rawls (who, according to Habermas depends on such universal structures for the very communication of his theory) and against Derrida, Levinas, Lyotard and Foucault, who he takes to be arguing against very possibility of formulating necessary and universal presuppositions of rational argumentation, thereby engaging in performative contradiction.112

Second, Habermas claims that the conditions laid out in principle (D) for the validation of contested norms in actual discourse are purely procedural whereas Rawls’ “decision procedure” is both monological and substantive. As Habermas writes: The discourse-centred theoretical approach has the advantage of being able to specify the preconditions for communication that have to be fulfilled in the various forms of rational debate and in negotiations if the results of such discourses are to be presumed to be rational.113

Insofar as contested norms of interaction are now to be validated by those participants who are subject to them, principle (D) describes only those procedures which must be reached if any substantive agreement among such participants is to be fair. In contrast, both Rawls and Kant operationalise the “impartial standpoint” by means of a monological argument. Both assume that individuals can rationally justify norms in solitary reflection.114 According to Rawls’ substantive “decision procedure”, a solitary individual – Rawls the theoretician – is entitled to ascribe as valid for all others those

“fundamental” in this sense”, that is, in the sense that they are shown to be necessary by analysis on a par with reconstructive science whose results are essentially fallible (see “From Kant’s “Ideas” of Pure Reason to the “Idealising” Presuppositions of Communicative Action” in Jürgen Habermas, Truth and Justification, trans. Barbara Fultner (Cambridge, MA: The MIT Press, 2003), 83-130 at 86). Habermas sees himself as rehabilitating the question of a transcendental ground without positing a subject of knowledge which is somehow abstracted from its own natural-evolutionary and socio-cultural histories. Habermas, “A Postscript to Knowledge and Human Interests”, 164; see also Habermas, Moral Consciousness and Communicative Action, 92 and 96. 112 Habermas, Moral Consciousness and Communicative Action, 78-82. 113 Habermas, “Further Reflections on the Public Sphere”, 448. 114 See 2.2 for Habermas’ account of Kant’s CI procedure as monological.

98 principles which survive the original position test. However, Habermas claims that principle (U) and its discourse procedure (D) indicate that norms of action are to be validated intersubjectively:115 the validation of norms must be made to depend on real practical discourses (or advocatory discourses conducted as substitutes for them) undertaken by all those affected.116 For Habermas, Rawls’ substantive conception of justice is thus best understood as a contribution to a practical discourse among citizens, where it must be left up to citizens themselves to determine the validity of the conception in reference to the procedures of practical discourse.117

Rawls’ “art of the possible”, that is, his empirical and substantive interpretation of Kant’s impartial standpoint within the context of democratic societies, does not, for Habermas, define the outer limit of the standpoint as it functions in practices of consensually-oriented action or language. Consequently, the critical potential of Rawls’ interpretation is limited in three senses. First, individuals are free only to the extent that they can freely affirm for the same reasons the ideal of the person implied by their social institutions which, in Rawls’ early theory is the moral ideal of the person with a conception of the good and a sense of justice. This is an unrealistic requirement since it goes beyond what the moral principle requires, as Habermas defines it. Like Rawls, Habermas defines freedom as self-determination, requiring that valid norms be such that all affected can freely accept the consequences and side-effects which the norm can be expected to have. However, unlike Rawls, freedom consists in participation in uncoerced intersubjective communication and not in being able to affirm a substantive moral idea of the person.

According to Habermas, the critical potential of Rawls’ theory is limited in a second sense. Society’s public institutions can only be criticised or affirmed depending on the extent to which they are regulated by the two Rawlsian principles of justice. This is unsatisfactory, for Habermas, insofar as it paternalistically ascribes to society principles which should rather be determined by citizens themselves in practical argumentation and thus forecloses other legitimate sources of critique. For Habermas, society’s public

115 Habermas, Moral Consciousness and Communicative Action, 66, 202fn and 213. 116 Ibid., 94 and 98. 117 Ibid., 66 and 94.

99 institutions are to be criticised or affirmed by the extent to which they guarantee the procedural conditions for participation in collective will-formation.

The third limitation concerns Rawls’ constructive defence of the criteria of the impartial standpoint in relation to their capacity to systematise the considered moral and non- moral judgments of members of specifically democratic societies. Historically located constructive defence is unsatisfactory, for Habermas, insofar as it limits the critical function of the theory uniquely to societies which are already democratic, excluding all other societies who do not yet implicitly affirm a Kantian conception of the person. In contrast, by defining the limit of the “possible” in terms of a moral principle which applies to all persons capable of social interaction, Habermas’ discourse theoretical approach does not restrict its critical potential in the above senses, neither paternalistically ascribing to society the principles for its regulation nor limiting its claims uniquely to democratic societies. For Habermas, the “impartial standpoint” can potentially play a critical function in all arenas of communication in any context. All norms and institutions can be criticised or affirmed with reference to the extent to which their implicit or explicit validity claim can be said to satisfy principle (D). Philosophy “explain[s] and ground[s] the moral point of view”,118 formulating its procedural criteria and thereby guiding the attempts to substantively realise it in historical form. To repeat the striking claim referred to at the outset, philosophy cannot “make any kind of substantive contribution… [it] does not have privileged access to particular moral truths”. 119

As Rawls’ later work will indicate, he indeed agrees with the second part of Habermas’ statement, namely, that political philosophy does not have privileged access to particular, substantive moral truths. The fact of reasonable pluralism as regards moral truth requires, as indicated at the end of Chapter 1, that a “more realistic” account of the basis of stability be provided, one which does not itself depend on a moral or philosophical comprehensive doctrine (see Chapter 3). Indeed, Rawls will turn the tables on Habermas’ account of the principle (U) and its discourse procedure (D), suggesting that such an account is itself comprehensive and, as such, cannot ground the

118 Ibid., 211. 119 Ibid., 211.

100 determination of political principles. It is not a conception which citizens generally affirm or are likely to affirm. For the later Rawls, the “moral basis” of politics is itself already substantive in a sense which Habermas overlooks. As Rawls will explain in his final summary of the theory of justice in Justice as Fairness: A Restatement, one role which political philosophy plays is that of “reconciliation” in the Hegelian sense: political philosophy has the ability to calm frustration and rage against society by showing how social institutions can be understood as rational and reasonable by those who must live under them.120 In order to fulfil this role, political philosophy must make a substantive contribution by means of an immanent analysis, while affirming that it cannot determine any ultimate foundation of moral truth.

I hope to have shown that Habermas, like Rawls, assumes that a correct interpretation of the practical intent of Kant’s idea of impartiality can be objectively interpreted and actually practiced, this time in discourse and decision. I have argued that his difference with Rawls turns, at all times, around the limits of the “possible”.

I will now turn to examine how Rawls and Habermas refine their respective views of the content of impartiality. I will do so by discussing their 1995-1996 debate on the limits of the “possible”, explaining how Rawls adjusts the content of his view to account for the fact of reasonable pluralism. As Rawls himself puts it, “a political conception must be practicable, that is, must fall under the art of the possible”.121 Although Habermas certainly agrees with this statement, he does not think that Rawls correctly identifies the practicable limits of the “possible”.

Chapter 3 plays an important role in the context of this thesis. After identifying, in a first stage, the central difference between constructive, reconstructive and deconstructive justice, I will then pursue the second stage of my argument. I will effectively argue that the “art of the possible” must be supplemented by the deconstructive acknowledgment of justice’s impossibility. Chapter 3 will be particularly important to this second stage because it explains how the mature theories of Rawls and Habermas come to affirm some of the difficulties involved in determining the content of

120 Rawls, Justice as Fairness: A Restatement, 4. 121 Rawls, “The Domain of the Political and Overlapping Consensus”, 486.

101 impartiality under conditions of value pluralism. In the second stage of the thesis (Chapters 6 and 7), I will take these difficulties seriously, arguing that both Rawls and Habermas need to affirm the essential perfectibility of justice. I will now turn to consider Rawls’ and Habermas’ debate over the practicable limits of the “possible”.

102 Chapter Three

Political Liberalism, Deliberative Democracy and the Impartial Standpoint

[Citizens] cannot reignite the radical democratic embers of the original position in the civic life of their society… Habermas, “Reconciliation through the Public Use of Reason”, 69-70.

We are bound to ask: Why not?… whenever the constitution and laws are in various ways unjust and imperfect, citizens with reason strive to become more autonomous by doing what, in their historical and social circumstances, can be reasonably and rationally seen to advance their full autonomy. Rawls, Political Liberalism, 400 and 402.

The Rawls-Habermas debate of 1995-1996 continues to take place within the framework of what Rawls refers to as “the art of the possible”. Both philosophers think that the idea of an “impartial standpoint” – the practical intent, each agree, of Kant’s practical philosophy – can be objectively interpreted and realised in practices of rational discourse and decision. Their debate concerns the details of the correct interpretation, now with particular attention to the modern conditions of reasonable pluralism.

Now, this claim calls for immediate qualification with respect to Rawls’ later version of the impartial standpoint, which forsakes as “unrealistic” Theory’s requirement that persons accept the very same public conception for the very same reasons. In a modern, liberal democracy, a truly impartial constructivist standpoint cannot demand such homogenous allegiance from its citizens. Under conditions of reasonable pluralism, an absolute justification, which Rawls terms “a comprehensive doctrine”, cannot satisfy the constructivist requirement that the public conception also generate uncoerced support. Rawls concedes that the gross coercion required to enforce justice as fairness would effectively invalidate it as an acceptable public viewpoint. He thus revises his

103 account of the nature and object of consensus.1 First, consensus is “overlapping”, that is, it allows persons to accept the same public conception for different reasons. Second, the object of consensus cannot reasonably include justice as fairness alone; rather, it is expected that overlapping consensus will obtain on a set of more basic public values and constitutional essentials which the family of reasonable public liberal conceptions together endorse.2

This denial of absolute foundations in Rawls’ later work, as well as his revision of the nature and object of consensus might well appear to compromise my claim that the later Rawls also lays stake to an objective interpretation of an impartial standpoint. However, constructivism does lay claim to such objectivity. First, it requires that its content be specified in terms which are acceptable to all those affected by it. Indeed, it is precisely this claim which necessitates the changes of Rawls’ later work. He hopes that: this method may enable us to conceive how, given a desire for free and uncoerced agreement, a public understanding could arise consistent with the historical conditions and constraints of our social world.3

Second, political liberalism’s family of different public liberal conceptions must reach agreement on a set of more basic public values and, at the very least, on “constitutional essentials”.4 Given the variety of reasonable liberal political conceptions available, it is “of the greatest urgency” that citizens reach such practical agreement, subject to the liberal principle of legitimacy, which demands that political power be exercised in accordance with those constitutional essentials to which all free and equal citizens may reasonably be expected to endorse.5 Thus, despite the theory’s denial of foundations, Rawls maintains that all reasonable liberal conceptions (including justice as fairness)

1 The changes included in the following texts are considerable: Rawls, “New Introduction (Introduction to the Paperback Edition)”, in Political Liberalism, xxxvii-lxii; Rawls, “Reply to Habermas”, and John Rawls, “The Idea of Public Reason Revisited”, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 573-615. 2 Indeed, Rawls writes that Political Liberalism’s explicit contextualisation of the problem of justice within modern democratic societies characterised by a pluralism of reasonable comprehensive doctrines – moral, philosophical, religious etc. – entails only one fundamental correction to Theory, namely, the revision of its unrealistic account of the stability of justice as fairness (Rawls, Political Liberalism, xvii- xix). As Chapter 1.3 explained, the success of a constructivist conception which incorporates an ideal of the person as free and equal also depends on its capacity to actually serve as the object of uncoerced support among such persons since such support ensures its practicability. 3 Rawls, “Justice as Fairness: Political Not Metaphysical”, 395, emphasis added. 4 By “constitutional essentials”, Rawls means: a. fundamental principles which specify the general structure of government and the political process; and b. equal basic rights and liberties of citizenship which legislative majorities are to respect. Rawls, Political Liberalism, 227. 5 Rawls, Political Liberalism, 137, 216 and 217.

104 must, despite their differences, endorse the same set of basic public values and the same constitutional essentials.6

This chapter aims to outline the manner in which the Rawls-Habermas debate highlights each philosopher’s mature conception of the limits of the “art of the possible”. In very general terms, their debate concerns precisely the type of agreement which it is indeed possible to establish between reasonable persons.7 From 1985 onwards, Rawls has claimed that the only sort of agreement which one can expect and reasonably require is an agreement limited to common political values and, more specifically, constitutional essentials, where these values are also embedded in different and unspecified ways into the particular moral, philosophical or religious comprehensive doctrines which individuals and groups may have.

In contrast, Habermas thinks that agreement need not be limited to uniquely political values. Rather, agreement on the very counterfactual idealisations of intersubjective reason, both theoretical and practical (that is, agreement on a comprehensive doctrine) can reasonably be demanded of all participants in discussion – whatever the nature of their society – insofar as these participants are capable of intersubjective communication. Habermas thus claims that his theory is both more and less modest than that of Rawls. It is more modest because it focuses exclusively on the task of identifying the purely procedural aspects of the public use of reason in discourse about legitimacy and does not attempt to sketch the substantive content of a “public conception”. It is less modest in claiming that the procedures it identifies transcend all societies and apply to all language users, and thus, that such language users affirm their rationality when they affirm such procedures.8

This disagreement over the nature of the agreement which it is possible to establish issues from a disagreement over the limits of the impartial standpoint itself. In what

6 “A political conception is at best but a guiding framework of deliberation and reflection which helps us reach political agreement on at least the constitutional essentials and the basic questions of justice”. Rawls, Political Liberalism, 156. 7 I indicate my agreement with Patrick Pharo’s definition of the terms of the debate. Patrick Pharo, “Les limites de l’accord social: à propos du débat Habermas-Rawls sur la justice politique”, Revue française de sociologie 39, no. 3 (1998): 591-608. 8 Habermas, “Reconciliation through the Public Use of Reason”, 72-73.

105 follows, I propose to present Rawls’ defence of his revised political account of justice against Habermas’ three criticisms (3.1), examining the problems which Rawls identifies in Habermas’ alternative discourse-theoretic account of deliberative democracy (3.2). In concluding (3.3), I will identify the practical assumptions which both men share. While their debate draws attention to some of the difficulties involved in determining the content of impartiality, Rawls and Habermas nonetheless unite in assuming the possibility of objectivity. I will preface the move to Chapter 4 which will contrast Rawls’ and Habermas’ optimism with Levinas’ more pessimistic account of the non-equivalence of ethical obligation and the value of impartiality.

3.1 Habermas’ criticisms of Political Liberalism

Habermas opens the debate with three central criticisms. First (3.1.1), he does not believe that the design features of the original position decision procedure actually clarify and secure the standpoint of impartial judgment as Rawls intends.9 Moreover (3.1.2), Rawls’ theory depends, for its plausibility, on an appeal – via the concepts of overlapping consensus and the Reasonable – to merely contingent patterns of acceptance and not to universal standards of justification. This appeal compromises the cognitive validity which a theory of justice is entitled to claim.10 Finally (3.1.3), these two problems prevent Rawls from grasping the nature of the cognitive claim to legitimacy which a constitutional state is entitled to make. Rawls accords liberal, individual basic rights undue primacy over the democratic principle with its legitimating procedures of public argumentation and thereby fails to achieve his goal of harmonising both the liberties of the moderns (individual, private autonomy) with the liberty of the ancients (public and civic autonomy).11 12 In his reply, Rawls defends himself from each criticism, and in turn articulates certain problems with Habermas’ alternative account of the impartial standpoint (3.2).

9 Ibid., 50 and 51-59. 10 Ibid., 50 and 59-67. 11 Ibid., 50-51 and 67-73. 12 The distinction between the liberty of the ancients and the liberty of the moderns dates back to Benjamin Constant’s influential text on the subject. See his “Liberty of the Ancients Compared with that of the Moderns”, in Benjamin Constant, Political Writings, trans. Biancamaria Fontana (Cambridge, MA.: Cambridge University Press, 1988), 307-328.

106 3.1.1 The impartial standpoint

According to Habermas, the central design features which Rawls’ decision procedure incorporates – namely, the representation of parties as rational egoists, the assimilation of basic rights to primary goods, and the veil of ignorance impartiality constraints – are themselves substantive normative assumptions rather than procedural features of a truly impartial standpoint.13 Habermas’ account of the failure of each design feature leads him to repeat the second of the two criticisms which we saw him formulate in Chapter 2, namely, that the moral validity of an essentially substantive and monologically argued theory can only be confirmed in actual or advocatory practical discourses satisfying the procedures of principle (D).14

Rawls offers two responses to this first criticism.15 The first consists in indicating that the content of the impartial standpoint is not exhausted by the design features of the original position but is also taken up by the idea of political (and not moral) constructivism which attributes a restricted role to justice as fairness within a more general conception of “political liberalism”. The second response indicates that Rawls understands justice as fairness (with its rather particular account of the original position constraints) as just one possible version of a public conception which can be said to offer a reasonable account of principles for public political life.

The idea of the political requires, for its development, a new family of ideas which articulate a distinction between “political” and “comprehensive”. These ideas include, first (3.1.1.1), the notion of constructivism as political rather than comprehensive with its “three characteristic features”, namely, a moral conception for the basic social structure alone, a “freestanding view”, and a content implicitly affirmed in the public political culture;16 second (3.1.1.2), the revision of Theory’s account of stability by means of the concept of an “overlapping” – and not merely simple – consensus; third

13 Habermas, “Reconciliation through the Public Use of Reason”, 50 and 51-59. 14 See Chapter 2.2 for Habermas’ argument supporting (D) as the principle for the discursive redemption of impartial claims. (D) requires that “only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse”. Habermas, Moral Consciousness and Communicative Action, 93. 15 Rawls, “I. Two main differences”, in “Reply to Habermas”, 373-385. 16 Rawls, Political Liberalism, 12; and Rawls, “The Idea of Public Reason Revisited, 584.

107 (3.1.1.3), an expanded concept of the Reasonable and an explicit emphasis on the priority of the Reasonable over the Rational; and finally (3.1.1.4), the idea of public reason in which justice as fairness plays a restricted role.17 It is within a theory of political constructivism and of political liberalism that Rawls now contextualises his own theory of justice as fairness (3.1.1.5).

3.1.1.1 Political constructivism

The explicit presentation of justice as fairness as a political conception and not a moral comprehensive doctrine constitutes an important modification of Rawls’ original presentation of constructivism.18 A political conception of justice has “three characteristic features”.19 First, it is a moral conception in the sense that its content is given by ideals, principles and standards which articulate certain values.20 However, it is “a moral conception worked out for a specific kind of subject”,21 namely, for the “basic structure” of a modern constitutional democracy or, in other words, for those major social institutions – the political constitution and the principal economic and social arrangements – which distribute fundamental rights and duties and determine the division of advantages from social cooperation. Such values are neither comprehensive nor general but rather uniquely political. In contrast, a moral doctrine is comprehensive when it includes conceptions of what is of value in human life, limiting both the political and non-political conduct of citizens and, in the limit, their life as a whole; it is general when it applies, in the limit, to all subjects universally.22 Under modern conditions, a political doctrine cannot reasonably be expected to apply to the whole of life, nor to all subjects universally. Instead, the values which a political conception

17 Rawls, Political Liberalism, xix. 18 “One thing I failed to say in A Theory of Justice, or failed to stress sufficiently, is that justice as fairness is intended as a political conception of justice”. Rawls, “Justice as Fairness: Political Not Metaphysical”, 389. See also Rawls, Political Liberalism, xix. 19 Rawls, Political Liberalism, 11; see also Rawls, “Reply to Habermas”, 376. 20 “I emphasise that the ides of the domain of the political and a political conception of justice are normative and moral ideas in their own right, that is, their “content is given by certain ideals, principles and standards, and these norms articulate certain values, in this case political values”. Rawls, Political Liberalism, xxxviii and 11. 21 Rawls, Political Liberalism, 11; see also Rawls, “Justice as Fairness: Political Not Metaphysical”, 389. 22 Rawls, Political Liberalism, 13, 175 and 374.

108 articulates are intended uniquely for the regulation of the basic (political) structure of a modern constitutional democracy.23

Second, a political conception is a “free-standing view”, meaning it is neither presented as, nor derived from, any one comprehensive doctrine.24 The political conception involves no wider commitment to any other comprehensive doctrine. Although citizens should be able to affirm that their own comprehensive doctrine and the political conception which they endorse are related in some way (see 3.1.1.2), the political conception neither depends on nor presupposes any comprehensive view. Its justification and objectivity issues solely from the fact that it can be said to apply to the basic structure in a manner acceptable to all reasonable comprehensive doctrines. As he did in “Kantian Constructivism in Moral Theory”, Rawls defines the intention of a political conception as practical, not metaphysical or epistemological. Justification is addressed to others and must proceed from some sort of agreement, that is, from premises which we and others publicly recognise as acceptable to us for the purpose of establishing a working agreement on the terms of society’s primary social institutions. Consequently, deeply disputed questions, which cannot provide a workable and shared basis for a public conception, are to be avoided.25 Neither philosophy, as the search for metaphysical or epistemological truth, nor religion, nor any other comprehensive doctrine, can resolve the question independently of the question of the terms which citizens themselves can reasonably be expected to accept.26 A public conception cannot reasonably demand wider commitment to any other doctrine.

Third, the content of a political conception “is expressed in terms of certain fundamental ideas seen as implicit in the public political culture of a democratic society”.27 By public culture, Rawls means the distinctly political and public institutions of a constitutional

23 Rawls, “Reply to Habermas”, 376. 24 Rawls, Political Liberalism, 12; and Rawls, “Reply to Habermas”, 376. 25 Rawls, “Justice as Fairness: Political Not Metaphysical”, 394. 26 “Given the profound difference in belief and conceptions of the good at least since the Reformation, we must recognise that, just as on questions of religious and moral doctrine, public agreement on the basic questions of philosophy cannot be obtained without the state’s infringement of basic liberties. Philosophy as the search for truth about an independent metaphysical and moral order cannot, I believe, provide a workable and shared basis for a political conception of justice in a democratic society”. Rawls, “Justice as Fairness: Political Not Metaphysical”, 395. This is precisely because a “continuing shared understanding on one comprehensive religious, philosophical or moral doctrine can be maintained only by the oppressive use of state power”. Rawls, Political Liberalism, 37. 27 Rawls, Political Liberalism, 13.

109 regime and the public traditions of their interpretation as well as the historical texts and documents which are common knowledge. It contrasts with the “background culture” or the social culture, which includes the comprehensive doctrines of civil society (religious, philosophical, moral, scientific etc.).28

Consequently, Rawls revises his presentation of constructivism in two ways. First, constructivism is to be understood as political not moral. “Kantian Constructivism in Moral Theory” would thus have been more appropriately entitled “Kantian Constructivism in Political Philosophy”, since the conception of justice discussed is indeed political.29 Constructivism is here political because its subject is political, that is, it is formulated uniquely for the regulation of the basic structure of a modern constitutional democracy. In “Justice as Fairness: Political Not Metaphysical”, Rawls continues to maintain that his version of political constructivism is Kantian, in the sense that it incorporates a Kantian political ideal of the person as free, equal, rational and socially cooperative (see Chapter 1.1.2) where this ideal applies to political institutions and not to life as a whole.30 However, and second, Rawls distances himself in Political Liberalism from “Justice as Fairness: Political Not Metaphysical” by claiming that his version of political constructivism is to be distinguished even from the adjective “Kantian”.31 Although justice as fairness continues to incorporate the very same political ideal of the person which “Justice as Fairness: Political Not Metaphysical” described as “Kantian”, Rawls now distances his political constructivism from the term “Kantian” so as to avoid the risk of implication with the moral, comprehensive and general constructivism which he believes Kant’s moral philosophy supports.

Rawls believes that political constructivism is distinct from Kant’s moral constructivism in four senses.32 First, the subject of Kant’s constructivism is the whole of life and not just the basic structure of society. Thus, in Kant’s doctrine the ideal of autonomy is comprehensive since it has a regulative role for life in general. Although some individuals may well choose to view such an ideal as regulative for their own lives, the ideal is not suitable as a public basis of justification for societies characterised by

28 Rawls, Political Liberalism, 13; and Rawls, “The Idea of Public Reason Revisited”, 576. 29 Rawls, “Justice as Fairness: Political Not Metaphysical”, 389. 30 Ibid., 395. 31 Rawls, Political Liberalism, 99-101. 32 Ibid., 99-101.

110 reasonable pluralism. Second, Kant’s concept of autonomy is “constitutive” of an independent order of values for social order, that is, values of a transcendentally ideal kingdom of ends. Rawls thinks that the order of political values is, in Kant, derived from the objective principle of practical reason. Now, while Rawls wishes to retain the Kantian insight, whereby principles are constructed by a process of rational deliberation subject to the idea of an impartial standpoint, his own political constructivism requires that this content be also practicable. This is part of his “art of the possible”. He thus doubts that uncoerced public consensus can obtain on any comprehensive view and that includes Kant’s idea that an objective principle of practical reason implies a transcendentally ideal order of ends. Third, Rawls believes that whereas Kant’s ideal of the person also has its foundation in his transcendental idealism, political constructivism seeks an ideal which is justified to the extent that it is likely to be actually endorsed by free and equal citizens. Finally, Kant’s very aim is to display the coherence and unity of reason, both theoretical and practical, with itself, such that the natural law and moral freedom can be viewed as compatible. For Rawls, the aim of political constructivism is far simpler, namely, to uncover a public basis of justification on questions of political justice given the fact of reasonable pluralism. It leaves to the side Kant’s concern with the nature of metaphysics and morality since, under modern conditions, such conceptions cannot reasonably aspire to gain the uncoerced allegiance of the entire citizenry.

So while justice as fairness, presented now as part of a “political liberalism”, still seeks to realise “the intent of the Kantian form of the contract doctrine”,33 whose criteria and interpretation Chapter 1 laid out, Rawls is careful not to attribute the adjective “Kantian” to political constructivism and its incorporated personhood ideal, in order to distinguish political constructivism from a Kantian moral comprehensive doctrine. Indeed, Rawls will suggest that although Habermas distinguishes his own version of political legitimacy from Kant’s for similar reasons – so as to guarantee a fully intersubjective interpretation of the categorical imperative – Habermas’ nonetheless remains a comprehensive, general doctrine of truth and validity and thus is inappropriate as a public conception (see 3.2.1.3).

33 Ibid., 288.

111 3.1.1.2 Stability: overlapping consensus

As a result of these central changes, Rawls revises Theory’s problematic solution to the requirement that the theory be practicable, that is, that it generate its own support non- coercively. Under conditions of reasonable pluralism, Theory’s concept of the stability of a well-ordered society is not realistic since it requires, we recall, that persons accept the very same two principles for the very same reasons.34

As “free-standing”, the conception is to be the object of an “overlapping” – and not merely simple – consensus, that is, a consensus which results from persons affirming the public conception from within their own comprehensive or partially comprehensive doctrines. “The reasonable [comprehensive] doctrines endorse the political conception, each from its own point of view”.35 The political conception “is a module”, an essential constituent part, which fits into and can be supported by the various reasonable comprehensive doctrines which endure in the society regulated by it.36 Since citizens themselves should be able to affirm the public conception from within their own comprehensive doctrine, the doctrine is not the result of political compromise (a mere modus vivendi) but is rather affirmed by citizens – for their own reasons – as itself a great value which is not easily overridden. In an overlapping consensus, the political conception is supported by various reasonable comprehensive doctrines for their own various reasons.

It is by means of the method of “reflective equilibrium” that citizens insert the political conception into their reasonable comprehensive doctrines.37 Citizens as individuals – you and me, each with our own comprehensive or partially comprehensive views – assess the public conception in terms of how well it articulates our own considered convictions of political justice, at all levels of generality, after due examination, once all

34 Rawls, Theory, 455-456/398-399 rev. In Political Liberalism, revising the requirement that persons accept the same principles for the same reasons, Rawls writes, “The fact of reasonable pluralism shows that, as used in Theory, the idea of a well-ordered society of justice as fairness is unrealistic. This is because it is inconsistent with realising its own principles under the best of foreseeable conditions. The account of the stability of a well-ordered society in part III is therefore also unrealistic and must be recast”. Rawls, Political Liberalism, xix. 35 Rawls, Political Liberalism, 134, emphasis added. 36 Ibid., 12. 37 Ibid., 28. See Chapter 1.2.2 for Rawls’ early presentation of “reflective equilibrium”.

112 adjustments and revisions have been made. In an overlapping consensus, the particular stage of reflective equilibrium which persons have achieved is such that a public conception has been incorporated, in some way or another, into the various comprehensive views. One view might affirm the political conception because its general and comprehensive religious doctrine and account of free faith supports a principle of toleration which underwrites the fundamental liberties of a constitutional regime. A second view might affirm the political conception on the basis of Kant’s general comprehensive philosophical liberal moral doctrine and its account of moral autonomy. A third view, which Rawls calls a “hybrid” view, with both political values formulated by a freestanding political conception of justice and a large family of non- political values, might affirm the political conception on the basis that under reasonably favourable conditions which make democracy possible, political values normally outweigh whatever non-political values conflict with them. These three views would then overlap in supporting the very same public conception of justice but for different reasons.

However, the second edition of Political Liberalism and the revised version of public reason (“The Idea of Public Reason Revisited”) go still further, arguing that not only is it unreasonable to expect persons to agree to the same conception for the same reasons, it is equally unreasonable to expect persons to agree to the very same conception.38 It is highly unlikely that overlapping consensus will ever obtain on one political liberal conception alone. It is more reasonable to expect that overlapping consensus will obtain on a set of more basic public values which a family of reasonable political liberal conceptions together endorse. A well-ordered stable society is thus one in which: (A) everyone accepts and knows that others accept the principles of one of a family of reasonable, liberal, public conceptions of justice; and (B) the basic social institutions are

38 I agree with Burton Dreben that the paperback edition of Political Liberalism, published in 1996, should really be viewed as a second edition of the hardback published in 1993, insofar as it contains a twenty-six page “New Introduction – Introduction to the Paperback Edition” (Rawls, Political Liberalism, xxxvii-lxii) and the “Reply to Habermas” (Rawls, Political Liberalism, 373-434) which modifies and changes the emphasis of the previous edition. I also agree with Dreben that Political Liberalism is, for this reason, misleading without the “New Introduction” and that “The Idea of Public Reason Revisited” is the best statement of Rawls’ mature views. See Dreben, “On Rawls and Political Liberalism”, 320. Obviously, my attempt to account for Rawls’ attempt to render the practical intent of Kant’s concept of “impartial standpoint” indicates that I do not agree with Dreben that Rawls goes “slightly astray in exposition… when he [pays] too much lip service to Immanuel Kant” (340). However, Dreben does not explain the sense in which Rawls’ references to Kant lead him astray, and thus I cannot respond further to his comment.

113 effectively regulated by one of a family of reasonable, liberal, public conceptions of justice (or a mix), which includes the most reasonable conception.39 The political conception of “justice as fairness” is just one member of this “family”. Although it is reasonable to expect disagreement among persons on the question of the most reasonable political conception, it is reasonable to expect that they will more or less agree on which political conceptions are actually reasonable, thereby endorsing a more basic set of shared political values. As Rawls had already remarked in the first edition of Political Liberalism: It is inevitable and often desirable that citizens have different views as to the most appropriate political conception; for the public political culture is bound to contain different fundamental ideas that can be developed in different ways.40

Rawls nevertheless insists that, in spite of reasonable disagreement, different liberal political conceptions must together endorse a more basic set of shared public values.41 To qualify as reasonable, a liberal conception must affirm these values. First, it must specify certain liberties (familiar to democratic regimes). Second, it must assign a special priority to these freedoms. Finally, it must include some form of equal opportunity principle, allowing citizens to access all-purpose means to use their liberties. Rawls recognises that different liberal political conceptions can take up these values in sometimes conflicting ways. However, despite these differences in interpretation, overlapping consensus between liberal political conceptions (and between conflicting comprehensive moral doctrines) can nevertheless obtain on these more basic public values, that is, the three conditions cited above.

While it is true that, in Theory, the two principles of justice were to apply primarily to the “basic structure of society” and that the conception was, in this sense, implicitly political, Theory nonetheless required that all persons affirm the same conception for the same reasons. No clear distinction was drawn between ideals for political, public life

39 Rawls, Political Liberalism, xlix-l. Compare the above formulation of stability with Rawls’ early formulation of the stability of the well-ordered society described in the introduction to Chapter 1 which states that well-ordered society is one in which free, equal and rational persons accept and know that the others accept the very same two principles, for the same reasons, and in which public institutions generally satisfy and are generally known to satisfy these principles. Rawls, Theory, 5/4 rev., see also 454/397 rev.; and Rawls, “A Kantian Conception of Equality”, 255. 40 Rawls, Political Liberalism, 227. 41 Ibid., xlviii-xlix and 6.

114 and comprehensive ideals for life as a whole.42 By drawing a line between the moral and comprehensive, on the one hand, and the political, on the other, Rawls limits the content of reasonable agreement to a more basic set of public values on which overlapping consensus can obtain.

3.1.1.3 The Reasonable and the Rational

In Political Liberalism, Rawls expands the concept of the Reasonable and states explicitly that the Reasonable has priority over the Rational. The Reasonable – the willingness to offer and abide by a conception of justice and the willingness to accept the burdens of judgment and their consequence for public reason – is the means by which we enter as equals into the public world of others, ready to propose or accept fair terms of cooperation. The Reasonable, as a virtue of persons in these two senses, is public in a way which the Rational is not.43

In “Kantian Constructivism in Moral Theory”, Rawls had already introduced the ideas of the Reasonable and the Rational, and their role in the construction of the original position decision procedure, ideas which Theory had only implicitly relied on.44 The Rational described the first capacity of moral persons, namely, the capacity to formulate and pursue a conception of the good using principles of rational choice to guide one’s decisions. In contrast, the Reasonable described the second moral capacity, namely, the capacity for a sense of justice or the willingness to propose and abide by fair terms of cooperation.45 As I explained in Chapter 1, the original position attempted to render

42 “Justice as fairness is presented there as a comprehensive liberal doctrine (although the term “comprehensive doctrine is not used in the book) in which all the members of its well-ordered society affirm that same (my emphasis) doctrine. This kind of well-ordered society contradicts the fact of reasonable pluralism and hence Political Liberalism regards that society as impossible”. Rawls, “The Idea of Public Reason Revisited, 614. 43 Rawls, Political Liberalism, 53. 44 I noted in Chapter 1 that although Rawls is correct to remark in “Justice as Fairness: Political Not Metaphysical” (401) that Theory errs in describing justice as fairness as part of the theory of rational choice (see Rawls, Theory, 16/15 rev., 17/16 rev., 583/510 rev.), Theory’s presentation of the procedures of the original position device nonetheless implies the distinction between the Reasonable and the Rational and their relation to, respectively, the capacity for a sense of justice and for a conception of the good which explicitly informs Rawls’ work from “Kantian Constructivism in Moral Theory” onwards. In this sense, the very attempt to provide a Kantian interpretation of Theory is significant, for, as Rawls writes in “Justice as Fairness: Political Not Metaphysical”: “there is no thought of trying to derive the content of justice within a framework that uses an idea of the rational as the sole normative idea. That thought is incompatible with any kind of Kantian view” (401). See Chapter 1.1.2 for further discussion. 45 Rawls, “Kantian Constructivism in Moral Theory”, lecture 1, part 5.

115 each capacity via different procedures; the Rational by means of its description of the parties, the Reasonable by means of its specification of the veil of ignorance constraints within which the parties’ deliberations take place.46 Now, in “Justice as Fairness: Political Not Metaphysical” and Political Liberalism, these two ideas continue to inform Rawls’ presentation of political constructivism and of the original position decision procedure.47 However, Rawls now adds significantly to the conception of the Reasonable. He defines it as a virtue of persons, in terms of not one (as per the earlier text) but two basic aspects. As in the earlier text, the Reasonable designates, first, the willingness to propose fair terms of cooperation and to abide by them, provided others do likewise. It also includes, second, the willingness to recognise the “burdens of judgment” and to accept their consequences for the use of public reason.48

As he did in “Kantian Constructivism in Moral Theory”, Rawls links the first aspect of the Reasonable, namely, the willingness to propose and abide by fair terms of cooperation, to the practical intent of Kant’s categorical imperative. The Reasonable thematises “the idea of reciprocity and mutuality” which is an element of the idea of society as a system of fair cooperation.49

The second aspect of the Reasonable, namely, the willingness to recognise the burdens of judgment and accept their consequences for public reason in directing the legitimate exercise of political power in a constitutional regime50 is equivalent to a particularly

46 In Chapter 1, I explained that in Theory the second moral capacity (the willingness to propose and abide by fair terms of cooperation) actually plays two roles: first, a “purely formal” function, within a theory of rational choice, designed to guarantee the strict compliance of parties with the principles which they choose; second, the representation of “moral persons”, and not parties, as cooperating in the good of social union. From “Kantian Constructivism in Moral Theory” onwards, the first role of the sense of justice drops out of Rawls’ account of justice as fairness, leaving only the second (see Chapter 1.1.2). 47 Rawls, “Justice as Fairness: Political Not Metaphysical”, 401 and 389; and Rawls, Political Liberalism, lecture II, 47-88. 48 Rawls, Political Liberalism, lecture II, in particular §1 and §2. Rawls first introduces the notion of “reasonable disagreement” and its cause, namely, “burdens of reason (judgment)” in 1989. Rawls, “The Domain of the Political and Overlapping Consensus”, 475-478. 49 “Reasonable persons… desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms all can accept. They insist that reciprocity should hold within that world so that each benefits along with others”. They are not merely rational because they do not “violate such terms as suits their interests when circumstances allow”. Rawls, Political Liberalism, 50. Rawls indicates that the distinction between rational and reasonable goes back to Kant, recalling that Kant writes, in the “Religion” that rational people lack “the predisposition to moral personality” (Kant, “Religion”, 6:26), which for Rawls means the particular form of moral sensibility which underlies the capacity to be reasonable. Rawls, Political Liberalism, 51. See Rawls, “Kantian Constructivism in Moral Theory”, 316. 50 Rawls, Political Liberalism, 54-58.

116 strong conception of tolerance. Some form of disagreement is to be expected and such disagreement is fully compatible with the reasonableness of those who disagree.51 The “burdens of judgment” (sources of reasonable disagreement)52 are “the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of political life”.53 These burdens apply not only to the Reasonable and the Rational in their moral and practical use, but also to the theoretical use of our reason. More obvious sources include: difficulties involved in assessing often conflicting and complex empirical and scientific evidence; problems in weighting the relevant considerations; difficulties in determining the content of concepts due to reasonable differences in judgment and interpretation; difficulties in balancing different kinds of normative considerations (the various perspectives which specify obligations, rights, utility, perfectionist ends, and personal commitments etc.); and difficulties in setting priorities and making adjustments when values for a particular system of institutions must be realistically limited. Once we view differences in viewpoint as effects of differences in life experience, we realise that such differences do not indicate irrationality on the part of the other person. We do not think that reasonable disagreement necessarily indicates prejudice and bias, self- or group- interest, blindness and wilfulness (although Rawls is quick to point out that these sources of unreasonable disagreement play their all too familiar part in political life).54 As Charles Larmore points out, reasonable pluralism – as opposed to simple pluralism – describes the proliferation of different ethical and religious ideals which nevertheless share a commitment to fairness.55

As in “Kantian Constructivism in Moral Theory”, the Reasonable, as a virtue of moral persons, has priority over the Rational. Rational autonomy, the capacity to formulate and pursue a conception of the good and to deliberate in accordance with it, is not what Rawls calls “political autonomy” which also requires the virtue of the Reasonable.56 Without citizens affirming the virtue of the Reasonable, justice would not be possible in

51 Rawls, “The Domain of the Political and Overlapping Consensus”, 476. 52 Rawls also refers to the “burdens of judgment” as “burdens of reason”. See Rawls, “The Domain of the Political and Overlapping Consensus”, 475. 53 Rawls, Political Liberalism, 55-56. 54 Ibid., 58. 55 Larmore, “Public Reason”, 378. 56 Rawls, Political Liberalism, 72-81.

117 the sense which Rawls understands it. Citizens, who in their public lives comply with and act from the public conception of justice, achieve full political autonomy. Full autonomy is a political value, not a comprehensive value, by which Rawls means that it is realised in public life by affirming political principles of justice and by participating in society’s collective self-determination over time.

3.1.1.4 Public reason

I have drawn attention to the fact that Rawls limits the content of reasonable agreement to a more basic set of public values on which overlapping consensus can obtain. These values play an important role in what Rawls calls “public reason”.

Public reason is not one political value among others. Rather, it envelops the various elements which make up the ideal of constitutional democracy insofar as it specifies how “the political relation” in which citizens relate to one another should be understood.57 The idea of public reason encapsulates both aspects which Theory identified as important in Kant’s conception of a kingdom of ends, namely, that principles of political association be not merely publicisable (espousing a view which others can reasonably be expected to endorse) but also public (actually affirmed by citizens themselves).58 Public reason is public in three ways: (A) as the reason of citizens as such, it is the reason of the public; (B) its subject is the good of the public and matters of fundamental justice; and (C) third, its nature and content is public, given by the ideals and principles expressed by a society’s conceptions of political justice, and conducted open to view on that basis.59

Regarding (A), as the reason of all citizens, public reason expresses the criterion of reciprocity which is implied by the idea of the Reasonable. A public life founded on

57 Larmore, “Public Reason”, 368. See also Rawls, “The Idea of Public Reason Revisited”, 574. 58 Charles Larmore also recognises the centrality of the idea of publicity to Theory in the sense that fairness itself denotes that mutual acknowledgement of principles which public reason demands. He traces the development of Theory’s implicit idea of publicity into the “full” publicity condition (Rawls, “The Independence of Moral Theory”, 294) and again, into the later idea of “public reason”. Larmore, “Public Reason”. See Chapter 1.1.1 for Rawls’ Kantian requirement that principles be publicisable and public. 59 Rawls, Political Liberalism, li and 213.

118 mutually acknowledged principles is what fairness entails.60 Public reason is an ideal of democratic citizenship, a “duty of civility”, which requires that citizens conduct their political affairs on terms supported by public values which they reasonably expect others to endorse, explaining to one another, on fundamental political questions, how the principles and policies they advocate can be reasonably endorsed by others who do not necessarily share the same doctrine of the good.61

The determination of (B), the public good, requires that citizens who are committed to fairness (and thus, the Reasonable) put their comprehensive differences aside when determining principles for the “basic structure”. Consequently, Rawls believes that public reason’s subject must be restricted to matters of fundamental justice, namely, the determination of “constitutional essentials”.62 As indicated, Rawls believes that the content of reasonable agreement must be limited to a more basic set of public values. These values, I have argued, include, first, a set of liberties; second, a priority assigned to these freedoms; and third, some form of equal opportunity principle (see 3.1.1.2).63 On the basis of the affirmation of these public values, reasonable liberal political conceptions must reach agreement on constitutional essentials. “It is of the greatest urgency for citizens to reach practical agreement in judgment about the constitutional essentials”.64 Rawls writes: Unanimity can rarely if ever be expected on a basic question and so a democratic constitution must include procedures of majority or other plurality voting to reach decisions. It is unreasonable not to propose or endorse any such arrangements. Let us say, then, that the exercise of political power is legitimate only when it is exercised in fundamental cases in accordance with, a constitution, the essentials of which all reasonable citizens as free and equal might reasonably be expected to endorse.65

Constitutional essentials are of two kinds: (a) fundamental principles which specify the general form of government and the political process (these differ from country to country and it is important that citizens indeed view their country’s procedures as fair); and (b) the fundamental rights of citizens; equal basic rights and liberties including

60 “The criterion of reciprocity: our exercise of political power is proper only when we sincerely believe that the reasons we offer for our political action may reasonably be accepted by other citizens as a justification of those actions”. Rawls, Political Liberalism, xlvi. 61 Rawls, Political Liberalism, 217, 253. 62 Ibid., 227-230. 63 Ibid., xlviii-xlix and 6. 64 Ibid., 227. 65 Rawls, “Reply to Habermas”, 393.

119 liberty of conscience and freedom of association; the political rights of freedom of speech, voting and running for office; and some form of the principle of equal opportunity.66 Such essentials, insofar as they apply to all equally, must be determined solely in terms of those public values which liberal political conceptions and moral comprehensive doctrines are called on to affirm. Although persons may well continue to understand these essentials in terms of their comprehensive doctrines, persons must be willing and able to justify their decisions from within the standpoint of public reason alone.67

As Larmore notes, Rawls thinks that public reason should be limited to constitutional essentials and basic matters of social and economic justice and should not extend to other matters to which we often refer as “political” (for example, matters like tax legislation, laws regulating property, statutes protecting the environment, funds for museums and the arts etc.). 68 Rawls himself makes two suggestions as to why public reason should be limited in this way.69 His first suggestion is that public reason must be able to be realised in practice. This means that the restriction is needed because if the demands of public reason cannot be said to realistically apply, at the very least, to the fundamentals, they certainly cannot hold more broadly. His second suggestion is that it may not always be appropriate to limit other “political” matters when these matters do not directly concern fundamental matters. As long as agreement obtains on constitutional essentials and such essentials are visible in society’s basic institutions, then citizens might sometimes be correct to settle further issues (for example, the protection of the environment or funds for the arts) within a more particularist spirit.70

Also, public reason need not apply to the “background or social culture” of civil society in which members pursue their various reasonable comprehensive doctrines as members

66 Rawls, Political Liberalism, 227-228. 67 Ibid., 241-243. 68 Ibid., 215-216. 69 Ibid., 214-215. 70 Charles Larmore proposes an example which Rawls might have used, namely, the present system in the province of Quebec, which guarantees basic rights for all while also giving special protection and support to the use of the French language despite a sizable Anglophone minority. Larmore thus suggests that the more “communitarian” form of liberalism favoured by Charles Taylor in “The Politics of Recognition” is not obviously at odds with Rawls’ doctrine of public reason. See Larmore, “Public Reason”, 381, 392; and Taylor, “The Politics of Recognition”, 25-74.

120 of particular associations (churches, universities, professional groups, and so on).71 Within such associations, citizens may draw on “non-public reasons”. 72 At all times, however, it is non-negotiable that members of such associations retain their fundamental basic rights as outlined by the constitution.

As regards (C), then, the determination of the content of public reason, the first edition of Political Liberalism clearly requires an “exclusive view” of the ideal, one which excludes reference to comprehensive reasons. The “exclusive view” is appropriate for modern liberal democratic societies whose citizens already recognise the distinction between comprehensive and public reason. In such societies, non-public reasons should not be introduced into public reason. Rawls concedes that in societies which do not already make this distinction, the ideal of public reason could perhaps be furthered by an “inclusive view” which allows comprehensive reasons to be introduced.73 However, in modern liberal democratic societies, comprehensive reasoning only jeopardises the ideal.

However, the second edition of Political Liberalism and “The Idea of Public Reason Revisited” revise this view, supporting a “wide view of public reason” on the basis of “the proviso”. On such a view, reasonable comprehensive doctrines may be introduced in public reason at any time “on the proviso that” in due course, public reasons, given by a reasonable political conception, are presented sufficient to support whatever the comprehensive doctrines were introduced to support.74 As with stability, Rawls makes this change so as to permit a more “realistic” account of the content of public reason. Enlarging the limits of public reason recognises that the roots of democratic citizens’ allegiance to their political conceptions lie in their respective comprehensive doctrines,

71 Rawls, Political Liberalism, 13; and Rawls, “The Idea of Public Reason Revisited”, 576. 72 Rawls views non-public reasons as public within non-political limits. In other words, non-public reasons are public with respect to members of the civil associations which support them (social reason and domestic reason) but they are non-public with respect to political society and citizens generally. Rawls, Political Liberalism, 220. 73 In Political Liberalism, Rawls provides two examples of the “inclusive” view of the ideal of public reason in societies which are not yet well-ordered. The first is the case of the abolitionists’ movement who argued on religious grounds that the antebellum South’s institution of slavery was contrary to God’s law. The second is the case of Martin Luther King, who appealed to both religious and political values. Rawls suggests that both abolitionists and King could have seen their actions as the best pragmatic way to bring about a well-ordered and just society in which the ideal of public reason could eventually be honoured, and thus, that the use of comprehensive reasons was not unreasonable, since society itself did not yet distinguish between comprehensive and public reasons. Rawls, Political Liberalism, 249-250. 74 Rawls, Political Liberalism, li-lii.

121 both religious and nonreligious.75 The benefits of the mutual knowledge of citizens’ recognising one another’s reasonable comprehensive doctrines fosters the duty of civility and helps to foster the kind of society which the ideal exemplifies.

Thus, the content of public reason is not specified by only one political conception, but by a set of more basic political values which reasonable political liberal conceptions together endorse. “It is crucial that public reason is not specified by any one political conception of justice, certainly not justice as fairness alone”.76 Moreover, this set of political values, says Rawls, can change. The content of public reason – the principles, ideals and standards which may be appealed to – are those of a family of reasonable political conceptions and this family changes over time.77 However, the endorsement of the basic public values, embodied in a constitution, remains the minimal requirement which any reasonable public conception must satisfy. In this sense, while uniform agreement on the details of one public conception is not to be expected, Rawls does imply that consensus must be achieved on a set of more basic political values.78

The remarkable insight that “the content of public reason is not fixed, any more than it is defined by any one reasonable political conception”,79 is precisely at stake in the debate with Habermas who, as I suggested in the introduction to this chapter, proposes that agreement need not be limited solely to political values since it can be proven that agreement on the very nature of intersubjective practical reason is to be reasonably required of all participants in discussion. In other words, agreement on a comprehensive and general moral doctrine is to be demanded.

3.1.1.5 Rawls’ response: the criteria of political constructivism

I have argued that Rawls modifies his account of the content of the impartial standpoint. Recognising that the gross coercion required to enforce justice as fairness would render it unacceptable, Rawls now limits the content of reasonable agreement to a more basic

75 Rawls, “The Idea of Public Reason Revisited”, 592-593. 76 Rawls, Political Liberalism, lii-liii. 77 Rawls, Political Liberalism, 6; and Rawls, “The Idea of Public Reason Revisited”, 581-582. 78 Rawls, Political Liberalism, xlviii-xlix and 6. 79 Ibid., liii.

122 set of public values (embodied in a constitution) on which overlapping consensus can obtain. We are now in a position to indicate Rawls’ two responses to Habermas’ first criticism, which argued that the design features which the original position decision procedure incorporates – the representation of parties as rational egoists, the assimilation of basic rights to primary goods, and the veil of ignorance impartiality constraints – are not features of a universally, impartial standpoint.

First of all, Habermas does not recognise that the impartial standpoint is not exhausted by the design features of the original position but is also taken up by political constructivism with its conception of a political liberalism. Without the additional conceptual distinctions which we have just discussed, justice as fairness cannot be said to be appropriately impartial in the sense required by political constructivism. Under conditions of reasonable pluralism, the principles chosen in the original position would not be impartial were they not also presented as a political conception within a political liberalism. A political conception, as we have seen, is a “freestanding” view whose content is implicitly affirmed in the public political culture, and on whose constitutional essentials a reasonable overlapping consensus can obtain. This overlapping consensus is possible because citizens have achieved reflective equilibrium on either the same public conception or a family of reasonable political liberal conceptions, affirming them in a “wide view of public reason”. Impartiality demands that justice as fairness itself satisfy the criteria of political constructivism in a manner which generates uncoerced support. The claim that impartiality requires not only the rejection of comprehensive accounts of philosophical or moral truth but also the rejection of the possibility of determining a unique solution to the problem of political principles for the basic structure is, as Burton Dreben observes, “a totally radical view… that has never been said before in the history of philosophy”.80 We need not consider the details of Habermas’ position on each of the original position’s design features since it suffices to indicate that in Rawls’ later work these features do not exhaust the idea of an impartial standpoint. Indeed, this is the strategy which Rawls himself uses when he reminds Habermas that justice as fairness is presented as a political conception within a theory of political liberalism.81

80 Dreben, “On Rawls and Political Liberalism”, 319. 81 Rawls, “I. Two main differences”, in “Reply to Habermas”, 373-385.

123 Rawls’ second response reiterates that justice as fairness – as one possible public conception – does articulate the ideas which political constructivism implies (political liberalism, the Reasonable, the Rational and overlapping consensus). Justice as fairness does include the more basic public values that reasonable liberal political conceptions must endorse, and it thereby affirms only those constitutional essentials which can be expected to be the object of a reasonable overlapping consensus. Justice as fairness with its device of representation is thus a reasonable account of principles for political life.

3.1.2 Justification or mere acceptance?

Habermas argues, next, that by ruling out claims to the cognitive validity of his theory, Rawls’ theory depends, for its plausibility, on an appeal, via the concepts of overlapping consensus and the Reasonable, to mere patterns of acceptance and not to universal standards of justification.82 (i) Overlapping consensus plays an instrumental and functional role: it does not validate the theory, but rather indicates the theory’s functional utility, that is, its capacity to be peacefully institutionalised.83 (ii) In like manner, the Reasonable is not a predicate for the cognitive validity of moral and political judgments but rather a description of the reflective attitude of enlightened tolerance. 84 In Habermas’ terms, the assimilation of the question of validity to that of mere acceptance compromises the cognitive validity claim that a theory of justice is indeed entitled to claim. Rawls identifies merely de facto acceptance with cognitive validity, thereby dissolving the critical potential of justice for the social acceptance patterns.

In responding to Habermas’ take on overlapping consensus, Rawls distinguishes between three types of justification of the political conception and argues that the third offers a justification which goes beyond that of mere functional utility. Partial or pro- tanto justification is carried out in public reason alone by reference to an ordered set of political values (for example, justice as fairness) which provide reasonable answers to a wide range of political questions. However, without wide-spread support among citizens in civil society, pro-tanto justification cannot guarantee stability. Even if it

82 Habermas, “Reconciliation through the Public Use of Reason”, 50, and 59-67. 83 Ibid., 60-63. 84 Ibid., 63-67.

124 succeeds in reasonably accounting for the wide range of political questions, it may be overridden by the comprehensive doctrines of citizens when these latter, as individuals, tally up and articulate comprehensive with political values.

Full justification describes the justification which is carried out by an individual citizen in civil society who articulates and justifies a political conception in relation to their individual comprehensive doctrine. However, since an individual might consider the political conception fully justified, even if it is not accepted by other people, full justification alone is not sufficient to guarantee stability.

Public justification is, for Rawls, the type of justification which a theory should seek, namely, justification of the political conception by political society itself (in both public reason and civil society alike). This justification articulates the three ideas of a reasonable overlapping consensus, stability for the right reasons, and the liberal principle of legitimacy, which requires that political power be exercised in accordance with a constitution, whose essentials, all citizens, as free and equal, may reasonably be expected to endorse. Public justification occurs when all the reasonable members of political society individually justify the shared political conception (or one of a shared family of political conceptions) by embedding it into their various reasonable comprehensive views. Against Habermas, Rawls states that a public conception which is the object of a reasonable overlapping consensus, that is, one that is articulated in accordance with the liberal principle of legitimacy, is not merely functional. First, the commitment to fair terms of political cooperation (the Reasonable) is demanded of all comprehensive doctrines: this is what makes such comprehensive doctrines reasonable. Without such a commitment, justice as a virtue of institutions would not even be possible. Second, this commitment enables comprehensive doctrines to embed the political value of liberal legitimacy into their structure in some unspecified way. Third, insofar as the political conceptions which citizens come to affirm likewise affirm the principle of liberal legitimacy, a reasonable overlapping consensus on shared public values (the prioritisation of the basic liberties, and the affirmation of some form of equal opportunity principle allowing citizens to use their liberties) is to be expected.85 Fourth, social structures are not stabilised by a mere prudential compromise among contingent

85 Rawls, “Reply to Habermas”, 387 and 389.

125 interests (a modus vivendi), but are rather affirmed “as what citizens need for themselves and want for one another”. 86

As for Habermas’ claim that the Reasonable is not a predicate for the cognitive validity of moral and political judgments but rather a description of the tolerance of “reasonable disagreement”, Rawls basically agrees but does not see the problem. First, disagreement on public and political decisions is “reasonable” in reference to the political value of mutuality contained in the idea of political legitimacy. Second, legitimacy is here political and not comprehensive and must thus avoid comprehensive claims to truth or validity which have a regulative value for the whole of life. It is enough that individuals are prepared to accept certain forms of disagreement in their political life and to retain a shared commitment to constitutional essentials expressing the principle of political legitimacy.87

3.1.3 Individual liberty and popular sovereignty: a mutual or conflictual relation?

Both of Habermas’ above criticisms concern the “art of the possible” in a sense which the final criticism draws to the fore. The rights which the model of justice as fairness supports are not justified in a manner articulating the will of citizens themselves in actual practices of democratic will-formation or concrete expressions of popular sovereignty. Both criticisms express the concern that Rawls does not recognise that systems of private, individual rights cannot actually be justified without validation in democratic will-formation or expressions of popular sovereignty.

Implied by Habermas’ first criticism of the design features of the original position is the view that Rawls defends individual rights from within the liberal tradition of “natural law”, a tradition unable to articulate the justificatory link between the private, individual rights of the moderns and the popular sovereignty of the ancients. In contrast to the ancients, for whom the concept of law as the collective will of the people is compatible with the subjection of the individual to the authority of the community, the modern’s

86 Rawls, Political Liberalism, 146. 87 Rawls, “Reply to Habermas”, 394-395.

126 concept of law as the expression of natural individual rights (to free association, to property, to freedom of opinion and so on) is compatible with the subjection of collective expressions of popular sovereignty to the authority of the individual. The modern liberal tradition of “natural law” defends the priority of individual rights by reference to a fictive state of nature from which such rights are derived. Habermas certainly views Rawls’ constructivism as a “resumption of natural-law argumentation”,88 a theory “first developed in vacuo” which distinguishes itself from other natural-law arguments (as formulated in the liberalisms of Hobbes, Locke, Kant and Rousseau) only insofar as it explicitly requires, in a second stage, that an accommodating political culture be shown to actually exist, thereby ensuring that the theory is realisable.89 In this sense, Rawls does not actually recognise the sense in which the natural rights developed in vacuo are actually justified by the accommodating political culture, that is, by its validation in expressions of popular sovereignty.

The second criticism expresses the same concern, namely, that by viewing the “reasonable overlapping consensus” as an indication of the theory’s widespread acceptance, Rawls does not recognise the sense in which democratic will-formation or popular sovereignty actually justify the public conception.90

The third criticism states these concerns explicitly: Rawls does not recognise that the private, individual rights which he defends are indeed legitimated by their confirmation in democratic will-formation.91 Rawls accords liberal, individual basic rights undue primacy over the democratic principle which legitimises such rights, thereby failing to achieve his goal of harmonising both the liberties of the moderns (individual, private autonomy) and the liberty of the ancients (public and civic autonomy).92 Insofar as Rawls remains essentially a natural-law theorist, he does not require that citizens themselves legitimise the natural, liberal, individual rights his theory defends. Without such justification, individual rights impose illegitimate restrictions on the public will

88 Habermas, Between Facts and Norms, 57, see also 56-57 and 83-84. 89 Habermas, Between Facts and Norms, 57. For Rawls’ “two-stage exposition” of justice as fairness, see Political Liberalism, 37, 64-66, 133-134, 140-144. 90 See “The Return of Modern Natural Law and the “Impotence of the Ought”“, in Habermas, Between Facts and Norms, 56-66. 91 Habermas, “Reconciliation through the Public Use of Reason”, 50-51 and 67-73. 92 See Benjamin Constant, “Liberty of the Ancients Compared with that of the Moderns”, in Political Writings, trans. Biancamaria Fontana (Cambridge, MA.: Cambridge University Press, 1988), 307-328.

127 and can be said to constrain the liberty of subsequent generations. Habermas thus fears that, subject to such externally imposed restrictions, citizens: cannot reignite the radical democratic embers of the original position in the civic life of their society, for from their perspective all of the essential discourses of legitimation have already taken place within the theory; and they find the results of the theory already sedimented in the constitution.93

All three criticisms thus foreground Habermas’ belief that Rawls understands the “art of the possible” incorrectly. Insofar as Rawls defends individual rights by reference to the tradition of “natural-law argumentation”, whereby rights are derived from a fictive state of nature (presented in terms of the original position),94 the concern with the “art of the possible” intervenes only at a second stage which requires that such rights be tested against the culture itself to see whether there is evidence to suggest that the political culture is accommodating, that is, whether the theory is “practicable”.95 In this way, the two-stage account of the theory’s practicability supports liberal rights which have a priori features, thereby ascribing to the democratic process a merely functional role in guaranteeing social stability. 96 In contrast, Habermas believes that rights cannot even be justified in isolation of the political culture’s democratic will-formation. Concerns with the “art of the possible”, that is, with the actual practicability of the theory, cannot enter at a second stage but must inform the very determination of rights themselves. Habermas thus proposes that constitutional rule of law (with its system of individual private rights) is legitimate only when it is co-original with popular sovereignty (democratic will-formation). In other words, in Habermas’ “art of the possible”, theory construction and the conditions for its realisation are co-original, the one cannot succeed without the other. Merely de facto laws are to be distinguished from legitimate laws, those which refer to the collective public will. A legitimate constitutional democracy is realisable only insofar as its system of rights is willed by the sovereign public itself in what Habermas calls a “deliberative democracy”.

Now, Rawls provides two main responses. First, he denies that he is a natural-law theorist.

93 Habermas, “Reconciliation through the Public Use of Reason”, 69-70. 94 Habermas, Between Facts and Norms, 57, see also 56-57 and 83-84. 95 Habermas, “Reconciliation through the Public Use of Reason”, 120; see also Rawls, “The Domain of the Political and Overlapping Consensus”, 486. 96 Habermas, “Reconciliation through the Public Use of Reason”, 127-128.

128 Justice as fairness is a political conception of justice, and while of course a moral conception, it is not an instance of a natural law doctrine. It neither denies nor asserts any such view.97

Second, he notes that, as a political constructivist conception, “the liberties of the moderns do not impose the prior restrictions on the people’s constituent will as Habermas objects”. 98 This is because the second stage of theory exposition informs in complementary manner the content of the public conception laid out in the first stage. 99 Rawls makes two essential points regarding these stages and their role. The first point is that the second stage in theory construction does not simply test the practicability of the rights selected by the parties in the first stage (the original position). Rather, the existence of an accommodating political culture is necessary for these rights to be actually legitimate. This requirement is part of a constructivist approach to problem solving which requires that the public conception – or the constitutional essentials of a family of reasonable liberal public conceptions – also generate the uncoerced support of those subject to them (see Chapter 1.3 and 3.1.1.2 of this chapter). The rights outlined at the first stage are not legitimate until it can be seen that they would indeed generate uncoerced support. If the political culture is unable to accommodate the view outlined at the first stage then “it is not a satisfactory political conception of justice and it must be in some way revised”.100 Rawlsian rights are not to be “imposed” on the people’s constituent will but rather are formulated in accordance with the uncoerced allegiance of that will. In his “Reply to Habermas”, Rawls thus attempts to show how justice as fairness can be actually used by citizens themselves to judge their current institutions. He outlines how citizens might use the conception to view themselves, first, as delegates to a convention which decides upon the principles and rules of a constitution; next, as legislators enacting laws as the constitution and principles of justice require and permit; and finally, as judges interpreting the constitution and laws as members of the judiciary.101 Citizens who use justice as fairness can in this way come to uncoerced

97 Rawls, “Reply to Habermas”, 406. 98 Ibid., 406-407. 99 Ibid., 396. 100 Rawls, Political Liberalism, 141. 101 Rawls, “Reply to Habermas”, 397-398. Rawls calls this a “four-stage sequence” in which citizens begin with the original position where parties select principles, and then successively progress to seeing them as delegates of a constitutional convention, legislators enacting law and judges interpreting the constitution. The “two-stage exposition of justice as fairness” aims to add to the justification of the political constructivist conception by indicating how that conception satisfies the requirement that it generate uncoerced support, the four-stage sequence is intended to indicate how citizens who already accept justice as fairness can use it to affirm or critique existing institutions.

129 agreement with others, who likewise affirm the view or another reasonable public conception which supports those constitutional essentials incorporating the liberal principle of legitimacy and its criterion of reciprocity.

The second point is that the institutions under which citizens find themselves are not the work of a political philosopher – Rawls – who, as Habermas implies, institutionalises them in theory beyond citizens’ control. Rather, they are the work of past generations who pass them on to the citizenry growing up under them. The theory of justice as fairness provides a framework within which citizens might assess these historical institutions once such citizens come of age. Thus, Rawls argues that citizens can reignite the radical democratic embers of the original position in their civic life to affirm or criticise existing institutions in the domain of public reason.102 In justice as fairness… public and private autonomy are also co-original and of equal weight (to use Habermas’ terms), with neither externally imposed on the other.103

In this sense, the constitutional state (with its system of private, individual rights) must be mutually articulated with the democratic principle of popular sovereignty.

3.2 Rawls’ criticisms of deliberative democracy

While defending himself from Habermas, Rawls directs two criticisms of his own at Habermas’ alternative conception. First of all (3.2.1), Habermas’ position is a comprehensive doctrine. It seeks to offer an account of the truth and validity of judgments of both theoretical and practical reason, which makes it inappropriate as a public conception.104 Second (3.2.2), Habermas’ “device of representation” – the ideal discourse situation as part of his theory of communicative action – seeks to provide norms which are to govern both political and non-political life alike. It thereby differs

102 Ibid., 399-409. 103 Ibid., 412, 416-417. Stephane Courtois is thus correct when he argues that Habermas does not completely depart from the contractual liberal model and that Rawls supports a dualist concept of constitutional democracy which is not insensible to the requirements of deliberative democracy. See Stephane Courtois, “Droit et démocratie chez John Rawls et Jürgen Habermas: Foundationnalisme des droits ou démocratie deliberative?” Politique et Sociétés 22, no. 2 (2003): 103-124. For a rapprochement of Rawls and Habermas, one that argues that Rawls’ theory is dialogical, not monological, and that the role which Habermas’ version of cognitive validity and epistemic constraints plays is not dissimilar to the one Rawls ascribes to general, wide reflective equilibrium, see Christopher McMahon, “Why there is no issue between Habermas and Rawls”, The Journal of Philosophy 99, no.3 (2002): 111-129. 104 Rawls, “Reply to Habermas”, 373, 376-381.

130 from the original position device of representation, which asks after those norms which are appropriate for public institutions alone.

3.2.1 The discourse-theoretic approach: a comprehensive doctrine

Habermas’ theory of communicative action aims not only to give a general account of validity for practical reason in its various forms, namely, “pragmatic”, “ethical” and “moral”, but also to indicate how modern constitutional democracies have the capacity to determine the legitimate intersubjective limits of the pursuit of these different forms of reasoning by means of law. This is the explicit task of his 1992 book Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy.

3.2.1.1 Three forms of practical reason: the role of law

The question “what should I do?” can be posed from three different perspectives with their appropriate forms of reason, namely, pragmatic, ethical and moral, each producing a different illocutionary meaning of obligation.105 The pragmatic or purposive form is formulated from the perspective of an actor seeking suitable means for realising goals and preferences which are already given.106 The recommendations which the pragmatic form of reason generates equate to the “rules of skill and counsels of prudence” that, in Kant, take the semantic form of conditional imperatives.107 Pragmatic reasoning relates empirical knowledge to given preferences and ends, assessing the often uncertain consequences of alternative choices according to previously accepted maxims or decision rules and determining recommendations. The “ought” of pragmatic

105 Jürgen Habermas, Justification and Application: Remarks on Discourse Ethics, trans. Ciaran Cronin (Cambridge, MA: The MIT Press, 1993), 9; see also, 2 and 8-9. As Thomas McCarthy notes, Habermas has elaborated upon notions of “ethical-political” culture, identity and discourse since 1988 when he first presented an earlier version of “On the pragmatic, the ethical and the Moral Employments of Practical Reason” for the Howison Lecture at Berkeley (Habermas, Justification and Application, 1-17). Despite this consideration, McCarthy notes that Habermas has not dislodged rational agreement from the centre of his model. See McCarthy, “Legitimacy and Diversity: Dialectical Reflections on Analytical Distinctions”, 115. 106 Habermas, Justification and Application, 2-3; and Habermas, Between Facts and Norms, 159-160. 107 Kant, “Critique of Practical Reason”, 5:20.

131 recommendations is tailored to the arbitrary choice, contingent attitudes and preferences of a subject.108

Once the pre-given goals and preferences for whose realisation means are sought are problematised, the question “what should I do?” points beyond the horizon of purposive rationality.109 At stake is the very determination of the goals and preferences which are to be achieved through purposive rationality. The ethical form of practical reason is formulated from the perspective of an actor or a group of actors seeking to clarify the values which they wish to pursue individually and collectively.110 The imperative sense of this clinical advice is an “ought”, unconditional for us but not necessarily for all others: it no longer depends on subjective ends or preferences but rather is tailored to the resoluteness of an individual who has committed him or herself to an authentic life.111

When my actions affect the interests of others and lead to conflicts which are to be regulated in an impartial manner, the question “what should I do” undergoes further transformation, pointing beyond the horizons of both the pragmatic and the ethical.112 At stake is a shift from the perspective of an agent with his or her own preferences and goals to an intersubjective perspective. The moral form of practical reason is formulated from what Habermas thinks is a fully intersubjective point of view, that is, a viewpoint which has shifted beyond one’s own (pragmatic or ethical) perspective to include, in principle, all viewpoints. Moral commands are equivalent to Kant’s categorical, unconditional imperatives in that they are to apply to all wills. However, as we saw in

108 The pragmatic form thus reformulates what in Chapter 2 we saw Habermas describe as purposive action (see Chapter 2.1.3). 109 Habermas, Justification and Application, 4-6; and Habermas, Between Facts and Norms, 160-161. 110 Although implied at times in The Theory of Communicative Action, and, as Thomas McCarthy indicates, in Moral Consciousness and Communicative Action (177-178), the “ethical” is introduced explicitly, in its relations to purposive-pragmatic and moral discourse, only in Justification and Application onwards. McCarthy, “Practical Discourse: On the Relation of Morality to Politics”, 186 and 242, n.9. As indicated earlier, this new distinction has implications for Habermas’ conception of law, which must permit its interpretation from each perspective of practical reason. 111 Habermas uncovers the ethical form of reasoning not in Kant but rather in Aristotle and Hegel, revived by Charles Taylor and Alisdair McIntyre. “Since Aristotle, important value decisions have been regarded as clinical questions of the good life. A decision based on illusions – attaching oneself to the wrong partner or choosing the wrong career – can lead to a failed life. The exercise of practical reason directed in this sense to the good and not merely to the possible and expedient belongs, following classical usage, to the sphere of ethics”. Habermas, Justification and Application, 4. 112 Habermas, Justification and Application, 6-8.

132 Chapter 2, Habermas now determines this imperative intersubjectively (and not monologically): the moral viewpoint demands the satisfaction of the procedural criteria (U) for the uncoerced, intersubjective determination of the “generalised interest”.113

It should be no surprise to learn that Habermas analyses the legal system of the modern constitutional state in terms of both the functional and cognitive roles which it plays for the production and reproduction of action-coordinating norms. Such norms enable social action which can be either strategic and purposive (pragmatic), or ethical, or moral in orientation.114 On the one hand, as concerns the constitutional state’s functional role, Habermas argues that the legal medium promises to provide an intersubjective resource for action-coordination and social integration in societies whose structures have become so complex and diversified that they are no longer able to be understood by participants themselves as also valid. With social complexity, zones of overlapping lifeworlds and background assumptions shrink. Moreover, processes of social differentiation necessitate a multiplication and variation of functionally specified tasks, social roles and interest positions which enlarges the functionally necessary sphere of purposive action.115 Communicative, consensually oriented, action is overtaxed in modern, pluralised societies and can no longer functionally sustain mutually recognised – that is, valid – terms for social integration. Modern law resolves this problem: it fulfils the functional role of providing impartial terms for the regulation of pragmatic, ethical and communicative interactions.

On the other hand, as regards the constitutional state’s cognitive role, if law is to successfully replace shared lifeworld certainties which once united facticity and validity in intersubjectively recognised claims, it must likewise permit the possibility of intersubjectively recognised normative validity claims.116

113 See Chapter 2.2 for Habermas’ intersubjective interpretation of Kant’s categorical imperative. 114 As I explained in Chapter 2.1.3, social action can be either purposive (strategic) or oriented towards mutual understanding (communicative). Now we must add that it can also be “ethical”. Whereas in strategic action an actor seeks to influence the interaction with another by the threat of sanctions or the prospect of gratification, in communicative action an actor seeks to rationally motivate another to participate in interaction, thus depending on the reciprocal and mutual understanding of communicative acts. Habermas, Moral Consciousness and Communicative Action, 58. As for ethical action, actors seek to convince each other that a certain orientation or practice is “good for us”. Habermas, Between Facts and Norms, 161. 115 Habermas, Between Facts and Norms, chapter 1.2. 116 Ibid., 26-27.

133

3.2.1.2 De facto versus legitimate law

Law must display two components. First, it displays de facto validity in the sense that it guarantees the legality of behaviour, by sanctioning certain functional norms of action and thereby stabilising the expectations of different actors allowing them to coordinate their behaviour. Law thereby permits the aforementioned strategic interaction which sustains market economies insofar as it allows strategic actors to adapt their behaviour according to the expectation that different actors will act in conformity. Second, and more importantly, law must in principle permit at least the possibility of mutual recognition on the part of participants, that is, it must be rationally acceptable or legitimate. Legislation must at least conform to the moral requirement that norms of social integration be acceptable to those subject to them, as specified by the discourse procedure (D). Insofar as it is coercive, the legal medium must in principle ground its control of action in a consensual way.117

However, a claim to the legitimacy of legal norms is not equivalent to a claim to the moral validity of action norms. Claims to legitimacy and to moral validity both refer to the discourse principle (D), which secures the impartiality of the outcome of discourse, but they do so in a different way.118 This is because the behavioural norms to which law applies includes both purposive (pragmatic) action and ethical action (which both begin from the individual perspective), and not simply moral action (which requires the intersubjective perspective and thus the determination of the “generalised” interest). In cases where participants in argumentation refuse to take on the moral perspective or if it appears that no clearly generalisable interest can be identified, argument switches to bargaining which is still subject to the discourse principle (D) but in an indirect way.119 Since bargaining power does not derive from “the power of the better argument” but from material resources, threats, promises and the like, the discourse principle, which is supposed to secure an uncoerced consensus, “can thus be brought to bear only

117 Ibid., chapter 1.3. 118 Habermas thus concedes that up until now he has not sufficiently distinguished the moral principle (U) from the discourse principle (D). (D) is only intended to explain the point of view from which norms of action can be impartially justified but does not demand the determination of the “generalised interest” on the basis of mutually affirmed reasons as does morality. 119 Habermas, Between Facts and Norms, 165-168, 76-183, 191-192, 282-283 and 338-341.

134 indirectly, through procedures that regulate bargaining from the standpoint of fairness”.120 This means that the negotiation of compromises should follow procedures which provide all interested parties with an equal opportunity to influence one another during the bargaining such that all affected interests come into play and have equal chances of prevailing. “To the extent that these conditions are met, there are grounds for presuming that negotiated agreements are fair”.121 Insofar as compromises come about under fair bargaining conditions, they must be acceptable in principle to all parties, even if on the basis of respectively different reasons. As for the ethical decisions of communities, decisive reasons must be acceptable to all members sharing “our” traditions and strong evaluations.122 In each case, (D) requires that all affected take part and approve of the final outcome.

Thus, (D), when employed with respect to legal norms, does not demand the satisfaction of the principle of universalisation (U), which requires the determination of the generalised interest.123 Rather, (D), now employed uniquely with respect to legal norms (and thus to pragmatic, ethical and moral orientations), demands only that “statutes can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted”. Habermas calls this the “democratic principle”. The democratic principle requires the legal constitution of discursive processes of legislation which include, in principle, all citizens. It is only participation in the practice of politically autonomous lawmaking that makes it possible for addressees of the law to have a correct understanding of the legal order as created by themselves. Legitimate law is compatible only with a mode of legal coercion that does not destroy the rational motives for obeying the law.124

120 Ibid., 166. 121 Ibid., 167. More specifically, bargaining aims to secure a compromise that all participants will find acceptable. The arrangement must satisfy three conditions. It must: (a) be more advantageous to all than no arrangement whatever; (b) exclude free riders, who withdraw from cooperation, and (c) exclude exploited parties, who contribute more to the cooperative effort than they gain from it. 122 Ibid., 108. 123 (U) states that “all affected can freely accept the consequences and the side-effects that the general observance of a controversial norm can be expected to have for the satisfaction of interests of each individual”. Habermas, Moral Consciousness and Communicative Action, 93. See also Chapter 2.2 of this thesis. 124 Habermas, Between Facts and Norms, 121.

135 Habermas thus argues that the satisfaction of such a principle resolves the constitutional state (with its system of individual, private rights) with that of popular sovereignty (that is, the idea of self-legislation by citizens themselves).125

Habermas believes that he thereby achieves the practical intent of Kant’s account of law by correcting the latter’s version of the priority of private right over popular sovereignty. Kant, like Rawls, errs on account of “natural-law argumentation” whereby “natural private rights” precede the will of the sovereign lawgiver. Kant accords priority to individual rights because he believes that the rational will takes shape in the individual subject, not in processes of intersubjective discourse as Habermas maintains. Kant effectively secures the private autonomy of each individual in advance of the principle of popular sovereignty itself insofar as a system of natural private rights belongs “inalienably” to each human being, legitimated on the basis of moral principles and thus independent of the political and public autonomy of citizens.126 By indicating the manner in which the public procedure (D) is to determine the system of rights, Habermas believes that he resolves this separation. In the discourse-theoretical approach to law, democratic self-determination and private individual rights are co-original. The substance of human rights… resides in the formal conditions for the legal institutionalisation of those discursive processes of opinion- and will-formation in which the sovereignty of the people assumes a binding character.127

The system of rights states the procedural conditions under which the forms of communication necessary for the genesis of legitimate law can be legally institutionalised.

3.2.1.3 A comprehensive version of legitimacy

When Rawls states that Habermas’ discourse-theoretic account of legitimacy is comprehensive and general, he means that the account applies to both political and non- political life alike and to all language users whatsoever, whatever the nature of their society may be. First, the account of the rational preconditions of discourse and

125 Ibid., chapter 3.3. 126 Ibid., chapter 3.1, in particular, 3.1.4. I have already explained that Rawls responds by denying that he is a natural-law thinker in this sense. It is worth mentioning that there are Kantian commentators who do not share Habermas’ interpretation of Kant as ascribing priority to natural private rights over popular sovereignty. Such a question is beyond the scope of this thesis. 127 Ibid., 104.

136 communicative action are those to which participants in any kind of communicative action whatsoever are required to agree, due to the simple fact that such agreement is already implied by their participation. In this sense, Habermas’ justification is comprehensive: it claims to determine those structures which are presupposed in all communicative life, both political and non-political alike.

Second, the account of those procedures which are to guarantee the rational determination of substantive legal questions can be said to apply to all societies insofar as their members take part in forms of argumentation or bargaining, thereby implicitly agreeing to its procedural conditions.

Rawls doubts that under conditions of reasonable pluralism a comprehensive and general view like the one Habermas supports can ever serve as the object of an uncoerced consensus among citizens. The view is thus not limited to the political in the required sense; political philosophy need neither deny nor affirm such doctrines since its content is to be determined uniquely by those values which can generate the uncoerced support of those subject to it. These are values which are affirmed in general, wide reflective equilibrium, that is, values which citizens affirm in common when each has followed through the process of seeking principles for their own judgments of justice and for those of others to whom the principles are also to apply.

In the “Idea of Public Reason Revisited”, Rawls states that political liberalism, of course, admits Habermas’ discourse conception of legitimacy.128 This is because someone affirming discourse ethics can achieve overlapping consensus with other comprehensive views on a family of political values. However, Rawls thinks that it is not reasonable to require everyone to agree to discourse ethics as the comprehensive basis of their affirmation of political values. In this sense, discourse ethics cannot be privileged over, say, a Catholic view of the common good when this is expressed in terms of political values.129

128 Rawls, “The Idea of Public Reason Revisited”, 582-583. 129 Ibid., 582-583.

137 3.2.2 The “ideal speech situation”: for political and non-political life

The second difference concerns the two analytical devices of representation – Habermas’ ideal speech situation and Rawls’ original position. Rawls explains that the ideal speech situation is part of Habermas’ theory of communicative action and its role is to offer an account of the truth and validity of judgments of both theoretical and practical reason, laying out completely the presuppositions of rational and free discussion, as guided by the strongest reasons, such that, if all requisite conditions were actually realised and fully honoured by all active participants, their rational consensus would serve as a warrant for truth and validity.130

Rawls argues that the persuasiveness of the two analytical devices of representation is to be determined, not by the philosopher expert, but rather, by citizens in civil society: all discussions are from the point of view of citizens in the culture of civil society, which Habermas calls the public sphere, and which we have seen Rawls call the “background culture”. Since citizens are not, here, discussing political questions, but determining how to include the liberal principle of legitimacy into their own comprehensive doctrine, they need not refer merely to those values which they think others can accept. It is in the culture of daily life, with its many associations, that citizens themselves determine how they might be able to insert a political conception into their doctrine. Their reasons need not satisfy the duty of civility. Only in public reason does this duty apply.131 For the purposes of justice, it is permissible to leave citizens to justify a political conception in their own terms and to require only that the duty of civility apply to the domain of public reason, that is, the reason of legislators, executives (presidents, for example) and judges (especially those of a supreme court), including the reason of candidates in political elections, party leaders, and citizens when they vote on constitutional essentials. Rawls does not think that his own ideal of public reason is consistent with Habermas’ view since it would mean that a discourse-theoretical version

130 It is worth noting that Habermas no longer uses the term “ideal speech situation”. This is because the expression suggests an ideal to be approximated rather than a counterfactual assumption one makes when entering discourse. Habermas, Between Facts and Norms, 322-323. This change does not affect Rawls’ above criticism, which can still be said to apply to Habermas’ account of the requisite conditions of “rational argumentation”. 131 Rawls, “Reply to Habermas”, 382.

138 of rationality could not be affirmed as the necessary ground of moral validity and political legitimacy. 132

3.3 United: the “art of the possible”

Rawls claims that the only sort of agreement which can reasonably be expected is one which is limited to common political values and, more specifically, constitutional essentials, where these values are embedded in different and unspecified ways into the particular moral, philosophical or religious comprehensive doctrines which individuals and groups may have.

In contrast, Habermas thinks that agreement, when limited to the actual in this sense, surrenders the cognitive validity claim which a theory of justice is entitled to claim. Rawls defends merely contingent patterns of acceptance and does not appeal to universal standards of justification. Instead, Habermas argues that agreement on the universal conditions of argumentation is both possible and necessary. These conditions justify, in universal terms, the procedural account of the public use of reason which Habermas defends.133

Despite these differences, I hope to have demonstrated that both philosophers unite by assuming the possibility of objectively interpreting, and actually realising, Kant’s ideal of an impartial standpoint among autonomous moral persons. Their debate, I have argued, concerns the details of the correct interpretation. I have now laid the groundwork for the first stage of my argument, namely, the identification of the central difference between constructive and reconstructive justice, on the one hand, and deconstructive justice, on the other. Both Rawls and Habermas subscribe to the “art of the possible”, affirming that the practical intent of Kant’s practical philosophy can be realised in practices of rational discourse and decision. In the coming chapter, I will contrast this optimism with Levinas’ account of the non-equivalence of ethical obligation and the value of impartiality. I will then argue that Derrida gets the balance right, emphasising the undecidability of the critical function of justice.

132 Ibid., 382. 133 Habermas, “Reconciliation through the Public Use of Reason”, 72-73.

139

It is noteworthy that Rawls needed to make some substantial changes to his original theory in order to subject it to the constructivist requirement that it generate its own uncoerced support. In so doing, Rawls also recognises that the content of public reason changes over time and that any constructivist theory must adjust to this change. We saw him insist that public reason is not specified by any one political conception of justice (“and certainly not justice as fairness” 134) but by those shared political values that can generate uncoerced support. Habermas, too, acknowledges that moral validity or legitimacy claims can be contested at any time. These insights will be important to the second stage of this thesis, developed in Chapters 6 and 7. Rawls and Habermas, I will argue, come to affirm some of the difficulties involved in determining the content of the impartial standpoint. They do not, however, fully recognise the implications for their account. Faith with respect to the possibility of justice needs to be complemented by the acknowledgment of the impossibility of exhaustively determining the content of justice. Original position outcomes are necessarily revisable, and consensual decisions are to remain open, in principle, to their contestation. In both its deliberative and constructivist versions, justice, I will argue, remains structurally “to come” in the Derridean sense.

134 Rawls, Political Liberalism, lii-liii.

140 Chapter Four

Levinas’ Kant: The Irreducibility of Ethical Responsibility to Impartial Procedure

Charity is impossible without justice and justice is warped without charity. Levinas, “Philosophy, Justice and Love”, 121.

I have argued that both Rawls and Habermas intend their respective theories of political impartiality to interpret the practical intent of Kant’s moral standpoint, thereby providing a critical point of view from which to assess political institutions, decisions and legislation. Rawls’ political constructivist account of impartiality is to cohere with those public values which persons committed to the fairness of their public institutions endorse. The rational and universal procedures which Habermas’ discourse-theoretical interpretation advances are meant to guarantee that moral and legal norms meet, or are able to meet, with the approval of all affected in their capacity as participants in argumentation. Both men believe that Kant’s moral standpoint can be realised in practices of rational discourse and decision.

In contrast to this optimism, Levinas’ own writings support the view that the value of impartiality between persons cannot satisfy what Levinas takes to be the dissimulated practical intent of Kant’s moral principle, namely, ethical responsibility for the fate of the other person (the Other) who shares the world with me, “responsib[ility] over and beyond one’s freedom”.1 Ethical responsibility for the other person in the particular is not equivalent to the notion of impartiality which Rawls and Habermas believe Kant’s moral standpoint implies. Levinas will suggest that the “essential content” of morality or justice “cannot be summarised like a credo, nor restricted to the negative and formal

1 Levinas, Otherwise Than Being, 122.

141 statement of a categorical imperative”.2 The impartial standpoint thus fails to fulfil the demands of ethical responsibility and, as such, can be said to abandon its critical function. In this sense, Levinas tends to emphasise the impossibility of conceptually uniting ethical responsibility, on the one hand, and procedural or substantive determinations of the impartial standpoint, on the other.3

This chapter will present Levinas’ alternative account of the practical intent of Kant’s moral principle, explaining the implications of this account for social justice. First (4.1), I will explain Levinas’ reading of Kant’s account of “moral feeling”, contrasting his interpretation with Habermas’ take on the same concept (see Chapter 2.1.2). Dissimulated in Kant’s account of moral interest, Levinas discovers an account of ethical responsibility for the particular other person, a non-formal responsibility which does not equate to its formalisation in terms of the categorical imperative procedure. Next (4.2), I will explain why Levinas believes ethical responsibility for more than one Other nonetheless demands the commitment to justice, which requires the comparison of incomparable, non-formal responsibilities.4 Finally (4.3), I will argue that Levinas tends to place the emphasis on the impossibility of determining the content of a justice which would satisfy its ethical responsibilities, and this is why he suggests that justice’s failure must be compensated in some way by charity. Although there are reasons why Levinas might wish to emphasise the impossibility of realising ethics in justice and,

2 Emmanuel Levinas, “Judaism and the Present”, in Difficult Freedom: Essays on Judaism, trans. Seán Hand (London: The Athlone Press, 1990), 208-216 at 213. 3 Careful readers of Levinas would be correct to suggest that in his later work exists a tendency to emphasise undecidability rather than impossibility and, in this sense, coincides with Derrida’s approach to ethics and justice. See Diane Perpich, “A Singular Justice: Ethics and Politics between Levinas and Derrida”, Philosophy Today 42 (1998): 59-70 at 65; and also Simon Critchley, The Ethics of Deconstruction: Derrida and Levinas (Indiana: Purdue University Press, 1999). I do agree that Levinas’ later work (in particular Otherwise than Being, originally published in 1974) emphasises both possibility and impossibility, indicating, on the one hand, that ethics is betrayed by lawful procedure and substantive determinations (since such determinations cannot respond to all particular interests, needs and demands), but also, on the other hand, that ethics requires such procedures and determinations (since they provide ways for negotiating ethical obligations to conflicting interests, needs and demands). In this sense, Levinas’ later work does on occasion emphasise undecidability rather than impossibility. However, I will argue that Levinas is consistently more concerned to emphasise impossibility and, in this sense, continues to pursue the preoccupation of his earlier work. There is no doubt that Totality and Infinity, originally published in 1961 (trans. Alphonso Lingis (Pittsburgh, PA: Duquesne University Press, 1969)) engages the language of purity (the ethical relation is presented as the singularity of the face-to-face) and this presentation of ethics means that any determination involves betrayal. 4 Emmanuel Levinas, “The Rights of Man and the Rights of the Other”, in Outside the Subject, trans. Michael Smith (London: The Athlone Press, 1993), 116-125 at 123; and Emmanuel Levinas, “The Other, Utopia and Justice”, in Entre Nous: On Thinking-of-the Other, trans. Michael Smith and Barbara Harshav (London: The Athlone Press, 1998), 223-234 at 229-230.

142 moreover, the impossibility of ever realising ethics itself, such emphasis on impossibility is unsatisfying because it does not allow us to state that certain determined forms of justice and charity are better than others. I will preface the move to Chapter 5 by suggesting that Derrida gets the balance right by emphasising the possibility and impossibility of justice, identifying the undecidability of justice’s function.

It is worth noting that I am still pursuing the first stage of my argument. That is, by reconstructing each philosopher’s respective account of justice as it develops in confrontation with Kant’s practical philosophy, I am drawing attention to the central difference between the approaches. However, this examination already goes some way to opposing the prevailing view that the gap between the constructive and deconstructive traditions is unbridgeable. By reflecting on the different ways in which each tradition draws on Kant’s practical philosophy, I can already indicate that there are genuine possibilities for their productive engagement. I will add to this claim in the second stage of my argument, suggesting that the two traditions are complementary.

I demonstrated, in Chapters 1, 2 and 3, that Rawls and Habermas argue for the possibility of objectively determining the content of Kant’s ideas of autonomy and impartiality. In this chapter and the next, I will consider Levinas’ and Derrida’s interpretations of Kant. I will argue that Levinas emphasises the non-equivalence of non-formal ethical responsibility for another particular person, on the one hand, and the ideal of impartiality, on the other. I will then demonstrate, in Chapter 5, that Derrida argues for the essential perfectibility of justice, thereby distinguishing himself not only from Rawls and Habermas but also from Levinas.

4.1 “Taking on the fate of the Other”:5 a non- formal conception of ethics

Levinas’ entire body of work can be understood as a defence of non-formal ethical obligation. This defence draws on Kant’s moral and political philosophy, consistently employing certain Kantian ideas and consistently rejecting others. On the one hand,

5 Emmanuel Levinas, “Philosophy, Justice and Love”, in Entre Nous: On Thinking-of-the Other, trans. Michael Smith and Barbara Harshav (London: The Athlone Press, 1998), 102-122 at 103.

143 Levinas believes that Kant’s account of the moral duty correctly identifies the fundamental ethical experience, namely, obligation for the fate of Others. Levinas thus writes that his own ethics “seems suggested by the practical philosophy of Kant, to which I feel particularly close”.6 On the other hand, Levinas does not think that Kant recognises the radicality of this obligation and the irreducibility of this obligation to the procedural account of the categorical imperative.7

Four central ideas can be identified in Levinas’ references to the experience of obligation in Kant’s moral philosophy. First (4.1.1), the notion of ethical obligation is developed by reference to Kant’s concept of pure reason as “disinterested”. Levinas explains that, alone, human reason is “self-interested”, materially possessing the world which affects it. Ethical obligation is, in Kantian terms, “disinterested”: in the experience of obligation, self-interest is disrupted by the encounter with an Other who cannot be possessed and who calls into question the self’s possession of the world. For finite, human reason, interest is irreducible and, thus, Levinas expresses ethical interest as “dis-interest”. Second (4.1.2), Levinas’ notion of ethical obligation also draws on Kant’s idea of the priority of the practical interest in accordance with necessity over the theoretical interest in cognition. Using Kant’s vocabulary, the condition for the possibility of ethical action is the practical presupposition of the existence of an object – the Other – which is problematic for reason in its theoretical use, that is, which cannot be reduced to comprehension or cognition.8 Moreover (4.1.3), the notion of ethical obligation which Levinas discovers in Kant’s presentation of moral duty is presented, finally, in opposition to Kant’s formalisation of this duty in terms of the categorical imperative procedure. Ethical obligation is an originally non-formal necessity which is not equivalent to its formalisation by Kant’s categorical imperative procedure, Habermas’ universalisation principle (U) or Rawls’ original position decision procedure. Finally (4.1.4), non-formal obligation lends itself to a pragmatics which does

6 Emmanuel Levinas, “Is Ontology Fundamental?” trans. Peter Atterton, Simon Critchley and Graham Noctor, in Emmanuel Levinas: Basic Philosophical Writings, ed. Adriaan T. Peperzak, Simon Critchley and Robert Bernasconi (Bloomington: Indiana University Press, 1996), 1-10 at 10. 7 As per the chapter on Habermas, this chapter deals primarily with Levinas’ references to Kant’s moral and political philosophy and not to Kant’s theoretical conception of knowledge. 8 Emmanuel Levinas, “The Primacy of Pure Practical Reason”, trans. Blake Billings, Man and World 27 (1994): 445-453 at 450. See also Emmanuel Levinas, “The Radical Question: Kant Against Heidegger”, in God, Death and Time, trans. Bettina Bergo (Stanford: Stanford University Press, 2000), 57-61 at 59- 60.

144 not equate to Kantian pragmatics: the pragmatic position of the subject of the prescriptive – the you (or tu) – is not equivalent to the pragmatic spontaneity of the Kantian I (or je) who formulates the descriptive, denotative content of the obligation. In Chapter 6, pursuing the second stage of my argument, I will suggest that Levinas’ argument for the non-equivalence of ethics and impartiality is ultimately unsatisfying. The emphasis on the impossibility of justice needs to be supplemented by “reasonable faith”, as Rawls puts it, “in the possibility of a just constitutional regime”.9 However, before pursing this argument, I need to identify, first, the central difference between the two types of theory. Only when their difference has been clearly demarcated can I then argue for their complementarity.

4.1.1 Obligation as dis-interest: the disruption of self- interest

Levinas’ references to Kant’s practical philosophy support the view that the incomprehensibility of “moral feeling” is, indeed, morally relevant. 10 This view contrasts sharply with Habermas’ interpretation of this same concept (Chapter 2.1.2).

In the incomprehensibility of Kant’s concept of “moral feeling”, Habermas sees a contradiction to be avoided. “Moral interest” cannot be included without contradiction in the Kantian system. On the one hand, “moral interest” guarantees that the moral law is practically effective. Rational causality must be able to affect the senses in order to become practical, and thus Kant affirms that reason produces a “pure interest” in the empirical faculty of desire which determines the will to action. Human beings must actually want to act on the moral law. On the other hand, moral feeling cannot be empirical since free moral action would be not be free, as such, were it pre-determined by an empirical law of nature. Habermas concludes that, within the confines of the

9 Rawls, Political Liberalism, 172, emphasis added. 10 The interpretation that Levinas here presents of Kant is developed in the early 1970’s in the following texts: Levinas, “The Primacy of Pure Practical Reason”; Levinas, “The Radical Question: Kant Against Heidegger”; Emmanuel Levinas, “A Reading of Kant”, in God, Death and Time, trans. Bettina Bergo (Stanford: Stanford University Press, 2000), 62-65; Emmanuel Levinas, “How to Think Nothingness?”, in God, Death and Time, trans. Bettina Bergo (Stanford: Stanford University Press, 2000), 66-71; Emmanuel Levinas, “Kant and the Transcendental Ideal”, in God, Death and Time, trans. Bettina Bergo (Stanford: Stanford University Press, 2000), 153-156; and Emmanuel Levinas, “The Ethical Relationship as a Departure from Ontology”, in God, Death and Time, trans. Bettina Bergo (Stanford: Stanford University Press, 2000), 180-184.

145 Kantian system, the very idea of a non-empirical yet experiential genesis of reason effectively designates an experience (moral feeling) as both empirical and rational, a contradiction which Kant cannot resolve. Habermas believes that the problem occurs because Kant’s rigorous distinction between empirical interest and rational moral decision cannot be maintained. He believes he can resolve the problem by shifting the analysis from subjective, private reason and to intersubjective structures of reason, thereby analysing a practical reason which is already empirical. This analysis, he claims, successfully unites the subjective perspective with an intersubjective observer perspective, thereby guaranteeing the objectivity of the analyses.

In contrast, Levinas does not believe that the analyses of moral interaction enabled by the observer perspective are able to describe the essential characteristic of the ethical experience which, from the “participant” perspective, Kant designates as “moral interest”.11 I suggest that Levinas takes the incomprehensibility of moral feeling to be morally relevant. At once rational and empirical (and thus incomprehensible), moral feeling attests to an experience which cannot be reduced to one’s own comprehension. It is for this reason that Kant acknowledges that the “moral interest” produces a priori “a feeling that can be called pain”.12

For Levinas, Kant’s account of interest contains two major insights relevant to ethical obligation. First, focussing on the role of sensibility in Kant’s account of experience, Levinas claims that reason is always interested: it is material and sensibly affected. Second, ethical obligation is the disruption of material self-interest by the encounter with an Other person. Since interest is irreducible, ethical reason is interest in the Other’s interests, which Levinas also refers to as “disinterested interest” or “dis- interest”.13 I will look at each point in turn.

First, then, Levinas believes that one of Kant’s major strengths is his presentation of the self as finite, material and interested before being able to objectify this interest. A divine

11 See Chapter 6.1 for a critique of Habermas’ analyses of moral interaction from a Levinasian perspective. 12 Kant, “Critique of Practical Reason”, 5:73. 13 Emmanuel Levinas. “Essence and Disinterestedness”, trans. Alphonso Lingis, in Emmanuel Levinas: Basic Philosophical Writings, ed. Adriaan T. Peperzak, Simon Critchley and Robert Bernasconi (Bloomington: Indiana University Press, 1996), 109-128.

146 being would be “disinterested”, in complete accord with both the laws of nature and the law of practical reason.14 Human reason, however, is material and thus interested. Levinas thus writes “In the beginning was the interest”.15 Levinas believes that this interest plays a privileged role in Kant’s account of experience. Objective experience is, in Kant, conditioned and “personalised” by the human faculties, that is, by the faculty of sensibility, with its pure forms of space and time, and by the faculty of the understanding, with its pure categories. Experience, in Kant, is thus always determined: experience is always of objects, determined according to the pure forms of intuition and the categories. Indeed, for Kant, there is no experience which is not of objects. Levinas discovers, in Kant, a presentation of sensibility which cannot be described as Kantian, namely, a sensibility whose material affectivity is not immediately objective. This sensibility is the capacity to be sensibly affected by an “impersonal” existing, the il y a (or “there is”), which “resists a personal form”.16 Sensibility is originally a non- objective access.17 He thus writes: The strength of Kantian philosophy of the sensible consists in separating sensibility and understanding, in affirming… the independence of the “matter” of cognition with regard to the synthetic power of representation. 18

14 On the “disinterested” nature of divine reason, Kant writes, “Now, if by incentive is understood the subjective determining ground of the will of a being whose reason does not by its nature necessarily conform with the objective law, then it will follow: first, that no incentives at all can be attributed to the divine will but that the incentive of the human will (and of the will of every created rational being) can never be other than the moral law”. Kant, “Critique of Practical Reason”, 5:72. “All three concepts, however – that of an incentive, of an interest, and of a maxim – can be applied only to finite beings. For they all presuppose a limitation of the nature of a being, in that the subjective constitution of its choice does not of itself accord with the objective law of a practical reason; they presuppose a need to be impelled to activity by something because an internal obstacle is opposed to it. Thus they cannot be applied to the divine will”. Kant, “Critique of Practical Reason”, 5:79. “Respect for the law cannot be attributed to a supreme being in whom sensibility is no obstacle to practical reason”. Kant, “Critique of Practical Reason”, 5:76. 15 Levinas, “The Primacy of Pure Practical Reason”, 451. 16 Emmanuel Levinas, Existence and Existents, trans. Alphonso Lingis [ (Dordrecht: Kluwer Academic Publishers, 1978), 52. As Derrida and John Caputo both remark, the impersonal il y a (“there is”) is not equivalent to Heidegger’s es gibt. Il y a expresses, to use Jacques Rolland’s words, “the impossibility of being what one is”, whereas es gibt gives itself to the self in generosity. See Jacques Derrida, “Violence and Metaphysics”, in Writing and Difference, trans. Alan Bass (London: Routledge and Kegan Paul, 1978), 70-153 at 131-151; John Caputo, Deconstruction in a Nutshell (New York: Fordham University Press, 1997), 94-95; and Jacques Rolland, “Getting Out of Being by a New Path”, in Emmanuel Levinas, On Escape: De l’évasion, trans. Bettina Bergo (Stanford: Stanford University Press, 2003), 3-48 at 34. 17 See in particular Emmanuel Levinas, Time and the Other, trans. Richard Cohen (Pittsburgh, PA: Duquesne University Press, 1987), part 1. 18 Levinas, Totality and Infinity, 135-136. “It is difficult not to see in [Kant’s] description of sensibility, the sensible lived on the level of the body proper…a fact which coincides with that of orienting oneself, that is, with taking an attitude with respect to… This distinction [Kant] brings to Gefühl. Gefühl – sensibility – implies an incarnate surveyor and not a simple reflection of this space-object, conventionally called subject”. “In postulating things in themselves so as to avoid the absurdity of apparitions without there being anything that appears, Kant does indeed go beyond the phenomenology of the sensible. But at

147

The independence of sensibility with regard to representation equates to a non-objective origin of the objective experience of the Kantian “I think”. Material, sensibility “enjoys” or “suffers” without objects as such: it enjoys air, food, warmth, sleep, a breeze without knowing that there are such objects.19 When impersonal existing withdraws from sensibility’s material enjoyment, sensibility suffers: “the rustle of the il y a… is horror”.20 The traces of this impersonal existing appear in certain judgments of our objective experience, in judgments such as il pleut (it is raining), il fait nuit (it is dark) and il fait chaud (it is hot), where the il (it) refers not to an identifiable subject but rather to a certain particular, non-identical, non-personal existing or what Levinas also calls the impersonal material “elemental”.21

For Levinas, then, the condition of the finitude of the “I think” is its identification with sensible non-objective material existing. Levinas writes: To be conscious is to be torn away from the there is [il y a], since the existence of a consciousness constitutes a subjectivity, a subject of existence that is, to some extent, a master of being, already a name in the anonymity of the night.22

When the “I think” claims sensible non-objective material existing as its own, it is able to determine the non-objective, non-Kantian experience as a function of its own finitude.

Although it is fair to say that Levinas’ analyses are left at a rather intuitive level, the essential point he wishes to make is that the “I think” is possessive in its finitude: it constitutes itself as an “I think” by an act which possesses a material affectivity (sensibility) originally non-objective and unpossessed. Possessing the non-objective – the objectification of non-objective sensible affectivity as “mine” – is the nature of the I itself. That is, for Levinas, the Kantian self emerges insofar as it achieves sovereignty over its originally non-objective material affectivity, objectifying it as its own.

least he does recognise thereby that of itself the sensible is an apparition without there being anything that appears” (136, emphasis added). 19 Levinas, Totality and Infinity, 110-114. “One does not know, one lives sensible qualities” Totality and Infinity, 135. 20 Levinas, Existence and Existents, 55. 21 Levinas, Totality and Infinity, 135. 22 Levinas, Existence and Existents, 55.

148 The second insight which Levinas credits to Kant is, once again, rather un-Kantian. Levinas suggests that Kant’s moral law is grounded on an encounter with another person, a material experience which somehow disrupts material self-interest and prevents the sovereign achievement. The material affectivity of the encounter is one which cannot be objectified as simply “mine”. The “mine-ness” of self-interest is disrupted by the painful experience of an Other person or what Levinas calls the encounter with the “face”. This encounter signifies that my own pursuits in the world also affect an Other person to whose material needs and interests the il y a also gives itself. A social relation already exists for which I am responsible by the mere fact that my own pursuits and self-interest affect it. The Other, by his or her sheer presence in my world, has already welcomed my own pursuits and interests, risking the effects of these on his or her fate. This social relation – the fact that the Other has already welcomed me and is now dependent on me – precedes my very experience of the social relation and renders me responsible for the effects of my material affectivity on the Other’s fate. This is a social obligation before choice.

Levinas thus distinguishes between the “other” (autre) which can be incorporated and personalised as a source of satiation and the “Other” or the other person in the “face” (Autre or its personalised form Autrui) who can never be incorporated.23 The former (the “other”) confirms the finitude (or “totality”) of rational being. Although it may initially appear alien to the empirical self, it does not challenge the latter’s solitude or possession: the strangeness of the il y a is no threat to the I but rather its possession. The “Other”, however, is utterly resistant to the finitude of the I. The Other threatens the I’s very sovereignty and its supposed possession of the “other” because it demands that the I take on responsibility for interests other than its own.24 Insofar as the material interest, the “exigency for happiness” is, for Levinas, the “principle of individuation” or sovereignty, responsibility for the fate of the Other calls into question the self’s sovereignty, requiring the construction of a world in which the self takes on

23 The distinction between the impersonal “other” – the “other” as the il y a which resists sensibility’s material needs – and the personal “Other” – the other person in the “face” – informs Levinas’ early and later work alike. 24 “The moral act thus finds as a sort of interest that which respect – an exceptional, intellectual sentiment, according to Kant – still preserves of the sentimental”. Levinas, “The Primacy of Pure Practical Reason”, 449.

149 responsibility for the Other’s material enjoyment.25 Since interest cannot be eliminated, responsibility for the Other person’s fate is equivalent to “dis-interest”,26 that is, interest in the Other’s fate. Levinas expresses this interest as the “dis-inter-estedness of goodness”27: reason remains irreducibly interested but self-interest is disrupted by responsibility for the fate of the Other’s interests.28

According to Levinas, “moral interest” in Kant describes this obligation as empirical yet irreducible to the finite forms of individual sovereignty.29 Kant teaches us, claims Levinas, that it is necessary for human reason to assume an “existing” beyond that which it can reduce to its own conditioned understanding.30 Unlike Habermas, Levinas thinks that the “incomprehensibility” of the ethical experience which Kant describes indicates something important about this experience. The fact that moral interest is at once empirical and non-empirical indicates that the experience of duty is not one which I can formulate as a law which I give to myself but is rather a law imposed on me by the Other. It is because I cannot formulate the moral law as a law which I give to myself that the moral interest in Kant “humiliates”, producing “a feeling that can be called pain”, provoking in the faculty of desire a moral feeling of “respect” for persons.31 The

25 “The Kantian kingdom of ends [would not] be possible had not the rational beings that compose it retained, as the principle of individuation, their exigency for happiness, miraculously saved from the shipwreck of sensible nature”. Levinas, Totality and Infinity, 119. 26 Levinas, “The Primacy of Pure Practical Reason”, 449. 27 Emmanuel Levinas, “The Rights of Man and Good Will”, in Entre Nous: On Thinking-of-the Other, trans. Michael Smith and Barbara Harshav (London: The Athlone Press, 1998), 155-158 at 157. 28 For an account of Derrida’s critical analysis of the need for Levinas’ ethics to open itself up to its own Other, see Miriam Bankovsky, “A thread of knots: Jacques Derrida’s Homage to Emmanuel Levinas’ Ethics”, Invisible Culture 8 (2004), 1-19. 29 On the basis of the “moral interest” which he discovers in Kant, Levinas also criticises Kant’s conception of the “I think”. “As if the Other were not only other in the logical and formal sense (that is, other by virtue of a logically or even transcendentally surmountable authority, lending itself to the synthesis of the unity of the Kantian “I think”) but other in an irreducible fashion, with an otherness and a separation that resist all synthesis, prior to all unity, in which the possible relationship between me and the other (the otherness of an undesirable stranger) – in which sociability – is independent of all previous recognition and all formation of totalities…” Emmanuel Levinas, “The Philosophical Determination of the Idea of Culture”, in Entre Nous: On Thinking-of-the Other, trans. Michael Smith and Barbara Harshav (London: The Athlone Press, 1998), 179-188 at 185. The Other thus effects “a fission of the subject, not shielded by the atomic consistency of the unity of transcendental apperception; an awakening coming from the other – whom the Other person is – that ceaselessly puts the priority of the same into question. Awakening as a sobering up”. Emmanuel Levinas, “Philosophy and awakening”, in Entre Nous: On Thinking-of-the Other, trans. Michael Smith and Barbara Harshav (London: The Athlone Press, 1998), 77-90 at 87). Dealing with Levinas’ criticisms of Kant’s theoretical philosophy in its professed relation to the practical would take us too far away from the primacy subject of the chapter, namely, social justice in its relation to ethical obligation. 30 Levinas, “The Radical Question: Kant against Heidegger”, 57-61. 31 Kant, “Critique of Practical Reason”, 5:73-74.

150 material experience of the Other person is of an Other whose will is affected by my own, yet irreducible to it, and this encounter is humiliating. It “strikes down self- conceit” and “infringes on self-love”32 because it equates to the realisation that the Other’s fate is affected by my own will. Again, Levinas leaves his analyses at a rather intuitive level. However, the main point is clear enough, namely, that the material encounter with the Other person somehow prevents the Kantian self from giving itself its own rational law since this encounter cannot be objectified as simply “mine”.

4.1.2 The primacy of the practical interest in the Other: the “fact of reason”

As I explained earlier when dealing with Habermas’ interpretation of Kant (see Chapter 2.1.3), the primacy of the practical interest describes, for Kant, the subordination of reason’s theoretical interest in the completeness of cognition in accordance with a priori principles, to reason’s practical interest in the determination of the will in accordance with necessity or law.33 The will cannot determine itself to action on the basis of law unless it assumes as given the existence of the transcendental freedom which is “problematic” for the theoretical interest. This assumption is a “fact of reason” insofar as it is necessary if rational, free action (morality) is to be at all possible.34

Levinas reformulates Kant’s “fact of reason” because he contests Kant’s statement that the consciousness of one’s own freedom and the unconditional moral law “reciprocally imply” each other.35 For Levinas, the consciousness of the possibility of the will’s

32 Ibid., 5:73-74. 33 Ibid., 5:119-121. 34 Kant writes, “As soon as these same [problematic] propositions belong inseparably to the practical interest of pure reason it [theoretical reason] must accept them – indeed as something offered to it from another source, which has not grown on its own land but yet is sufficiently authenticated”. Theoretical reason must then “try to compare and connect them with everything that it has within its power as speculative reason, being mindful, however, that these are not its insights but are yet extensions of its use from another, namely, a practical, perspective”. Kant, “Critique of Practical Reason”, 5:122. 35 Ibid., 5:29. Darin Crawford Gates makes the similar observation that Levinas reformulates Kant’s fact of reason. See Darin Crawford Gates, “The Fact of Reason and the Face of the Other: Autonomy, Constraint, and Rational Agency in Kant and Levinas”, The Southern Journal of Philosophy 40 (2002): 493-522. Secondary literature on Levinas’ use of Kant tends to overlook the former’s position on the primacy of the practical interest in the latter. To my knowledge, there exist only three articles which consider this important aspect of Levinas’ interpretation: Etienne Feron, “Intérêt et désintéressement de la raison : Lévinas et Kant”, in Lévinas en contrastes, ed. Michel Dupuis and Paul Ricoeur (Brussels: De Boeck, 1998), 108-128; Peter Atterton, “The Proximity between Levinas and Kant: The Primacy of Pure Practical Reason”, Eighteenth Century: Theory and Interpretation 40, no. 3 (1999): 244-262; and Olivier

151 independence from its material determination (Kant’s “fact of reason”) nowhere implies the necessity of that independence (the “ought”). The self in utter solitude is its own necessity. It is only the encounter with an Other, whose law I cannot freely give to myself, that I am aware of the necessity of the independence of my will (the “ought”). He writes: The face-to-face with the Other… is the situation in which an even happens to a subject who does not assume it, who is utterly unable in its regard, but where nonetheless in a certain way it is in front of the subject.36

Consciousness of the moral “ought” does not follow from the mere possibility of the will’s independence from its material determination but rather from that which makes the will’s independence from mere self-interest necessary, namely, the existence of an Other person whose fate depends on me. For Levinas, then, the “fact of reason” is thus not the consciousness of one’s own practical freedom as such but rather the de-centring realisation that my world is not simply my own. The “moral interest” is incomprehensible in Kant (both empirical and rational) by virtue of this de-centring realisation. In Levinas’ terminology, the incomprehensibility of moral interest arises in the encounter with the Other. Kant’s account of moral interest – interest in the determination of the will in accordance with necessity – thus requires the non-Kantian assumption of the existence of an Other whose interests and needs are irreducible to mine and whose fate is caught up with my own.

Moreover, like Kant’s moral law, the presupposition of the existence of the Other (who cannot be reduced to my comprehension) requires the subordination of reason’s theoretical interest in the completeness of cognition to the practical interest in the determination of the will in accordance with necessity.37 The encounter with the Other

Deken, “Le Kant de Lévinas: Notes pour un transcendantalisme éthique”, Revue Philosophique de Louvain 100, no. 1-2 (2002): 108-128. While Levinas’ use of Kant has been the object of other studies, the latter do not explicitly consider Levinas’ reworking of the Kantian idea of the primacy of the practical. See Alain David, “S’orienter dans la pensée”, in Cahiers de l’Herne: Emmanuel Lévinas, ed. Miguel Abensour and Catherine Chalier (Paris: L’herne, 1991), 201-223; Jean-François Lyotard, “Levinas’ Logic”, in Face to Face with Levinas, ed. Richard Cohen (Albany: SUNY Press, 1986), 117- 158; Olivier Deken, “La Réduction de Dieu: Kant, Lévinas et la possibilité d’un athéisme métaphysique”, Revue de théologie et de philosophie 2000, 132: 309-324; and Catherine Chalier, Pour une morale au- delà du savoir. Kant et Lévinas (Paris: Albin Michel, 1998). 36 Levinas, Time and the Other, 78-79. 37 Against Heidegger, Levinas suggests that Kantian philosophy cannot be reduced to the exhibition of the finitude of being but rather concerns the duty to assume the existence “of meanings that have a sense of their own, without being reduced to the epic of being”. He continues, “The question What may I know? Leads to finitude, but What must I do? and What am I entitled to hope? Go farther and, in any case,

152 cannot be formulated in terms of comprehension because the existence in the experience is irreducible to my own. The Other’s existence, however, must be presupposed if action in accordance with the necessity of dis-interest is to be at all possible.38 For Levinas, the notion that human reason is obligated by an existence “beyond being” – that is, beyond the self’s capacity to grasp that existence as its own – is indeed the “great novelty” of Kant’s philosophy of the subject.39

It is not that Levinas subscribes to Kant’s account of the postulates of pure practical reason (the immortality of the soul and the existence of God) which, although problematic for the theoretical interest, are subjectively necessary.40 In Kant, these postulates are subjectively necessary for rational human beings who are materially interested, that is, who are sensible, not divine. If sensible beings, who are also materially preoccupied with their own happiness, are to be sufficiently motivated to act on the moral law, they must assume the existence of those objects which resolve the natural desire for happiness with the disinterested moral pursuit. “The highest good” conceptually resolves disinterest with happiness by means of the idea of happiness distributed in accordance with the worthiness to be happy (virtue). The postulate of the immortality of the soul is the necessary companion of the idea of the achievement of morality and thus, the worthiness to be happy. Since no rational being of the sensible world is capable of such perfection at any moment of his existence, morality can be fully accomplished only in an eternity, hence the idea of immortality.41 The postulate of the existence of God is the necessary companion of the idea that the highest good also includes happiness. The concept of the highest good – virtue and happiness – is possible only insofar as a supreme cause of nature with a causality in keeping with the moral elsewhere than toward finitude. These questions are not reducible to the comprehension of being; they concern the duty and salvation of man”. Levinas, “The Radical Question: Kant against Heidegger”, 59- 60. See also Levinas, “A Reading of Kant”, 62-65; “How to think Nothingness?” 66-70; “Kant and the Transcendental Ideal”, 153-156; and “The Ethical Relationship as a Departure from Ontology”, 184. Ian Leask’s article situates Levinas’ reading of Kant in terms of his opposition to Heidegger. Ian Leask, “Ethics Overcomes Finitude: Levinas, Kant, and the Davos Legacy”, American Catholic Philosophical Quarterly 79, no. 3 (2005): 447-459. 38 “We shall retain from Kantianism a meaning that is not dictated by a relationship with being… It is not accidental that this way of thinking about a meaning beyond being is the corollary of an ethics”. Levinas, “A Reading of Kant”, 65. 39 Levinas, “The Primacy of Pure Practical Reason”, 451. See also Levinas, “The Radical Question: Kant against Heidegger”, 60; and Emmanuel Levinas, En Découvrant l’existence avec Husserl et Heidegger (Paris: Vrin, 1949), 139. 40 Levinas, “The Primacy of Pure Practical Reason”, 451. 41 Kant, “Critique of Practical Reason”, 5:122-124.

153 disposition (God) ensures the convergence of nature and morality, guaranteeing the distribution of happiness in accordance with virtue. Although these Kantian postulates are also “beyond being” in the sense that they cannot be cognised as such and are nonetheless subjectively necessary for ethical action, Levinas believes they are not equivalent to the “dis-interest” which we saw him identify in Kant’s account of “moral interest”. This is because the postulates – the immortality of the soul and the existence of God – are only necessary for rational beings who remain self-interested, beings who are still concerned with their own personal happiness and not that of the Other. Levinas thus concludes that Kant’s conception of God nonetheless returns to onto-theology, that is, it defends the idea of being’s completion and not of being’s “beyond”.42 Levinas is concerned, instead, with the “dis-interest” which grounds the ethical responsibility for the Other’s fate, over and above any concern with one’s own individual happiness. He thus writes: it is this subordination of knowledge to an interest [dis-interest] – before the postulates of pure practical reason, before the existence of God and the immortality of the soul in which pure practical reason believes with a rational faith – that is the religious moment in Kantian thought.43

Ethical obligation is irreducible to self-interest because the Other’s needs, interests, sufferings and joys, for which the self is responsible, resist the self’s finite understanding. The self’s very formulation of the Other’s interests is not equivalent to the otherness of the Other. Obligation is thus irreducible: it is necessary although it cannot be fulfilled.

4.1.3 The “ought”: non-formal necessity

If, in developing his concept of ethical obligation, Levinas consistently draws on the Kantian concept of “dis-interest” and the Kantian idea of the priority of the practical interest, he is equally consistent in rejecting Kant’s formalisation of this obligation. Ethical obligation is an originally non-formal necessity which is not equivalent to its formalisation by Kant’s various formulae of the categorical imperative.

42 For Levinas’ development of this claim in relation to the transcendental ideas of the first critique, see “Kant and the Transcendental Ideal”, 154-155. 43 Levinas, “The Primacy of Pure Practical Reason”, 451.

154 Levinas believes that the ethical obligation disrupting self-interest prevents reason from autonomously giving itself its own law, as Kant claims. Kant defines a moral will as a free will which is effective without being determined by any alien cause. The free will is a rational causality – it causes practical action – and must thus act according to some law: the notion of cause requires the idea of necessity (or law). However, Kant recognises that if the will is autonomous, no law can be imposed on it from outside. Kant concludes that the will must freely give itself its own law since a law imposed on it from outside would negate its own freedom. However, this means that the free will has nothing but itself from which to derive its law. Thus, Kant argues that the will must be its own law, that is, the will is to be a law. The only constraint on our choice, then, is that the choice in question have the form of law.44

The categorical imperative, in its three different formulations, expresses the single idea that the moral principle is the form of law. In the Groundwork, Kant provides three different versions of this formula: 45 (I) The formula of universal law: Act in such a way that the maxim of your action can also be valid as the principle of a universal legislation. 46 (II) The formula of humanity as an end in itself: “So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means”. 47 (III) The formula of the kingdom of ends: “Act in accordance with the maxims of a member giving universal laws for a merely possible kingdom of ends”. 48

44 For a clear presentation of Kant’s constructivist solution to the problem of the law for the moral will, see Christine Korsgaard, Creating the Kingdom of Ends (Cambridge, MA: Cambridge University Press, 1996), esp. Chapter 6, “Morality as freedom”. See Christine Korsgaard’s “Rawls and Kant: On the Primacy of the Practical”, 1169-1171 and also her “Realism and Constructivism in Twentieth-Century Moral Philosophy”, 113-115. 45 Here I follow the list provided by H.J. Paton which identifies three main formulations and their variants. Allen Wood describes this list as “the closest thing to a standard classification of the Groundwork’s formulations of the supreme principle of morality”. (See H.J. Paton, The Categorical Imperative (New York: Harper, 1947), Book III, 129-198; Allen Wood, “General Introduction”, in Immanuel Kant, Practical Philosophy, ed. and trans. Mary Gregor (Cambridge, UK: Cambridge University Press, 1996), xiii-xxxiii at xxiii; Allen Wood, Kant’s Ethical Thought (Cambridge: Cambridge University Press), xx). I will not consider the nature of the formulations in any detail nor offer a defence for my choice to present Paton’s classification. I wish simply to indicate what Levinas rejects in Kant’s general attempt to formalise the moral principle. 46 Kant, “Groundwork”, 4:421; see also Kant, “Critique of Practical Reason”, 5:30. This law is also referred to by commentators as the formula of the law of nature. 47 Kant, “Groundwork”, 4:429.

155 Kant presents these different versions as variants of the same formula: each conveys a different aspect of the law.49 The first, the formula of the universal law, presents the form of law for the moral appraisal of a specific action. The second, the formula of humanity, formalises morality’s end and the motivation for following it. The third, the formula of the kingdom of ends, formulates the form for the complete determination of law in a system of laws. Kant believes that the three ways of representing the principle of morality are ways of formulating the very same law, and that subjective maxims are to be evaluated against this law and thus against its formulations. 50

Ethical responsibility for the fate of the Other person, however, is not equivalent to the autonomy of a sovereign will who gives itself its own principle, the form of law. Levinas makes two main points. First, ethical responsibility is heteronomy not autonomy. Second, ethical responsibility is a sensible “being-affected” by the Other’s “face” which disrupts self-interest and, in this sense, responsibility can be referred to as sacrifice, generosity, charity or, as Derrida will indicate, hospitality or gift (see Chapter 5.2.3). I will deal with each point in turn.

First then, since Kant’s moral will determines its own law – namely, that it be a law – it is autonomous not heteronomous. Heteronomous causes which are alien to the autonomous will are to be excluded. However, the dis-interest which Levinas claims to discover in Kant’s presentation of the “moral interest” is heteronomous: the will’s maxim is given to it by another will which is alien and Other.51 Here, the good will does not consist in the fidelity of the maxim of action to universal law but rather in the responsibility for the fate of the Other. The good will cannot be obligated “by the

48 Ibid., 4:439. This law is also referred to by commentators as the formula of autonomy: “Act only so that [your] will could regard itself as at the same time giving universal law through its maxim” (4:434). 49 Ibid., 4:436. 50 “The above three ways of representing the principle of morality are at bottom only so many formulae of the very same law, and any one of them of itself unites the other two in it”. Kant, “Groundwork”, 4:436. Again, I cannot deal here with the debate over whether each of the formulas are equivalent to each other and merely formulate a different aspect of the moral principle or whether one of these formulas is more fundamental. Allen Wood argues for the latter, claiming that formula III (the formula of autonomy/ formula of the kingdom of ends) unites the former two formulas in itself. See Allen Wood, “Interpreting the Categorical Imperative”, paper presented at the Conference on Kantian Ethics: Interpretations and Critiques, The Values Institute, University of San Diego, January 16-18, 2003), http://ethics.sandiego.edu/video/USD/Kant2003/CI_Panel/ 51 See Levinas’ own account of the relation between autonomy and heteronomy. Emmanuel Levinas, “Philosophy and the Idea of Infinity”, trans. Alphonso Lingis, in Emmanuel Levinas: Collected Philosophical Papers, ed. Alphonso Lingis (Pittsburgh, PA: Duquesne University Press, 1998), 47-60.

156 formalism of universality”. It retains “an incoercible part” which “bears witness both to the multiplicity of humans and the uniqueness of persons”.52 This obedience cannot be assimilated to the categorical imperative, where a universal suddenly finds itself in a position to direct the will; it derives, rather, from the love of one’s neighbour, a love without eros, lacking self-indulgence, which is, in this sense, a love that is obeyed.53

Since it is the particular Other, each time unique, who serves as principle, the imperative which obligates is not equivalent to the rational will as a law unto itself.

Second, where Kant’s free will is to close itself off from sentimentality and the inclinations of sense, the condition for dis-interest which Levinas discovers in Kant’s account of “moral interest” is a pathological “being affected”, the disruption of self- interest. This is indeed why the moral principle “humiliates”, producing “a feeling that can be called pain”.54 Levinas thus opposes Kant by stating that, in this sense, ethical obligation is: charity and mercy and responsibility for the other, and already the possibility of sacrifice in which the humanity of man bursts forth… the dis-inter-estedness of goodness.55

Only in the formula of humanity as an end in itself does Kant retain the non-formal concept of ethical dis-interest. Levinas writes: The relationship with the other is placed right at the beginning! Moreover, it is towards a non-formal relationship of this kind that Kant hastens when he formulates the second version of the categorical imperative… This obedience… finds its concrete realisation in the relationship with the Other…56

Ethical responsibility is not equivalent to the autonomy of a sovereign will which gives itself its own principle.

52 “Does the will not contain an incoercible part that cannot be obligated by the formalism of universality? And we might even wonder whether, Kant, notwithstanding, that incoercible spontaneity, which bears witness both to the multiplicity of humans and the uniqueness of persons, is not already pathology and sensibility and “ill will”… The universality of the maxim according to which the will is assimilated to practical reason may not correspond to the totality of good will”. Levinas, “The Rights of Man and the Rights of the Other”, 122. 53 Levinas, “The Rights of Man and Good Will”, 157. 54 Kant, “Critique of Practical Reason”, 5:73-74. 55 Levinas, “The Rights of Man and Good Will”, 157. See also Levinas, “The Rights of the Other Man”, trans. Michael Smith, in Alterity and Transcendence (New York: Columbia University Press, 1999), 145- 150 at 149. 56 Emmanuel Levinas, “Revelation in the Jewish Tradition”, trans. Sarah Richmond, in The Levinas Reader, ed. Seán Hand (Oxford: Blackwell Publishers, 1989), 191-210 at 206.

157 4.1.4 Lyotard: A pragmatics of obligation

Following Jean-François Lyotard’s logical and pragmatic analysis of Kant’s statement of moral law in his article “Levinas’ Logic”,57 I would like to suggest that Levinas’ account of ethical responsibility lends itself to a pragmatics of obligation which does not equate to a Kantian pragmatics of spontaneous formulation. I share Lyotard’s view that Levinas proposes the non-equivalence of the pragmatic position of the subject of a pure prescriptive like Obey or Act, on the one hand, and the pragmatic position of the subject who formulates in their own terms the content of that prescriptive, on the other. Moreover, I will suggest in Chapter 6 that Habermas tends to emphasise the former over the latter, and emphasises, like Kant, the cognitive dimension of validity claims (see Chapter 6.1).58

Lyotard presents a logical analysis of Kant’s formula of universal law, dividing this formula in two different parts, namely, Act and then in such a way that the maxim of your action is valid as the principle of a universal legislation. He then undertakes an analysis of the pragmatic difference between the two functions.59 Lyotard refers to the first as the operator of obligation and to the second as the “commentary” of the content of the order by the enunciating subject.

The first difference between the two parts concerns the pragmatic situation of the subject. The operator of obligation – expressed in natural language by pure prescriptives like Obey or Act – situates the subject as the addressee of a command, addressing the subject in the second person, the you (tu). Insofar as the prescriptive effectively positions the subject as a you, it is not yet a prescriptive which the subject gives to him- or her-self in the Kantian sense, for the auto-formulation of the prescriptive requires that the subject be pragmatically situated as an I, the enunciative subject and not the subject

57 Jean-François Lyotard, “Levinas’ Logic”, trans. Ian McLeod, in Face to Face with Levinas, ed. Richard A. Cohen, 117-158. 58 See Chapter 2.2 for Habermas’ cognitivism. 59 I will not present Lyotard’s logical analysis of the formula of universal law because I am here primarily interested in the pragmatic implications of the difference between ethical obligation and Kant’s formulation of obligation in terms of the categorical imperative. Dealing with Lyotard’s logical analysis would involve explaining what he sees as the difference in the logical denotation required to render the different parts of Kant’s formula of law and this would take me away from my direct interest. For the details of Lyotard’s logical analysis, see “Levinas’ Logic”, 135-143.

158 of the pure prescriptive. It is only in the “commentary” that the subject is situated pragmatically as an enunciative and formulating subject, the one who determines for him- or her-self the content of the order. By means of the commentary, the addressee of the order (in the position of you) comes to occupy the position of the I. This pragmatic change is marked by the logical indicator in such a way that…

The second difference concerns what Lyotard calls a change in quantifier. The subject who comments the prescriptive is no longer I as a particular subject, who comments a particular prescriptive, but rather any I whatsoever, that is, an I who speaks for all I’s. As Lyotard remarks, the condition which Kant adds, namely that the subjective law be re-written as a universal law, is not itself of the order of obligation, that is, it is not on a par with pure prescriptives like Obey. The subject who comments is pragmatically located as an I who speaks for all I’s, a change in quantifier rather than a change in obligation.

After examining these two differences, Lyotard suggests that the command which addresses the subject in the second person, in the position of the you (tu), is “absolute exteriority” in the Levinasian sense insofar as it is not identical to the power of the subject of the enunciation or “commentary”. Following Jean-Michel Salanskis, Lyotard argues that the operator of obligation cannot be expressed in the register of metalanguage and, as such, is not the object of cognitive truth and validity claims.60 If we accept, with Russell and Tarski, that a metalanguage is defined as a second-order language in which it is possible to decide the truth of expressions belonging to the first- order language, then the operator of obligation in no way fulfils this function. The operator of obligation, expressed in natural language in commands like Obey, cannot be translated into a descriptive or denotative form, that is, the form of the Kantian “commentary”. The translation of a simple command like Obey into a metalanguage, in which its truth can be determined, effects a regression to infinity in the denotative translation. Salanskis demonstrates this effect by attempting to express the command Obey in terms of the descriptive, denotative axiom If O then e. And O where O defines

60 Lyotard, “Levinas’ Logic”, 149-150; Jean-Michel Salanskis, “Genèses ‘actuelles’ et genèses ‘sérielles’ de l’inconsistant et de l’hétérogène”, Critique 379 (1978): 1155-1173. I thank Professor Salanskis for his comments on the paper which I presented during the Colloque – Lyotard at Université de Paris X- Nanterre, June 6-8, 2008.

159 the order Obey and e its execution. In order to execute the descriptive or denotative axiom If O then e. And O, Lewis Carroll’s tortoise – who does not understand the axiom as immediately prescriptive – needs a new descriptive instruction c whose expression is If O then e. And O. Then e. However, this instruction must be introduced into the inference which allows the tortoise to conclude e. This effectively constitutes a new instruction O’ which must be entered into the descriptions permitting the execution of O: If O, then e. And O. And O’. Then e. And soon the execution of the order will be postponed indefinitely because there will always be one descriptive instruction lacking. Lyotard and Salanskis thus claim not only that the pure prescriptive which Levinas identifies cannot be expressed in a metalanguage in which its truth can be determined but also that the pure prescriptive is assumed in alethic, cognitive commands like If O then e: it is the prescription which accompanies any instruction so as to make it obligatory. The modus ponens is thus formulated as a rule, a deontic permission between elements which the tortoise must understand as a permissive (that is, a prescriptive) and not as an alethic axiom which is formally announced as true. Both authors thus conclude, first, that the prescriptive register Levinas identifies in his presentation of ethical obligation is not reducible to the epistemic and denotative register of the metalanguage which the Kantian subject uses to “comment” upon or formulate the prescription; and second, that the prescription, although not executable as such, is that which permits the logical, cognitive command If O then e to be actually executed.

In my view, Lyotard and Salanskis’ interpretations of the non-epistemic but nonetheless operative nature of the pure prescriptive is helpful because it allows us to distinguish between two pragmatics which are not reducible to one another. Although Kant’s formula of universal law includes both pragmatic dimensions, Kant (and, I will argue, Habermas (Chapter 6)) nonetheless places the emphasis on a pragmatics of enunciative spontaneity whereby the subject in the pragmatic position of I gives him- or her-self the law. In contrast, Levinas focuses on the pure prescription which the formula includes, namely, Act, emphasising that the register of the pure prescriptive involves a pragmatics not polarised around the enunciative spontaneity of the Kantian I but rather on the receptivity to the order, on pure prescriptivity, according to which the subject is

160 pragmatically situated in the position of you.61 In this sense, Lyotard and Salanskis’ analyses help us to identify the reason why Levinas both distances himself from certain elements of Kant’s moral philosophy while nonetheless insisting that the practical intent of Kant’s moral philosophy is not dissimilar to his own account of ethical obligation. Levinas discovers, in the pure prescriptive (Act) which Kant includes in the formula of universal law, a pragmatics of receptivity to the utter exteriority of law, an idea which cannot be reduced to the pragmatics of enunciative spontaneity Kant defends.

4.2 Liberal-democratic justice: the “for-the- other” 62 of the social

At this stage, it appears unlikely that Levinas will defend the need for an impartial public point of view as per Rawls and Habermas. The emphasis which Levinas places on the irreducibility of ethical responsibility to impartial procedure appears to foreclose the very possibility of defending the need for shared public principles or procedures. We have noted, thus far, that Levinasian ethics demands partiality in the form of responsibility for the fate of the Other in the particular and this seems to contradict the demand for impartiality which Rawls and Habermas defend. In this sense, it appears unlikely that Levinas will have anything positive to say about justice. If justice deploys the principles of impartiality and of the equality of moral persons, it seems that Levinas can only be critical. The commitment to impartiality will always betray ethical responsibility which demands the virtue of being partial to the Other. Moreover, the commitment to a principle of equality would appear to contradict the asymmetry of ethical responsibility for the Other which includes no guarantee of reciprocity: the Other must come first. Levinasian ethics appears both partial and non-egalitarian.

However, in Levinas’ later work, from Otherwise and Being onwards, lies the suggestion that justice is necessary because one is ethically responsible for more than one Other.63 Commitment to something like impartiality and the equality of Others is

61 Lyotard, “Levinas’ Logic”, 153. 62 Emmanuel Levinas, “Author’s Preface to Entre Nous”, in Entre Nous: On Thinking-of-the Other, trans. Michael Smith and Barbara Harshav (London: The Athlone Press, 1998), xi-xiii at xi. 63 I will focus, here, on Levinas use of the term “justice” in his later writing (from Otherwise and Being onwards). In his early work, Levinas identifies the term “justice” with pure ethical responsibility, that is,

161 necessary because ethical responsibility for more than one Other demands the comparison of incomparable obligations on the basis of the assumption of the right of all Others to an adequate response. Levinas thus explicitly supports the concept of egalitarian justice which the liberal-democratic state deploys. First (4.2.1), non-formal ethical obligation requires commitment to the principle of equity. The basis for such commitment, however, is not the form of law (as it is in Kantian right) but rather ethical responsibility for fate of Others in their plurality. Second (4.2.1), Levinas thus believes that liberal-democratic justice is to be judged in relation to the sufferings which it allows to go unchallenged.

4.2.1 Non-formal obligation and the principle of equity

It is the figure of the Third who necessitates commitment to justice with its principles of equity and impartiality and its system of reciprocal rights and obligations. When faced by more than one Other for whose fates I am responsible, commitment to the equality of Others is demanded by ethics itself.64 On the one hand, ethics demands justice. Pure ethical responsibility for the Other without consideration of the Third is irresponsible because the Third is also affected by my relation to the Other and has, like the Other, already welcomed me. Responsibility for the fate of the Third requires the comparison of ethical responsibilities to Others who now exist in the plural. This comparison necessarily deploys “the idea of equity on which the idea of objectivity is based”.65 Levinas writes: it is in the name of that responsibility for the other, in the name of that mercy, that kindness to which the face of the other man appeals, that the entire discourse of justice is set in motion, whatever the limitations and rigors of the dura lex it may bring to the infinite benevolence toward the Other…66 with the self-Other relation. Thus, although, in his earlier work, the references to justice are positive, this is only because he does not refer to justice in the traditional sense, that is, as committed to the principles of impartiality, freedom and equality. In Otherwise than Being onwards, he uses the term “justice” in the latter sense and this use can be thus contrasted with his earlier deployment of the term. I focus only on Levinas’ later use of the term which draws on the notions of equity, equality and impartiality. 64 “I don’t live in a world in which there is but one single “first comer”; there is always a third party in the world: he or she is also my Other, my fellow. Hence it is important to me to know which of the two takes precedence”. Levinas, “Philosophy, Justice and Love”, 104. For a careful discussion of the Third in Levinas, see Robert Bernasconi, “The Third Party, Levinas on the Intersection of the Ethical and the Political”, Journal of the British Society for Phenomenology 30, no. 1 (1999): 76-87. 65 Levinas, “Philosophy, Justice and Love”, 104. 66 Levinas, “The Other, Utopia and Justice”, 229. “Justice always to be made more knowing in the name, the memory, of the original kindness of man toward his other, in which, in an ethical dis-interestedness – word of God! – the interested effort of brute being persevering in being is suspended”.

162

The obligation for the fate of the Third thus indicates: the extreme importance in human multiplicity of the political structure of society, subject to laws and thereby to institutions where the for-the-other of subjectivity – or the ego – enters with the dignity of a citizen into the perfect reciprocity of political laws which are essentially egalitarian or held to become so.67

Commitment to the principle of the equality of all and to the public institutions of a state is necessary if one is to be able to negotiate one’s responsibilities in a world in which there are many Others.68

On the other hand, the basis for this commitment is not the form of universal law (as it is in Kantian right) but rather ethical responsibility for the fate of Others, both in their particularity and in their plurality. For Kant, the commitment to justice is a commitment to the legality of action: action is to conform to the form of law. Although the universal principle of right does not demand the determination of the will in accordance with the form of law, it does require the determination of action in accordance with law: the actions of one actor should not prevent others from pursuing their own external freedom. Hence the idea that external freedom (action) is right if it can at least coexist with the external freedom (action) of others in accordance with a universal law (see Chapter 2.1.1).69 For Levinas, however, it is not the legality of action which is important but rather responsibility for the fate of all Others and not merely the Other in the particular.70 Whereas for Kant, the universal principle of right conforms at least to the form of the moral law, for Levinas, the legal form of egalitarian public right does not conform with ethical obligation which remains strictly non-formal.

67 Emmanuel Levinas, “Peace and Proximity”, trans. Peter Atterton, Simon Critchley and Graham Noctor, in Emmanuel Levinas: Basic Philosophical Writings, ed. Adriaan T. Peperzak, Simon Critchley and Robert Bernasconi (Bloomington: Indiana University Press, 1996), 161-170 at 168. 68 Simon Critchley believes that the “most convincing way” to read Levinas is in terms of an “anarchist metapolitics” (182). Levinasian ethics equates to “an anarchical, metapolitical disturbance of the anti- political order of the police” (182-183). I think that Critchley needs to recognise Levinas’ affirmation of the necessity of the justice of the State and of the potential violence to the Third which anarchy heralds. See Simon Critchley, “Five Problems in Levinas’ View of Politics and the Sketch of a Solution to them”, Political Theory 32, no. 2 (2004): 172-185 at 182-183. 69 Kant, “The Metaphysics of Morals”, 6:230-231. 70 For a consideration of Derrida’s reading of Levinas’ politics in its relation to Kantian morality and right, see Miriam Bankovsky, “Derrida brings Levinas to Kant: The Welcome, Ethics and Cosmopolitical Law”, Philosophy Today 49, no. 2 (2005): 156-170.

163 In this sense, although egalitarian justice is necessary for the sake of obligation towards the Other and the Third, the former nonetheless violates the specificity of the ethical relation. Comparison is superimposed onto my relation with the unique and the incomparable, and, in view of equity and equality, a weighing, a thinking, a calculation, the comparison of incomparables…71

Although ethics demands justice, justice betrays ethics.

It is worth pausing a moment to consider what exactly ethical obligation to the Other means, and why commitment to the principle of equity and impartiality, which Rawls and Habermas defend, inevitably betrays the very obligations which provoke it. I have referred to ethical obligation as responsibility for the fate of the Other. This might suggest, first, the responsibility for the Other person’s particular interests, which would involve suspending our own interests and actually assisting the Other to pursue those interests which we understand him or her to have. However, ethical obligation might also suggest responsibility for the Other’s welfare, that is, the Other’s well-being or prosperity. This differs from the first by assisting only those interests which we believe would contribute to the Other’s well-being and not simply those interests which we understand the Other to have. Finally, ethical responsibility might even describe responsibility for the fate of the Other’s difference, where difference means, in John Stuart Mill’s sense, individuality, even eccentricity, and involves the responsibility to limit external interference so as to let the Other pursue his or her own difference in ways which he or she sees fit.72 This latter obligation may also incorporate responsibility for the demands of cultural pluralism, where groups of Others lay claim to the right to live according to their own distinct value systems. These different responsibilities are certainly not the same.

Levinas uses the concept of ethical responsibility very loosely and appears to subscribe, on different occasions, to any one of these three possibilities. At times, he prefers the first presentation, rejecting the other alternatives. In its second formulation as responsibility for the Other’s welfare, we already assess and evaluate the Other’s interests, determining which interests contribute to the Other’s well-being as we see it.

71 Levinas, “Peace and Proximity”, 168, emphasis added. 72 Mill, “Introductory” and “Of Individuality as One of the Elements of Well-Being”.

164 The obligation is no longer received as a pure prescription but is now reformulated by an enunciative subject who spontaneously arbitrates between worthy and unworthy interests. In its third formulation as responsibility for the Other’s individuality, we spontaneously reformulate the pure prescription in terms of a liberty principle, absolving ourselves of any further responsibility to actually assist the Other’s pursuits. Only the first, responsibility for the Other’s particular interests, appears to safeguard the pure prescriptivity of the obligation. Suspending one’s own interests in concern for the Other’s interests is what Levinas means by dis-interest.

On other occasions, however, Levinas appears to understand ethical obligation in its second sense, as responsibility for the fate of the Other’s welfare. He writes that those “who want to see the face of God and enjoy his proximity will only see his face once they have freed their slaves and fed the hungry”.73 On still other occasions, Levinas also suggests that ethical obligation entails granting, to Others, a world – mine – in which to pursue their own good as they see fit, that is, responsibility for the Other’s individuality. Indeed, Levinas never specifies exactly what he means by ethical responsibility, preferring to refer, on separate occasions, to all three formulations. This decision is strategic. Were he to specify the precise meaning of ethical obligation, he would pre- determine the very responsibility whose content must remain particular.

In any one of these cases, ethical obligation for more than one Other entails commitment to a principle of equality or impartiality. When responsibility for the interests, welfare or difference of Others is plural, then responsibilities need to be compared, ordered and hierachised. However, Levinas immediately qualifies his affirmation of the necessity of impartiality with the insistence on its non-equivalence with ethics. Now, we have seen that the value of impartiality which Rawls and Habermas defend effectively defines individuals not as particular, unique Others, but rather as moral persons, that is, as the bearers of those capacities which enable them to commit to the impartial standpoint. For Rawls, this means that persons are conceived as free, because acceptance is not to be coerced; equal, because the acceptance of each is required; rational, because justice would not be necessary without the conflicts which

73 Emmanuel Levinas, In the Time of Nations, trans. Michael Smith (London: The Athlone Press, 1994), 162.

165 result from pursuing one’s own advantage; and reasonable, because justice would not be possible without the capacity to formulate and abide by a conception of justice. Habermas, too, defines moral personhood in terms of those capacities which enable the person to participate in consensually-oriented, impartial, action. Rawls and Habermas thereby frame their personhood ideals in terms of those capacities which allow persons to take up the standpoint of justice. In so doing, both theories effectively undercut the ethical responsibility which Levinas’ account lays bare. From the perspective of impartiality, responsibility to others means, quite simply, responsibility to other moral persons, and not responsibility before the Other in the particular.

In contrast, by safeguarding a conception of the Other as a unique particular, who is not exhausted by his or her capacity to take up an impartial standpoint, Levinas makes impartiality itself accountable before particularity. Of course, this means that the impartial standpoint will always fail to satisfy the ethical obligations which Levinas believes motivate the very call to justice. Consequently, Levinas’ account of justice requires more than the determination of a viewpoint which is acceptable to persons who are merely committed to an impartial standpoint. Justice must also be judged against its capacity to assist or protect the interests, welfare and difference of Others in the particular.

4.2.2 The standard: the sufferings of Others

The standard, if one can so put it, against which the determined content of justice is to be judged is, for Levinas, the sufferings of the Other in the figure of the Third. In “Useless Suffering”, Levinas remarks that suffering in the “interhuman perspective” is “meaningful in me, useless in the Other”.74 Suffering is “meaningful in me” because it lies at the origin of the possibility of a relation with the Other. The vulnerability of the self faced with an Other reveals a capacity to be affected by a law which is not one’s own in the Kantian sense. Suffering is “useless in the Other” because its disappearance is ethically desirable.

74 Emmanuel Levinas. “Useless Suffering”, trans. Michael Smith and Barbara Harshav, in Entre Nous: On Thinking-of-the Other (London: The Athlone Press, 1998), 91-102 at 100.

166 For Levinas, charity lies at the root of justice because it attempts to respond to suffering without seeking the return of favours. Justice and obligation for the Other’s fate are very close… Justice itself is born of charity. They can seem alien when they are presented as successive stages; in reality, they are inseparable and simultaneous, unless one is on a desert island, without humanity, without a third.75

For Levinas, this means that the liberal democratic state must be judged in relation to its capacity to respond to suffering. Justice arises from the concern for the Other and the latter “must always watch over justice”.76

On the one hand, the view that justice is born of charity is quite distinct from Kant’s account of justice. For Kant, the duty to promote the happiness of others is moral but not political. Benevolence is a moral duty because I cannot universalise my desire for assistance in times of need if I am not also prepared to offer that assistance to those in need.77 However, as a moral duty, benevolence cannot be demanded of persons in the state. The state is to regulate action alone and thus demands only that action – and not intentions – conform to the form of law. In this sense, the state cannot as such demand that its citizens undertake benevolent acts.

On the other hand, in a surprising turn, Levinas maintains, like Kant, that charity should not override the imperative of justice. The commitment to the equality of all Others means that all Others are to be considered as equals before the law. Justice, lawful in form, applies to all Others equally and must, Levinas insists, have priority over charity. The following paragraph is worth quoting in its entirety. 78 I would like to cite for you a very beautiful portion of a Talmudic text. The rabbis brood over what seemed to them to be contradictions in the Scripture. One verse, Deuteronomy 1:17, says, “Do not in justice, show partiality to someone” – which literally reads in Hebrew: “do not look at his face when judging”. Another verse, Numbers 6:26, adds, “May the eternal One turn His face towards you”. A contradiction or close to it! The rabbis resolve it this way: “Do not look at the face before the verdict. Once the verdict has been given,

75 Levinas, “Philosophy, Justice and Love”, 107. See also Levinas, “The Other, Utopia and Justice”, 229. 76 Levinas, “Philosophy, Justice and Love”, 108. 77 Kant, “Critique of Practical Reason”, 5:35 and Kant, “The Metaphysics of Morals”, 6:451. 78 I credit this example to Robert Gibbs who, in his conference presentation at the Levinas and Law Centennial Conference, depicted the judge as the model for Levinasian ethics. Robert Gibbs, “Verdict and Sentence: Cover and Levinas on the Robe of Justice”, paper presented at the Levinas and Law Centennial Conference, Faculty of Law, McGill University, Montréal, September 16-18, 2006.

167 look at the face”. Charity can accomplish a lot, even after the passage of rigorous justice.79

The example includes a number of important ideas. First, charity towards the particular Other is not to override the demand for justice for all Others. Commitment to the principle of equity among Others and a responsibility for the fate of the Third must be maintained. Second, public institutions – for Levinas is talking about public institutions in this context – are responsible for all Others, that is, the Other in the figure of the Third and not in the particular. Finally, after the verdict has been determined, the non- public order must “look at the face”: it must concern itself with the particular other, attempting by non-public means to compensate for being unable to respond adequately to the particular Other.

On one level then, it appears that ethical responsibility demands commitment to a conception of justice as impartiality, much like Rawls’ theory of justice and Habermas’ discourse ethics. However, I would like to insist on the fact that Levinas does not believe that justice can ever satisfy ethical obligation. The example of the preceding paragraph made it quite clear that justice always fails. Charity “must always watch over justice” 80 so as to compensate in some way for justice’s inevitable failure. It is with this thought that I would like to conclude.

4.3 The failure of justice

Is it fair to state, as I do, that Levinas emphasises the inevitable failure of justice and the impossibility of ever fulfilling ethical responsibility? Many Levinasian commentators would remind me that, like Derrida, the later Levinas affirms that justice is both possible and impossible and that its function is undecidable. I have two responses. First of all, Levinas’ own comments on the possibility of justice within the state are unacceptable insofar as they rely on the premise of Jewish exemplarity. Second, when Levinas speaks about the state without relation to Judaism, he so often takes an admonitory, even adversarial tone, cautioning against justice and the state. I will turn to each point in turn.

79 Emmanuel Levinas, Is it righteous to be? : Interviews with Emmanuel Levinas, trans. Jill Robbins (Stanford: Stanford University Press, 2001), 194, emphasis added. 80 Levinas, “Philosophy, Justice and Love”, 108.

168

I am aware that Levinas’ later work does express the conviction that the liberal democratic state is needed for the pursuit of ethical responsibility on the condition, he claims, that ethical politics is modelled on Judaic law-giving which emphasises, he believes, the particular in the particular-universal relation. Ethical peace within the state is possible if politics directs itself at the face, qua God’s visitation to Moses on Mt Sinai, lawfully approximated in the ten commandments: the face of the Other, in the face of the Jewish God revealed at Sinai, as “a visitation and a transcendence”,81 concretised in the laws of the people, and in the Torah,82 which nonetheless remains non-deductive, in Levinas’ eyes. This much is made clear by his insistence on the futility of attempts to determine the relation between ethics and the Halakhah.83 He thus claims that “The Messianic City is not beyond politics”84 and that the State of Israel, the culmination of Zionism, “finally offers the opportunity to carry out the social law of Judaism”,85 as a form of disruptive politics emphasising the specificity of the face-to- face. This conviction leads him to defend the possibility of the state being able to pursue ethical responsibility to all Others if its determinations of justice are founded on the ideal of Judaic humanism. Judaism is a “living tradition” because its “ideal” is “terrestrial justice”: thought’s hospitable nature must be lived now.86 Its denial of the extra-territoriality of salvation, the conception of messianism as a way of life, the affirmation of being-chosen as requiring exceptional duties not exceptional rights, and finally, the pursuit of daily ritual, all this reveals Judaism’s grass-root preoccupation with the problem of actually putting into practice thought’s hospitable nature.87 Judaism

81 Emmanuel Levinas, “Meaning and Sense”, trans. Alphonso Lingis, in Emmanuel Levinas: Collected Philosophical Papers, ed. Alphonso Lingis (Pittsburgh, PA: Duquesne University Press, 1998), 75-108 at 107. 82 Emmanuel Levinas, “Au-delà de l’Etat dans l’Etat”, in Nouvelles lectures talmudiques (Paris: Editions de Minuit, 1996), 43-76 at 63. 83 The Halakhah is a legal decision on a particular matter or case for which there is no direct enactment in the Mosaic law, deduced by analogy from this law or from the Scriptures, and included as a binding precept in the Mishnah. The Mishnah collects together the precepts and customs which is held to embody the oral tradition of Jewish law. 84 Emmanuel Levinas, “Zionisms”, trans. Roland Lack, in The Levinas Reader, ed. Seán Hand (Oxford: Blackwell Publishers 1989), 267-289 at 271. 85 Levinas, Difficult Freedom: Essays on Judaism, 218. 86 Emmanuel Levinas. Beyond the Verse: Talmudic Readings and Lectures, trans. Gary Mole (London: The Athlone Press, 1994), xii and 211. 87 For a critique of Levinas’ notion of Judaism’s exemplarity in its relation to political life, see Miriam Bankovsky, “Judaizing Ethical Politics: Levinas, Difficult Freedom and the Messianic City”, in Re- ethnicizing the Minds? Cultural Revival in Contemporary Thought, ed. Thorsten Botz-Bornstein and Jürgen Hengelbrock (Amsterdam, New York: Rodopi, 2006), 357-378.

169 thus equates to a politics to which Levinas refers as “the humanism of the suffering servant”.88

While these comments do suggest that Levinas believes ethical responsibility can be pursued in task of determining justice within a state, a model of ethical politics based on Judaic humanism is unacceptable. While recognising that any “humanism of the suffering servant” would need to affirm the validity of particularity, including that of Jewish particularity, we need to remind Levinas that Judaism is not so much the condition for a genuinely generous humanism. Levinas appears to claim that ethical politics is responsible, on the condition that it pursue an ideal which is fundamentally Jewish. Not only does Levinas continually recall the dangers of starting with commonality he would appear to suggest that the weight of historical injustices rendered against Jewish difference requires that, for humanity itself, responsibility before the other is primarily responsibility before the Jew. Judaism is thus exemplary, not merely because it is thus far historically unique in founding itself explicitly on thought’s capacity to be taught and in actually living a life of self-sacrifice, but also because Judaism is the suffering other par excellence. Its difference – the fact that it recognises the true source – continually incites extreme hatred. Any just humanism would have as its condition the affirmation of the value of Jewish difference.

However, given Levinas’ own general account of the hospitable nature of ethics, the affirmation of Jewish exemplarity should rather be the effect of the affirmation of the universal applicability of ethics, and not vice versa, as he appears to suggest. Strictly speaking, every cultural, ethnic, or religious tradition could attempt, within its own tradition, to be taught and to welcome the Other, and to live the implications which follow. Indeed, this is precisely what Levinas wants to encourage. Moreover, Judaism need not remain the only suffering other, if other traditions consciously undergo the sufferings of others, which, again, is exactly what Levinas is calling for. Thus, the affirmation of Judaic particularity is rather a historical claim, one which is derived from the more fundamental account of ethical obligation. A return to being-in-common in order to concretely live Levinasian ethics.

88 Levinas, Difficult Freedom: Essays on Judaism, 170-171.

170 When the affirmation of Jewish exemplarity is ascribed the status of condition for and not effect of the universally applicable, Levinas hierarchises differences in absolute terms, privileging “Jewish difference” over every other difference. The result: a loss of the capacity to recognise the “third” other, the Jew’s other. Ethical politics – the comparison and evaluation of the claims of various others – is jeopardised by the unconditional privilege of Jewish difference, a privilege which compromises Levinas’ capacity to recognise the sufferings or welcome the differences of other Others, leading to him not only to refuse to criticise either Israel’s relation to its neighbours in the 1967 Six-Day War89 or the Israeli army’s complicity in the 1982 massacre of Palestinian refugees, but also to fear the emergence on the world stage of an Asiatic civilisation “for whom Abraham, Isaac and Jacob no longer mean anything”.90 It is thus difficult to accept the premise of a specifically Judaic humanism as the basis for the defence of the possibility of justice within the state.

I turn now to my claim that, when speaking about the state without reference to Israel or the exemplarity of Judaic humanism, Levinas himself emphasises the impossibility of justice within the state.91 On occasions too many to cite, in both his earlier and later work, Levinas locates the ethical vocation outside the state and beyond justice, or emphasises the violence of liberal democracy. “The defence of the rights of man corresponds to a vocation outside the state, disposing, in a political society, of a kind of extra-territoriality…”92 “Justice – called by charity – nevertheless founds the State and its tyrannical component”. 93 And again: Fundamental liberalism corresponds to the ceaseless deep remorse of justice: legislation always unfinished, always resumed, a legislation open to the better. It attests to an ethical excellence and its origin in kindness from which, however, it is distanced… 94

89 Emmanuel Levinas, “Space is not one dimensional”, in Difficult Freedom: Essays on Judaism, trans. Seán Hand (London: The Athlone Press, 1990), 259-264. 90 Levinas, Difficult Freedom: Essays on Judaism, 165. See also Levinas’ comments on the “yellow peril” in Emmanuel Levinas, “Le Débat Russo-Chinois et la dialéctique”, in Les imprévus de l’histoire (Montpellier, France: Fata Morgana, 1994), 170-176, 171. For further discussion of these and other problems in Levinas’ account of Jewish exemplarity, see Bankovsky, “Judaizing Ethical Politics: Levinas, Difficult Freedom and the Messianic City”. 91 For further consideration of Levinas’ account of the state see Howard Caygill’s Levinas and the Political (London: Routledge, 2002), in particular “Peace and the “work of justice”“, 120-127. 92 Levinas, “The Rights of Man and the Rights of the Other”, 123. 93 Levinas, Is it righteous to be? : Interviews with Emmanuel Levinas, 194, emphasis added. 94 Levinas, “The Other, Utopia and Justice”, 229-230, emphasis added.

171 This means that liberal democracy is “always to be perfected against its own harshness”. 95 Insofar as the rigorous passage of justice cannot correspond to the ethical vocation, Levinas claims that the effective avenues for critique are located outside the state. This appears to suggest that one cannot pursue critique through the redeployment of the state’s vocabulary, concepts, and rights. By insisting that the ethical vocation is beyond the state, Levinas renounces the possibility of using the state’s own vocabulary to critique substantive measures. This is unfortunate. First, it renounces the chance and possibility of pursing critique within the limits of the state. Second, it overemphasises the need for rebellion against order itself. Even if in its injustice it is stable, ruled by law, submissive to a power and forming an order, a state, a city, a country, or a professional organization; a rebellion for another society, but a rebellion that begins where the other society is satisfied to leave off; a rebellion against injustice that begins once order begins; a new tonality, a tonality of youth…96

In rebellion, Levinas sees the admission of the singularity of Others’ claims, claims which are not permitted by the general will.

As Derrida remarks, Levinas does not pursue an internal critique and, in this sense, marks an interruption with Hegel’s concept of social justice. “[Levinas] clearly intends to mark an interruption: an interruption of both symmetry and dialectic. He breaks with both Kant and Hegel…”97 The asymmetrical obligation for unassimilable difference is not equivalent to the “objective morality” of Hegelian justice, whereby persons draw on the resources internal to their tradition so as to affirm the rationality and objectivity of their institutions as mutually good for each member of the civil world. The non-formal ethical relation cannot be sublimated in the Hegelian sense.98

Having reconstructed Levinas’ interpretation of Kant, I am now in a position to demarcate its central difference with Rawls’ and Habermas’ interpretations. Where Rawls and Habermas determine the limits of the “art of the possible”, Levinas tends to

95 Ibid., 229-230, emphasis added. 96 Emmanuel Levinas, “Ideology and Idealism”, trans. Sanford Ames and Arthur Lesley, in The Levinas Reader, ed. Seán Hand (Oxford: Blackwell Publishers 1989), 233-248 at 242. 97 Jacques Derrida, Adieu to Emmanuel Levinas, trans. Pascale-Anne Brault and Michael Naas (Stanford: Stanford University Press, 1999), 91. 98 For a short and clear account that situates Levinas’ politics not only in opposition to Hegel but also in opposition to Hobbes and Locke, see Chapter 5 of William Paul Simmons’ An-archy and Justice: An introduction to Emmanuel Levinas’ Political Thought (Oxford: Lexington Books, 2003), 78-95.

172 emphasise the “art of the impossible”. Rawls and Habermas believe that an objective interpretation of Kant’s moral standpoint is possible and that this interpretation can provide a critical standard against which to assess public institutions. By identifying Kantian obligation as non-formal responsibility for the fate of the Other, whose interests are irreducible to my own, Levinas emphasises the impossibility of formalising ethical responsibility either substantively or procedurally. According to his non-Kantian interpretation of the practical intent of Kant’s moral principle, “ethical obligation” cannot be achieved. Only the “useless suffering” of Others can provide the standard against which to assess institutions, yet this suffering has no essential content which can be formalised as such. Against Rawls and Habermas, Levinas would claim that the content of justice – procedural or substantive – cannot play a critical role in any simple sense. The principle of equity is unable to permit a response to the particular needs of all Others. Although, when faced with Others, the principle of equity is to be deployed, this principle is not equivalent to the original social bond which ties the Other’s fate to my own. Its formalisation is its violation.

Levinas tends to amplify the impossibility of formalising ethical responsibility either substantively or procedurally. While he affirms that justice is necessary to guarantee the pursuit of ethical responsibility for both the Other and the Third, he nonetheless emphasises that ethical responsibility is irreducible to the impartiality that justice demands. Justice’s inevitable failure must be compensated by charity or challenged by rebellion.

Now that I have identified the difference between the accounts of justice which Rawls, Habermas and Levinas defend, I will be able to progress to the second stage of the argument. In Chapter 6, I will suggest, on the one hand, that Levinas’ emphasis on justice’s failure can provoke a certain vigilance with respect to justice’s determined forms. On the other hand, I will argue that, without further qualification, affirming the “impossibility” of justice is distinctly unsatisfying. When the analysis only argues for justice’s failure, without distinguishing between better and worse forms of failure, vigilance surrenders its critical potential. I stated my position clearly in the Introduction: the defence of impossibility is of little value without assuming the possibility of constructing new and better social forms, thereby subscribing to the constructive

173 moment. Moreover, I will argue that faith with respect to the possibility of justice implies the commitment to an ideal of moral personhood, in the Rawlsian and Habermasian sense, and not merely to a concept of the person as a distinct, unique Other. Carefully considering the limits of the Levinasian project, I argue that the engagement with Rawls and Habermas can yield productive results for his own theory, which needs to be supplemented by faith in justice’s possibility.

Before developing this argument, however, I will first turn to consider Derrrida’s account of justice. He will not overemphasise justice’s failure but will rather underline the undecidability of its critical function. Faced with Derrida’s own concrete analyses of actual political situations, I will oppose the prevailing, liberal view that deconstruction withdraws from the specificity of empirical social research, unable to take a stand on concrete issues. Moreover, I will suggest that Derrida’s insight into the possible and impossible status of justice can productively be brought to bear on Rawls’ and Habermas’ theories. Pursuing my analyses, I argue that the gap between the constructive and deconstructive traditions is not unbridgeable and that each tradition complements the other.

174 Chapter Five

Derrida on Justice: Intervening to Improve the Tradition

Justice does not end with law. Derrida, “Autoimmunity: Real and Symbolic Suicides”, 133.

In “The Force of Law: The ‘Mystical Foundation of Authority’ ”, Derrida himself voices the possibility of bringing deconstructive justice to bear on the constructive theory which Rawls defends. He writes: These texts by Montaigne and Pascal, along with the texts from the tradition to which they belong, like the rather active interpretation of them that I propose, could be invited to a discussion with Stanley Fish in “Force” on H.L.A Hart’s Concept of Law, and several others, implicitly including John Rawls…1

Derrida’s claim supports the position which I am defending in this thesis. The gap between the constructive and deconstructive traditions is not unbridgeable. Indeed, there exist genuine possibilities for their productive engagement. This view certainly opposes the prevailing liberal view, outlined in the Introduction, which dismisses deconstruction as apolitical. Before exploring some of the possibilities of engagement, in Chapters 6 and 7, I first need to complete the initial stage of my argument. That is, I now need to provide justification for what I have suggested is the central difference between deconstructive justice, on the one hand, and constructive and reconstructive justice, on the other. I need to demonstrate that although Derrida shares the constructivist’s faith in the possibility of justice, he does not overlook the constitutive gap between the actual and the possible. Instead, he underlines the undecidability of justice’s critical function.

Keeping to the theme, I will examine Derrida’s own engagement with Kant’s practical philosophy, arguing that Derrida draws attention to the conflicting demands which

1 Derrida, “Force of Law: The “Mystical Foundation of Authority” ”, 242.

175 Kant’s concepts of rational faith, perfect friendship, and hospitality include. In so doing, he takes a critical stance toward the determined forms which such concepts take. As concerns the concept of justice, I will suggest that deconstruction uncovers the undecidable status and function of the determination of justice in the form of laws, principles and procedures.

Distinguishing himself from both the reconstructive tradition and Levinas, Derrida affirms, in part through his readings of Kant, the “undecidability” of the critical function of justice. Derrida, I argue, gets the conceptual balance right. Committed to the possibility of justice, Derrida also acknowledges its impossibility: no local determination can reconcile responsibility before the other with impartiality among all. Indeed, justice remains essentially perfectible.

In section one (5.1), I will lay out Derrida’s account of deconstruction as justice. To this end, I will consider the reasons why it was not, at first, clear that deconstruction was concerned with the question of justice and I will suggest that these early texts nonetheless preface a striking claim which Derrida pursues in his later work, namely, the claim that justice is deconstruction.

In section two (5.2), I will show how a certain pragmatics of intervention is implemented by Derrida in his own readings of Kant’s texts on practical philosophy. By analysing Derrida’s readings of Kant’s texts, I will be able to examine the manner in which deconstruction intervenes in particular contexts without, for all that, constituting a general method.

Finally, in section three (5.3), I will explain what the account of deconstruction as justice implies for a practice of deconstructive intervention in political contexts, focusing on Derrida’s deconstructive criticism of the Security Council veto. By laying out the manner in which deconstruction intervenes in political contexts, I will lay the groundwork for the argument, pursued in Chapters 6 and 7, in favour of the complementarity of a deconstructive pragmatics of intervention and the constructive and reconstructive pragmatics which Rawls and Habermas defend.

176 I would like to indicate, at this point, that this chapter will on occasions emphasise the differences between deconstructive intervention and the constructive and reconstructive approaches. This emphasis, however, will not undermine the position to be presented in Chapter 6 and 7; indeed, it will strengthen that position insofar as the deconstructive pragmatics of political intervention will be shown, by virtue of these differences, to require a constructive and reconstructive approach and vice versa.

5.1 Justice as deconstruction: intervention

5.1.1 The early texts: prefacing the later concerns

It has not always been clear to readers that Derrida is concerned with the question of justice. Derrida had deployed the term “deconstruction” for some twenty years before “The Force of Law” (1990) explicitly linked it with justice. The claim was striking for at least two reasons.2 First of all, as indicated, Derrida’s early work did not deal – at least, not directly – with the question of justice. As Paul Patton remarks, much of the first two decades of deconstruction were characterised by an absence of any explicit connections between the conceptual politics of deconstruction and the overtly political subjects and concepts with which Rawls and Habermas deal.3 After stressing, in 1962, the importance of language to Husserl’s account of history in Edmund Husserl’s “Origin of Geometry”: An Introduction,4 and after problematising, in 1967, Husserl’s position that language is founded on logic rather than rhetoric in Speech and Phenomenon and Other Essays on Husserl’s Theory of Signs,5 Derrida seemed to focus, in texts like Writing and Difference6 and Of Grammatology,7 on questions concerning the conditions of linguistic functioning and textual interpretation. The trend continued

2 For further consideration of some of the reasons why it was not clear that Derrida was concerned with justice see: Alex Thomson’s Deconstruction and Democracy (London, New York: Continuum, 2005), 1- 8; Patton’s “Derrida’s Engagement with Political Philosophy”, 149-154; and Richard Beardsworth, Deconstruction and the Political (London, Routledge: 1996), xi. 3 Patton, “Derrida’s Engagement with Political Philosophy”, 149. 4 Jacques Derrida, Edmund Husserl’s “Origin of Geometry”: An Introduction, trans. John P. Leavey Jr. (Nebraska: University of Nebraska Press, 1989). Originally published in 1962. 5 Jacques Derrida, Speech and Phenomenon and Other Essays on Husserl’s Theory of Signs, trans. David B. Allison (Evanston: Northwestern University Press, 1973). Originally published in 1967. 6 Derrida, Writing and Difference. Originally published in 1967. 7 Derrida, Of Grammatology. Originally published in 1967.

177 five years later in 1972 with books like Margins of Philosophy,8 Dissemination9 and Positions10 dealing again, for the most part, with the relation of difference as the constitutive condition of the production of textual meaning and value. Such texts suggested, in different ways, that the relations of difference which condition the possibility of the systematic production of linguistic and textual meaning also exceed the very system which they appear to permit and, as such, are conditions not only of the possibility of systematicity but also of the impossibility of that systematicity.11

However, it is not surprising that, despite its focus on language and meaning, Derrida’s early work nonetheless received a consistently political and polemical reception.12 Even in those texts which do not deal explicitly with ethical or political concepts or problems, Derrida’s vocabulary is pregnant with ethical resonances. On numerous occasions, Derrida assigns an ethical evaluation to his analyses, identifying and critiquing what he calls the “violence” of the text13 or of philosophy,14 the “complicity” of the origin,15 the “oblivion” of Being,16 the “repression” of the “forgotten” of metaphysics and of

8 Derrida, Margins of Philosophy. Originally published in 1972. 9 Derrida, Dissemination. Originally published in 1972. 10 Jacques Derrida, Positions, trans. Alan Bass (Chicago: The University of Chicago Press, 1981). Originally published in 1972. 11 I realise that this statement oversimplifies – and thereby misrepresents – Derrida’s various analyses, which take a specific form as a function of the particular text in which he intervenes. In this sense, Derrida’s analyses are irreducible to the overarching statement I provide here. However, I would like to take the risk of perhaps oversimplifying in order to move on, as quickly as possible, to consider the later texts which deal explicitly with Kant’s practical philosophy and with ethical and political concepts and themes. 12 The polemical and political reception of deconstruction was not unique to the United States but also characterised, albeit in different form, the reception both in France and Germany. I have already noted in the Introduction to the thesis that Habermas (in Germany) criticised Derrida’s early work as ethically and politically dangerous via a reading of Derrida’s account of the relationship between philosophy and literature. I also noted that in France, the Colloque de Cérisy in 1980 took as its theme the work of Derrida, devoting a panel to the problem of the political. I also indicated, again in the Introduction, that, at the request of Derrida, Philippe Lacoue-Labarthe and Jean-Luc Nancy established the Centre de Recherche Philosophique sur le Politique, so as to provide a deconstructive alternative to the empirical approach of the political sciences, interrogating the condition of the very demand for a politics. Once again, see Nancy Fraser’s clear account of the arguments presented during the political panel and within the framework of the Centre de Recherche Philosophique sur le Politique. Fraser, “The French Derrideans: Politicizing Deconstruction or Deconstructing the Political?” See also the proceedings of the political seminar in Philippe Lacoue-Labarthe and Jean-Luc Nancy, eds., Les fins de l’homme : à partir du travail de Jacques Derrida (Colloque de Cérisy, 23 juillet – 2 août 1980) (Paris: Editions Galilée, 1981). Finally, as indicated in the Introduction, see the various attempts to develop a deconstructive approach to politics in the years which followed the conference. Lacoue-Labarthe and Nancy, “Ouverture” and “Le “retrait” du politique”. 13 Derrida, Of Grammatology, 101; and Derrida, Dissemination, 5. 14 Derrida, Writing and Difference, 79. 15 Derrida, Of Grammatology, 87. 16 Derrida, Margins of Philosophy, 23.

178 comprehension,17 the “crisis” of the binary opposition,18 and the “crises of reason… in complicity with what the world calls crises of madness”.19 He protests against the notion of simple repetition,20 evoking the possibility of “chang[ing] the machinery, the system or the terrain”,21 of diminishing the “naïveté” of discourse,22 the need to formulate questions concerning the closure of a concept23 and the “limits of its plasticity”,24 and the possibility of emancipation from a certain history of language by means of resisting that language.25 Contained in his various analyses is the implicit or explicit demand to reconsider the status of the evaluatory system which we establish in specific contexts, in terms of the differential relations it establishes with what it devalues and excludes. Derrida asks us to think the text in relation to its determined context and that which is excluded from this context,26 thereby thinking “two texts, two hands, two visions, two ways of listening[,] [t]ogether simultaneously and separately”.27 On one occasion, Derrida claims that the function of language is a consequence of “a certain ethical or axiological experience” by means of which the elements of a system are hierarchically ordered.28 It is because he links systems of thought and language, on the one hand, and normative, ethical experience, on the other, that Derrida is keen to suggest that a system of ethical determinations and evaluations is likewise made possible by conditions which exceed systematicity and which thereby render ethical systems essentially non-systematic. Moreover, as early as 1969, in “The Ends of Man”, Derrida attempts to link his analyses of language’s systematicity to two very different possibilities for ethico-political practice, namely, an ethics of revolution as a “change of terrain”, “a radical trembling… played out in the violent relationship of the whole of the West to its other” 29 or an ethics of internal critique, the “attempt” at an exit “without changing terrain, by repeating what is implicit in the founding concepts and the original

17 Ibid., 23-24, 65, 157. 18 Derrida, Of Grammatology, 283. 19 Derrida, Writing and Difference, 63. 20 Derrida, Margins of Philosophy, 108. 21 Ibid., 108. 22 Derrida, Writing and Difference, 169. 23 Derrida, Margins of Philosophy, 153, 177. 24 Ibid., 229. 25 Derrida, Writing and Difference, 28. 26 Derrida, Margins of Philosophy, 25. 27 Ibid., 65. 28 Derrida, Positions, 25. 29 See “The Ends of Man”, in Derrida, Margins of Philosophy, 109-136.

179 problematic”, 30 a strategy he refers to again in Positions [1972].31 Whereas the first strategy attempts to instate the beyond of history, thereby rupturing that history, the second denies that rupture is even possible and attempts to critique a tradition from within that tradition itself, discovering, in Hegelian style, the tradition’s normative resources for its own internal critique.

Given that these early texts were not intended as careful considerations of directly ethical or political questions and that the above suggestions were not carefully fleshed out, Derrida was accused, among many other things,32 of an apparent refusal to address concrete political problems. Critics argued that by identifying the conditions of the possibility and impossibility of meaning and value, Derrida’s analyses appeared completely incapable of supporting stable, concrete positions, thereby leading to indecision and an inability to take sides.33 I have already noted, in the Introduction to this thesis, that both Thomas McCarthy and Nancy Fraser (in the footsteps of Habermas) subscribe to the view that deconstruction withdraws from the specificity of “empirical social research”, retreating to a sort of mysticism which is “at best an airy abstraction”.34 We also saw Amy Gutmann and Seyla Benhabib claim that deconstruction denies itself the opportunity to make use of the standard of impartiality,

30 Ibid., 135. 31 Derrida, Positions, 24. I noted, in the Introduction, that, of the two strategies which Derrida mentions at the end of “The Ends of Man”, Gayatri Chakravorty Spivak defends the first (intervention as a “change of terrain”) over the second (intervention as change without changing terrain) and argues that deconstruction sustains a politics of revolution. In contrast, Jacob Rogozinski defends the second over the first, arguing that deconstruction corresponds to a politics which discovers within tradition itself the normative resources for its own critique. In this sense, argues Rogozinski, it is not Marx (as Spivak claims) but Hegel who follows the normative impulse of deconstruction: deconstruction, in this second sense, corresponds to “the “beautiful death” under the yoke of the Law”. See Spivak. “Il faut s’y prendre en s’en prenant à elles”, 505-515; and Jacob Rogozinski, “Déconstruire la révolution”, in Les fins de l’homme : à partir du travail de Jacques Derrida (Colloque de Cérisy, 23 juillet – 2 août 1980), ed. Philippe Lacoue- Labarthe and Jean-Luc Nancy (Paris: Editions Galilée, 1981), 516-526. 32 Penelope Deutscher itemises the ways in which deconstruction has been coded by various critics over the years (“Dionysiac!”, “anarchist!”, “nihilist!”, “apolitical!”, “relativist!”, “negative theological!”, “self- contradictory!”, “trivialist!”, “pluralist!”, “Barthesian!”, “reversalist!”, “strawman-ist!”, “sensationalising!”, “pragmatist!”, “transcendentalist!”… the list continues) and she remarks that, although in their contexts most of the various codings of deconstruction have at least some credibility, the list itself is implausibly diverse, “the curious effect of juxtaposing Derrida as anti-philosopher and philosopher, deconstitutive and reconstitutive”. See Penelope Deutscher, “Deconstruction in a Retrospective Time”, in Yielding Gender: Feminism, Deconstruction and the History of Philosophy (London and New York: Routledge, 1997), 34-58 at 35. 33 See Wolin’s defence of this criticism in The Seduction of Unreason, 233. 34 McCarthy, “The Politics of the Ineffable: Derrida’s Deconstructionism”, 115 and 116; Fraser, “The French Derrideans: Politicizing Deconstruction or Deconstructing the Political?”, 142; and Habermas, “On Leveling the Genre Distinction between Philosophy and Literature”, 210.

180 and yet this standard is the single most effective means contesting concrete injustices.35 As Alex Thomson notes, even a sympathetic reader like Simon Critchley reaches a similar conclusion in his Ethics of Deconstruction when he wonders whether there is not an “implicit refusal of the ontic, the factical, and the empirical – that is to say, of the space of doxa, where politics takes place in a field of antagonism, decision, dissension and struggle? In this sense, writes Critchley, might one not ultimately speak of a refusal of politics in Derrida’s work?”36

Secondly, the charge of indecision appeared to be confirmed by Derrida’s own explicit refusal to respond to demands to take on political questions or to articulate his own understanding of the political implications of deconstruction. Hence Derrida’s statement in 1981 that “I have never succeeded in directly relating deconstruction to existing political codes and programmes”.37 As many commentators have remarked, Derrida persistently avoids assigning any essence to the word “deconstruction”, and is particularly keen to avoid defining it in terms of a political programme or method.38 He thus writes that although deconstruction intervenes, it is: not a general method, it is not my property, it is not a tool. Of course, there are some schemes, some types, regular types that you could use as a grammar, as a technique, but they are only secondary things in deconstruction. Deconstruction is not a technique, is not a method.39

In this sense, “deconstruction is not “possible” if “possible” means to work as a technical instrument functions or to obey a program. Deconstruction is an explanation with an experience of the impossible”.40 Deconstruction thus appears to contrast, in this sense, with the theories of Rawls and Habermas which present themselves as methodological approaches – constructive and reconstructive – which facilitate the determination of principles or procedures by means of which justice can be calculated and delivered.

35 Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida”, 145- 146; and Gutmann, “Introduction”, 70. 36 Simon Critchley, The Ethics of Deconstruction, 200. 37 Derrida, “Deconstruction and the Other. An Interview with Jacques Derrida”, 119. 38 Thomassen, Deconstructing Habermas, 4-5. 39 Derrida, “Interview”, Art Papers 10, no. 1 (1986): 31-35 at 33. 40 Derrida, “Politics and Friendship”, in Negotiations: Interventions and Interviews 1971-2001, trans. and ed. Elizabeth Rottenberg (Stanford, California: Stanford University Press, 2002), 147-198 at 192.

181 For numerous reasons, the representation of “deconstruction” as promoting indecision and inactivity has, however, become more and more untenable.41 As Paul Patton again notes, towards the end of the 1970s Derrida himself became more willing to engage with political concepts and issues.42 One of the first explicit forays into the arena took place in 1976 as a lecture, published later as “Declarations of Independence”, which analyses the conditions of both the possibility and impossibility of the conceptual scheme which was supposed to performatively unite popular sovereignty and the constitutional rule of law, a unity we saw Habermas defend (see Chapter 3.1.3). Moreover, Patton continues, in texts published in the 1980s, Derrida continues to deal with political concepts and themes, culminating in his assertion, in “Force of Law”, that the idea of justice itself (in contrast to its determined, calculated and positive form in actual laws and principles of a Rawlsian or Habermasian type) is bound up with the very possibility of deconstruction.43 As Patton notes, from “Force of Law” onwards into the 1990s, Derrida has offered analyses of ethical and political concepts such as hospitality, equality, responsibility, and democracy, writing about Europe, the ideals of the Enlightenment, the prospects for a cosmopolitan global political order no longer determined by the Security Council veto, and the future of state sovereignty. A deep concern for justice emerges in these later writings. We see Derrida campaigning against apartheid, speaking out in defence of imprisoned intellectuals, criticising governments for their treatment of illegal immigrants, and taking concrete positions to oppose the

41 See Theodore W. Jennings Jr’s Reading Derrida/ Thinking Paul: On Justice (Stanford, California: Stanford University Press, 2006) for further discussion of the untenability of the view that deconstruction leads to indecision (8-10). 42 Patton, “Derrida’s Engagement with Political Philosophy”, 150. 43 “Justice itself, if it exists, outside or beyond law, is not deconstructible. No more than deconstruction itself, if such a thing exists. Deconstruction is justice. It is perhaps because law (which I will therefore consistently try to distinguish from justice) is constructible… [that it is] deconstructible and, better yet, that it makes deconstruction possible”. Derrida, “Force of Law”, 143. I will deal further with the relation between deconstruction and justice in the section which follows. Other texts of the 80s which take on political concepts include “Racism’s Last Word”, trans. Peggy Kamuf, Critical Inquiry 12, (1985): 290- 299; “No Apocalypse, Not Now (Full Speed Ahead, Seven Missiles, Seven Missives)”, trans. Catherine Porter and Philip Lewis, Diacritics 14, no. 2 (1984): 20-31; “The Laws of Reflection: Nelson Mandela, in Admiration”, in For Nelson Mandela, ed. Jacques Derrida and Mustapha Tlili (New York: Seaver Books, 1987), 13-42; “Negotiations”, in Negotiations: Interventions and Interviews 1971-2001, trans. and ed. Elizabeth Rottenberg (Stanford, California: Stanford University Press, 2002), 11-40; “What I would have said…” in Negotiations: Interventions and Interviews 1971-2001, trans. and ed. Elizabeth Rottenberg (Stanford, California: Stanford University Press, 2002), 55-68; “Economies of the Crisis”, in Negotiations: Interventions and Interviews 1971-2001, trans. and ed. Elizabeth Rottenberg (Stanford, California: Stanford University Press, 2002), 69-73; “Politics and Friendship”, 147-198; and “Ethics and Politics Today”, in Negotiations: Interventions and Interviews 1971-2001, trans. and ed. Elizabeth Rottenberg (Stanford, California: Stanford University Press, 2002), 295-314.

182 death penalty, to oppose censorship of the “politically incorrect”, and to support new forms of familial reproduction.

Moreover, Derrida himself denies the suggestion that there is a political or ethical turn in his work, insisting that questions of justice have always been at stake in his various interventions. “Deconstruction, while seeming not to “address” the problem of justice, has done nothing but address it, if only obliquely, unable to do so directly”.44 Derrida writes: It goes without saying that discourses on double affirmation, the gift beyond exchange and distribution, the undecidable, the incommensurable or the incalculable, on singularity, difference and heterogeneity are also, through and through, at least obliquely discourses on justice.45

More recently, in Rogues: Two Essays on Reason (2003) he insists that “there never was in the 1980s or 1990s, as has sometimes been claimed, a political turn or an ethical turn in “deconstruction”, at least not as I experience it”.46 47

44 Derrida, “Force of Law”, 237. 45 Ibid., 235. 46 Derrida, Rogues, 39. For further denials of an ethical or political turn, see Derrida’s comments in “Following Theory”, where he writes: “I would be presumptuous enough to say that you wouldn’t find discontinuity in my theoretical discourse. There are a lot of changes in terms of emphasis, or displacements, but there is no systematic discontinuity”. Jacques Derrida, “Following Theory”, in Life.after.theory, ed. Michael Payne and John Schad (London and New York: Continuum, 2004), 1-51 at 26. In Paper Machine (trans. Rachel Bowlby (Stanford: Stanford University Press, 2005), 89), Derrida writes in a similar vein: “What I am putting forward here is not the outline of some “ethical turn”, as it has been described, any more than the previous allusions to responsibility, hospitality, the gift, forgiveness, witnessing, etc. I am simply trying to pursue with some consistency a thinking that has been engaged around the same aporias for a long time”. 47 For an account and assessment of some of the reasons commentators suggest for accounting for Derrida’s consideration of ethical and political themes and for his denial that this consideration constituted a decisive change in his work, see Patton’s “Derrida’s Engagement with Political Philosophy”, 149-152. Patton considers the position of Richard Kearney and John Caputo, who endorse Derrida’s claim that the shift in focus does not constitute an ethical turn as such. See Richard Kearney, “Derrida’s Ethical Re-Turn”, in Working Through Derrida, ed. Gary B. Madison (Evanston, Ill.: Northwestern University Press, 1993), 28-51 at 29; and Caputo, Deconstruction in a Nutshell, 127. Patton also considers the view – aired by John McCormick and Geoffrey Bennington – that Derrida turned to distinctly ethical and political themes in order to respond to successive attempts at the end of the 1980’s to tarnish deconstruction by association with Paul de Man and Heidegger, both affiliated with Nazism. See John McCormick, “Derrida on Law: Or, Poststructuralism Gets Serious”, Political Theory 29, no. 3 (2001): 395-423; and Geoffrey Bennington, “Derrida and Politics”, in Jacques Derrida and the Humanities: A Critical Reader, ed. Tom Cohen (Cambridge: Cambridge University Press, 2001), 193- 212). Patton believes that such accounts of Derrida’s shift in focus are unnecessarily reductive and that the question is not so much what impelled Derrida’s later engagement but rather what prevented him from doing earlier. Reasons for his earlier reticence should be sought, suggests Patton, in his relationship with the French intellectual left and the local context in which his thought developed during the 1960s (152). Support for Patton’s view is provided by Derrida’s obvious unwillingness to position himself for or against Marxism in the discussions of Spivak and Rogozinki’s view of his relation to Marxism during the political seminar at the aforementioned Colloque de Cérisy. See the discussion sections which follow Spivak and Rogozinski’s respective papers in Lacoue-Labarthe and Nancy, eds. Les fins de l’homme : à

183

In what sense, then, are deconstruction and justice related? In what sense can deconstruction be said to warrant and proscribe the calculations, determinations, positive laws and principles for which concrete contexts call? What is the status of a position-taking which is both calculable and incalculable? How can we make sense of the claim that deconstruction intervenes and yet “is not a general method”? I will begin a response to these questions by explaining the central ideas of “The Force of Law”, the first text to explicitly identify deconstruction with justice.

5.1.2 The force of law and justice: responsibility for our tradition

In her response to Derrida’s article “The Force of Law”, Nancy Fraser states that Derrida identifies two kinds of force or violence which positive law wields and two different ways of critiquing this force. The first type of force is contingent and socio- historical and can be identified by an analysis exposing the way in which the concepts law deploys themselves sustain social, economic and political forces incorrectly posited as external and prior to the law.48 The force or violence that law here wields is institutionalised force which is essentially transformable and which, in its current state, reproduces certain relations which, when identified, appear undesirable. Critique, here, takes the form of historical and empirical enquiry, which traces the relation of positive laws with concepts, interpretations, and social, economic and political relations, in order to identify elements of this set of interrelations which we might want to transform. Fraser refers to this first kind of force as “unnecessary” and to its critique as “political”. She believes that this critique can be effectively used to identify a range of contingent but systemic social processes, responsibility for which cannot easily be attributed to identifiable individual agents, culminating in extensive harms (malnutrition, medical neglect, environmental toxicity, and we can also add unemployment, poverty,

partir du travail de Jacques Derrida (Colloque de Cérisy, 23 juillet – 2 août 1980). See also Fraser’s “The French Derrideans: Politicizing Deconstruction or Deconstructing the Political?” 48 Nancy Fraser directs us to the section in “Force of Law” where Derrida writes that we can find in deconstructive analysis (at work, he notes, in the Pascalian critique) “the premises of a modern critical philosophy, even a critique of juridical ideology, a de-sedimentation of the superstructures of law which both hide and reflect the economic and political interests of the dominant forces of society. This would always be possible and sometimes useful”. Derrida, “Force of Law”, 241.

184 homelessness and so on) which are stratified in society in terms of gender, colour and class.49

The second type of force which Fraser believes Derrida identifies is “quasi- transcendental”, that is, a force necessary to the form of law itself.50 This force is identified by an analysis which resembles the method of reconstruction proposed by Habermas insofar as it, like Habermas’, terminates in the identification of a “quasi- transcendental” structure which necessarily characterises the form of law. The analysis first identifies two contradictory requirements which justice must satisfy and then indicates that law, in its determined form, is incapable of fully addressing both demands. Justice requires, first, that its law address the particular needs, requirements and elements of an individual’s particular case. It requires that its response take into consideration every particular relevant characteristic of an individual’s case. Second, justice must also subject everyone to its law, thereby expressing itself as necessary and universal, requiring that all be treated equally in accordance with its law. Now, these two contradictory demands cannot be resolved with the same determined law. Either the law corresponds absolutely to the specificity of an individual’s particular case (in which case it cannot be said to apply universally to all cases) or the law corresponds to all cases (in which it cannot be said to apply to that which makes the particular case specific). “Justice always addresses itself to singularity, to the singularity of the other, despite or even because it pretends to universality”.51 However, despite this difficulty, which cannot be resolved by reference to either one criterion, a decision must be made. This decision thereby passes through a moment of indetermination – what Derrida calls the “mystical foundation of authority” – which can be said to characterise the determination of the decision. This second type of analysis thus indicates that every decision whatsoever is structurally characterised by a moment of unjustified (yet

49 Fraser, “The Force of Law: Metaphysical or Political?”, 1328. For Fraser, the violences of contingent but systemic social processes are systematically reproduced on at least three levels, namely, by the essentially transformable processes of institutionalised practices of legal judgment (1328, 1310), the deep grammar of our legal reasoning (1329), and cultural background assumptions (1329). 50 Fraser directs us to the section in “Force of Law” where Derrida writes that the critical analysis with which he is concerned (also at work, he notes, in the Pascalian critique) “concerns perhaps a more intrinsic structure… [one that] a critique of juridical ideology should never neglect”. This critique highlights the constitutive relation of force and law “not in the sense, this time, that law would be in the service of force [as per the first critique which Fraser names “political], but rather in the sense of law that would main a more internal, more complex relation to what one calls force, power or violence”. Derrida, “Force of Law”, 241. 51 Derrida, “Force of Law”, 248.

185 necessary) force insofar as it resolves, in its determined way, an aporia which remains, in principle, irresolvable.

Laws, principles and decisions are determined and conditioned in at least two senses. First, determined laws, principles, and decisions are conditioned and deconstructible precisely in relation to a justice whose two contradictory demands have not yet been determined and which is thus unconditioned and not deconstructible. Second, law requires that its context be determined, that is, it requires that the relevant aspects of the case of law, absolutely unique in its particularity, be identified. It is precisely the determination of the relevant aspects of a particular case which enables law to correspond to the particularity of an individual’s case while also presenting itself as universal in the sense that all others are to be subject to it. On the one hand, every particular element of the context in question is relevant, since it is precisely in virtue of these elements that the context is unique. However, on the other hand, law must also determine which of these elements are to be relevant when judging other (similar) cases. It is the determination of the relevant context which allows cases, in principle irreducible to each other in their singularity, to be viewed as nonetheless similar and thereby subject to the same law.52 In this way, the determination of context, in principle indeterminable, is the condition for the formulation of laws and principles.

We can see a central difference between Derrida’s account of justice and that of Rawls and Habermas. The early Rawls claimed that his substantive theory of justice as fairness fully interpreted the relevant aspects of the moral notion of autonomy which is, for Kant, implied by justice. Principles, we saw, are to be publicisable and public, subject to the acceptance of moral persons appropriately represented as free and equal, rational and socially cooperative, and obligatory by reference to fully collective judgment. Rawls’ later work also defends the claim that overlapping consensus fully interprets the idea of an acceptable public viewpoint. In a similar vein, Habermas, too, believes that the discourse procedures he identifies correctly interpret Kant’s idea of a fully “impartial standpoint”. Now, Derrida is certainly not opposed to the view that

52 The problem of the need to determine the context of what is in principle indeterminable characterises both Derrida’s early and later work. His early work can be said to deal with this problem as it concerns the determination of the constitutive elements of a “text”. See in particular, “Signature, Event, Context”, in Derrida, Margins of Philosophy, 307-330. See also Derrida’s later discussion of this text and of the notion of context in “Afterword: Toward an Ethic of Discussion”, 111-160.

186 substantive principles and procedures of discourse are necessary: indeed, justice demands that we attempt to determine its two requirements, particularity and universality, by means of laws, principles and procedures. However, Derrida’s notion that a procedure or substantive principle simultaneously fails to take up justice’s demands adds substantially to the constructive and reconstructive approaches. Justice is not deconstructible because it is not determined: on the one hand, it demands its determination in laws, principles and procedures; on the other hand, it is not reducible to the laws, principles and procedures which it demands and, as such, it continually demands the critique of these same laws.

Returning to Fraser’s discussion of Derrida’s “Force of Law”, of the two types of critiques, Fraser believes that deconstruction privileges quasi-transcendental critique over political and empirical critique.53 Deconstruction pursues the analysis of a force which is necessary, constitutive and inescapable, and does not pursue the analysis of those forces which we have seen Fraser (and Thomas McCarthy) describe as unnecessary, contingent and essentially transformable. In so doing, Fraser argues, deconstructive intervention can in no way contribute to improving existing laws by exposing the systemic stratification of society by essentially transformable forces. For Fraser, the deconstructive identification of the irreducibility of force cannot help us to distinguish between the various determinations which such force takes, and yet, as Fraser correctly points out, distinguishing between determinations is necessary for the pursuit of justice, some determinations being clearly worse than others. For Fraser, “A normative conclusion cannot be derived from a quasi-transcendental premise”.54

Fraser errs, in my view, because she overlooks the fact that the second kind of critique (the critique which indicates the inescapability of force in the very determination of justice as law, from which she deems no normative conclusion follows) actually explains why social theorists, political scientists, sociologists and policy makers should

53 Fraser directs us to pages 241-243 of Derrida’s “Force of Law” for confirmation of her claim. 54 Fraser, “The Force of Law: Metaphysical or Political?” 1326. I confess to my astonishment at Fraser’s statement which appears difficult to resolve with her acceptance – implied throughout her work – of the Habermasian postulate (U) which, as we saw in Chapter 2, is also drawn from a quasi-transcendental analysis of the conditions of argumentative discourse. In other words, if she is able to accept the normative implications of Habermas’ quasi-transcendental principle (U), the fact that Derrida’s analysis is quasi-transcendental should not prevent her being able to draw normative implications from it.

187 even attempt to transform (by means of the “political” critique which Fraser defends) those empirical forms of force which produce systemic social disadvantage. In contrast to Fraser, I claim that for Derrida, the “quasi-transcendental” critique of a necessary distinction between justice, on the one hand, and positive law, on the other, indeed demands the practice of intervention, which Fraser defends or, in other words, the pursuit of the critique (political, empirical, sociological etc.) of positive law. That force is irreducible means that we, who determine justice as law, are responsible before all others for the forms which these determinations take. If the determination of justice as law can be shown, by means of “political” critique, to produce systemic social disadvantage then we, who determine these laws, are responsible for their systemic effects. Indeed, an individual and collective ethics of responsibility, for what Fraser calls the contingent forms of institutionalised force, is necessitated by the analysis of the irreducibility of force. The latter demands an ethics of individual and collective responsibility for the determinate forms such force takes and the determinate effects such force systematically produces. As Derrida writes, the notion that justice is not equivalent to its determination in laws is: anything but a neutralisation of the interest in justice, an insensitivity toward injustice. On the contrary, it hyperbolically raises the stakes in the demand for justice, the sensitivity to a kind of essential disproportion that must inscribe excess and inadequation in itself. It compels to denounce not only theoretical limits but also concrete injustices, with the most palpable effects, in the good conscience that dogmatically stops before any inherited determination of justice.55

This is clearly an ethics of responsibility – both individual and collective – for the empirical harms produced by the force which law inevitably deploys.56 It is precisely the irreducible gap between justice and law which demands that we – the inheritors, users and creators of determined laws – take full responsibility for those particular

55 Derrida, “Force of Law”, 248. 56 I am aware that Fraser explicitly contests the view that deconstruction leads to an ethics of responsibility for the determined forms which the deployment of law might take. Fraser also opposes the alternative interpretation of deconstruction in America, namely, that it leads to nihilism. See Fraser, “The Force of Law: Metaphysical or Political ?” 1326. Stated plainly, she believes that deconstruction involves no normative implication whatsoever. Obviously, I do not think that Fraser is correct. I prefer to side with Drucilla Cornell, who insists that we (“those who enact and enforce the law”) are left “with an inescapable responsibility for violence, precisely because violence cannot be fully rationalised and therefore justified in advance”. Cornell, “The Violence of the Masquerade: Law Dressed Up As Justice”, 1049.

188 forms of law which produce systemic disadvantage and injustice.57 In other words, what Fraser calls the “quasi-transcendental” critique is not, as she believes, without a normative implication. Rather, it clarifies why we – as social theorists, political scientists, sociologists, policy makers and, fundamentally, citizens – are indeed responsible for the empirical forms of force which laws inevitably produce and why the approach which Fraser calls “political” and “empirical” is necessary and desirable.

Deconstruction, by identifying the “quasi-transcendental” violence of determined law, does not constitute a withdrawal from political debate. Rather, it permits, indeed demands, intervention in political contexts. Deconstruction implies a responsibility, on the part of users and creators, for the form which law takes in specific contexts and for the systemic effects it has. I will suggest that deconstruction demands the analysis of the form and effects of those laws, concepts, principles and procedures which belong to our tradition, so as to identify present problems in order to negotiate the constitutive elements of that history for what Derrida will call “justice-to-come”. After explaining how Derrida analyses certain concepts and principles which belong to Kant’s practical philosophy (Section 2), I will consider how deconstruction demands intervention in political contexts (Section 3).

5.2 Deconstructive practice: interventions into Kant’s texts

In the Introduction to this thesis, I stated that I would indicate how Rawls, Habermas, Levinas and Derrida draw on Kant to develop their respective conceptions of justice. Let us now consider how Derrida interprets Kant’s texts on practical philosophy. The task is somewhat harder in Derrida’s case. Unlike the other figures considered, Derrida’s work on Kant does not contribute, at least directly, to the construction of

57 A number of recent studies evaluate deconstruction in terms of a new understanding of the relation to tradition, namely, deconstruction as responsibility, both individual and collective, for the inheritance and determination of our tradition, be it literary, philosophical, scientific, sociological, political. See Simon Glendinning’s “Inheriting “Philosophy”: The Case of Austin and Derrida Revisited”, in Arguing with Derrida, ed. Simon Glendinning (Oxford, UK, Blackwell Publishers Ltd, 2001), 9-33; Michael Naas’ Taking on the Tradition: Jacques Derrida and the Legacies of Deconstruction (Stanford, California: Stanford University Press, 2003); Samir Haddad, “Inheriting Democracy to Come”, Theory & Event 8, no. 1 (2005); and Matthias Fritsch, “Derrida’s Democracy to Come”, Constellations 9, no. 4 (2004): 574- 597.

189 principles, procedures or laws. However, it does help us to identify certain elements which I think are relevant to determining the relation between deconstruction and justice. I will present this relation as an intervention, in a particular tradition and context, with the intention of re-determining the elements of that tradition in view of what Derrida calls “justice-to-come”. The particular contexts for Derrida’s intervention will be certain of Kantian texts. Studying Derrida’s work on Kant’s practical philosophy will aid my indication of the sense in which deconstruction intervenes in determined texts or contexts, including political, social, economic contexts.58 I will indicate why deconstruction can be said to intervene without constituting a general method.59

Before considering Derrida’s interventions into Kant’s texts on practical philosophy, I should concede that I will not be dealing with all the texts in which Derrida deals with Kant. Given that this chapter is primarily interested in the relation between deconstruction and the concept of social justice, I have decided to not consider those texts which deal with subjects other than practical philosophy. I thus exclude Derrida’s various references to Kant’s theoretical philosophy,60 his reading of Kant’s aesthetics in the Critique of Judgment,61 and certain texts which deal only indirectly with Kant.62 I hope, by overlooking such texts in favour of those which take on themes from Kant’s practical philosophy, to deal more immediately with the relation between deconstruction, justice and decision. Although, as stated earlier, Derrida himself

58 “Text”, as Derrida indicates on a number of occasions, does not refer simply to literary texts (as in the case of Kant’s texts on practical philosophy) but refers to “text” in general as a context which must be determined but is, in principle, non-saturable. See Geoffrey Bennington, “Context”, in Geoffrey Bennington and Jacques Derrida, Jacques Derrida (Chicago, London: The University of Chicago Press, 1993), 84-97. 59 Derrida, “Interview”, 33. 60 Derrida’s early references to Kant’s theoretical texts include: sections in Derrida’s Edmund Husserl’s “Origin of Geometry”: An Introduction; the reference to Heiddegger’s reading of Kant’s theoretical philosophy in “Ousia and Gramm” in Derrida’s Margins of Philosophy (44-45); the reference to the “Idea” in the Kantian sense and the manner in which it regulates phenomenology’s capabilities in “The Ends of Man” in Derrida’s Margins of Philosophy (122-123); and the reference to transcendental illusion in Kant in Derrida’s Positions (33). 61 See Derrida’s extensive readings of Kant’s aesthetics in Truth in Painting, trans. Geoff Bennington and Ian McLeod (Chicago: Chicago University Press, 1987) and in “Economimesis”, trans. Richard Klein, Diacritics 11, no. 2 (1981), 3-25. Other references to Kant’s aesthetics include those in Writing and Difference, 7; in Of Grammatology, 290-291; and in Memoirs of the Blind: The Self-Portrait and Other Ruins, trans. Pascale-Anne Brault and Michael Naas (Chicago, London: University Of Chicago Press, 1993). 62 See for example, Jacques Derrida, “Interpretations at War: Kant, the Jew, the German”, trans. Moshe Ron, in Acts of Religion, ed. Gil Anidjar (New York, London: Routledge, 2002), 135-189. This text deals less with Kant and more with the interpretations of Kant offered by Herman Cohen and Franz Rosenzweig.

190 indicates that every one of his textual interventions – including those which deal with aesthetics, writing, the sign etc. – are concerned “at least obliquely”63 with justice, I would stress that focussing exclusively on those texts which bear directly on Kant’s practical philosophy will facilitate the identification of the relation between deconstruction and decision-making in concrete social and political contexts. Moreover, my choice of texts will also facilitate the task of identifying the central difference between the interpretations of Kant’s practical philosophy offered by Rawls, Habermas and Levinas. As I noted in the Introduction, Habermas himself believes that “apart from all the politics, it is the philosophical reference to an author like Kant that connects me to Derrida”,64 a view which is shared by Derrida who confirms that “the reference to a certain Kant… means a great deal to Habermas and me”.65 Thus, it is worth identifying what is at stake in Derrida’s different interventions into Kant’s texts on practical philosophy.

5.2.1 Kant’s treaty: apocalyptical without apocalypse

In 1981, in “On a Newly Arisen Apocalyptic Tone in Philosophy”, 66 Derrida examined Kant’s terms, in two late articles, for a treaty to end the dispute, once and for all, between the critical philosopher and the mystagogue. 67 Both are to resolve their dispute by a shared commitment to rational faith in the existence of freedom. Such a commitment allows the mystagogue to maintain faith in God (as subjectively rational for finite human beings) on the condition that this faith is pursued for practical reasons

63 Derrida, “Force of Law”, 235. See also 237. 64 Habermas, “America and the World: A Conversation with Jürgen Habermas”. 65 Derrida, “Honesty of Thought”, 301. 66 Jacques Derrida, “On a Newly Arisen Apocalyptic Tone in Philosophy”, trans. John Leavey Jr., in Raising the Tone of Philosophy: Late Essays by Immanuel Kant, Transformative Critique by Jacques Derrida, ed. Peter Fenves (Maryland: The John Hopkins University Press, 1993), 117-172. 67 Immanuel Kant, “On a Newly Arisen Tone in Philosophy”, trans. Peter Fenves, in Raising the Tone of Philosophy: Late Essays by Immanuel Kant, Transformative Critique by Jacques Derrida, ed. Peter Fenves (Maryland: The John Hopkins University Press, 1993), 51-82 (first published in 1796); and Immanuel Kant, “Announcement of the Near Conclusion of a Treaty for Eternal Peace in Philosophy”, trans. Peter Fenves, in Raising the Tone of Philosophy: Late Essays by Immanuel Kant, Transformative Critique by Jacques Derrida, ed. Peter Fenves (Maryland: The John Hopkins University Press, 1993), 83- 100 (first published in 1796). Kant develops similar themes in other late articles, including “On Philosophical Exaltation” (first published in the 1780’s), “On a Newly Raging Spirit of Domination in Philosophy” (first published in the early 1790’s), “On Exaltation and the Remedy for it” (first published in 1790), and “Preface to Reinhold Bernhard Jachmann’s “Testing of Kantian Religious Philosophy” (first published 1797). These articles appear in English translation in “Other Exaltations”, trans. Peter Fenves, in Raising the Tone of Philosophy: Late Essays by Immanuel Kant, Transformative Critique by Jacques Derrida, ed. Peter Fenves (Maryland: The John Hopkins University Press, 1993), 101-116.

191 alone. Kant renounces the mystagogue’s use of a superior tone: it is inappropriate because rational faith is, in principle, accessible to all those who are endowed with practical reason and not merely to a chosen few. We will see, in what follows, that Derrida does not intend to assess the defence Kant offers for the terms of the treaty. Rather, he wishes to indicate something about the very structure and function of Kant’s defence. Derrida proposes, in effect, that Kant’s treaty is a solution to a particular, contextual problem – namely, the problem between critical philosopher and mystagogue – and is not a solution which can end dispute in philosophy once and for all. Consequently, Derrida suggests that the “superior” or “apocalyptic” tone which Kant renounces in the discourse of the mystagogue is itself employed by Kant. Moreover, Derrida will go on to propose that philosophy itself employs an “apocalyptic” tone: it presents its solution as the necessary end of philosophical dispute although the terms of this dispute are always local and particular.

Let’s see how this claim is worked out in Derrida’s analysis of Kant’s texts. In “On a Newly Arisen Superior Tone in Philosophy”, Kant argues that the assumption of a superior tone on the part of the philosopher is unacceptable and that a treaty of a rational nature, between mystagogue and critical philosopher, would require the superior tone to be renounced. The terms of this treaty are announced in “Announcement of the Near Conclusion of a Treaty for Eternal Peace in Philosophy”. Together, the texts present four claims. First, Kant claims that it is the mystagogue as “would-be philosopher” who assumes the superior tone on the basis of an apparently direct acquisition of knowledge. For the mystagogue, direct knowledge of the supersensible (“the secret”) is possible for a select few via intellectual intuition, feeling, “intimation” or presentiment.

Next, Kant proposes that the superior tone employed by the mystagogue should not be tolerated: the supernatural “revelation” in direct intellectual intuition promises a surrogate of a knowable object and, as such, leaps beyond those limits proper to theoretical reason. As we know, for Kant, the immortality of the soul, the existence of God and individual freedom are not objects of knowledge which can be cognised and determined by the faculties of sensibility and the understanding. As such, they are

192 problematic for theoretical reason.68 Consequently, the mystagogue must renounce the possibility of claiming knowledge about such objects which lie beyond the limits of human cognition. Kant concludes that taking a superior tone on the basis of a supposed knowledge of such objects is inappropriate.

Third, Kant claims that critical philosophy within the limits of reason alone is not compatible with the assumption of any sort of “superior tone”. Such philosophy is correctly founded on an “inalienable right to freedom and equality in matters of reason alone”.69 Critical philosophy “lowers its voice through the critique of its own rationality, and its claims are inevitably forced into moderation (modesty)”. 70

Finally, Kant suggests that a treaty between critical philosopher and mystagogue is possible because critical philosophy (the practice of reason within its proper limits) is not incompatible with Ideas concerning the supersensible, the mystagogue’s “secret”. After first demonstrating the impotence of the mystagogue’s theoretical proof of the existence of God, the immortality of the soul, and the idea of duty,71 Kant then validates objective practical reasons for the assumption of the existence of such Ideas.72 He thus proposes that the critical philosopher and the mystagogue can resolve their dispute by a shared commitment to practical faith in the existence of such objects. On the one hand, the treaty requires the mystagogue to concede that theoretical knowledge of the supersensible is not possible. On the other hand, the treaty allows the mystagogue to pursue their faith for practical reasons alone. The mystagogue’s “secret”, simply put, is the rational Idea of practical freedom, which reason must assume if moral action is to be even possible.73 Kant believes that his opponent should be able to accept the rational

68 I have discussed Kant’s account of why the postulates of practical reason are problematic for theoretical reason in a number of sections in this thesis. See Chapter 2.1.3 for a discussion, in the context of Habermas’ interpretation, of Kant’s account of the primacy of reason in its practical use over reason in its theoretical use. See Chapter 4.1.2 for a discussion, in the context of Levinas’ interpretation, of Kant’s account of the primacy of practical reason and the status of the postulates of practical reason. 69 Kant, “On a Newly Arisen Tone in Philosophy”, 8:385. 70 Ibid., 8:403. 71 Kant believes that he demonstrates the impotence of the theoretical proof of the mystagogue’s metaphysical “secret” in the Critique of Pure Reason. 72 Kant, “Announcement”, 8:416. Kant believes that he demonstrates the objective validity of the moral law and its reciprocally implied idea of freedom, as well as the subjective validity of the practical postulates (the idea of the immortality of the soul and of God as the guarantee of the distribution of happiness in accordance with virtue) in the Critique of Practical Reason (see Chapter 4.1.2 for further discussion). 73 Kant, “On a Newly Arisen Tone in Philosophy”, 8:402, 403.

193 necessity of the Idea of freedom because the Idea is compatible with the practical necessity of the existence of God and the immortality of the soul. The mystagogue need only affirm a practical, and not a theoretical, basis for their Ideas.

Kant claims commitment to rational faith should permit a state of eternal peace between mystagogue and critical philosopher. The mystagogue’s superior tone must be renounced because its “secret” – rational faith in the existence of freedom – is, in principle, available to anyone who correctly employs their faculty of reason. 74

We will see, in what follows, that Derrida does not intend to assess the defence Kant offers for the terms of the treaty. He wishes rather to indicate something about the structure of this defence. Derrida contests the idea that Kant’s proposed solution succeeds in ending the dispute once and for all. Consequently, he claims that Kant inadvertently employs the “superior tone” – or, as Derrida calls it, the “apocalyptical” tone – which he renounces in the discourse of the mystagogue.

As I indicated in the introduction to this section, Derrida does not intend to evaluate Kant’s arguments on their own terms. Rather, he reflects on the role that Kant’s proposal plays as a solution to a particular contextual problem in what Derrida elsewhere refers to as a “pragmatically determined situation”.75 Kant’s problem is, as indicated, the dispute between critical philosopher and mystagogue. The solution, Derrida suggests, and Kant’s accompanying declaration of the “end” of the dispute is itself structurally conditioned by the determination of an “inadmissible”, which is justified by nothing other than the fact that it resolves a contextual dispute between Kant (the critical philosopher) and the mystagogue, a particular case of dispute which depends on the particular nature of Kant’s critical philosophy and the specific claims of the mystagogue.

Derrida’s argument appears to contain four claims. First, he states that the superior tone itself is not really what Kant denounces. Rather, Kant denounces a certain type of superior tone, that is, a manner of giving oneself airs, elevating oneself in superiority

74 Ibid., 8:403; and Kant, “Announcement”, 8:416. 75 Derrida, “Afterword: Toward an Ethic of Discussion”, 150-151.

194 and thereby marking the death of the critical philosophy which accords freedom and equality to all. Derrida points out that Kant does not denounce the superior tone, as such, when it is legitimate.76 Kant writes that highly placed persons who devote themselves to philosophy and employ a superior tone nonetheless have merit even if they make mistakes and believe they have reached the peaks of metaphysics. These persons correctly believe that reason’s truths are available to all and condescend to reason with others “in the same shoes of civic equality”.77 This suggests that it is not the superior tone as such which Kant denounces but the superior tone which does not discriminate between reason and fiction.

Second, the superior tone which is denounced is, for Kant, the tone from which a select few can expect some benefit.78 The superior tone is employed by the mystagogues in the false belief that they alone have access to salvation as a consequence of their initiation. Derrida suggests that the treaty which Kant proposes is also one in which a select few can expect some benefit, namely, the critical philosopher who subscribes to the Kantian architectonic, on the one hand, and the mystagogue who wishes to pursue his or her faith in God, on the other. In other words, the determination of a dispute always ascribes value to certain aspects of the context over others. Kant asks the mystagogue to concede that the moral law is not externally imposed and, in return, the mystagogue can keep his or her faith in the supernatural.

Third, given that it is not the superior tone which is denounced but an illegitimate or fictive tone, the legitimate superior tone is to be marked, states Derrida, by its distinctions with these other tones. It determines itself in opposition to such tones, excluding them as illegitimate.79 The truce, as such, requires that both parties accept the inadmissibility of certain tones, namely, those tones which neither party can resolve with their own position. In the case of Kant’s terms for peace in philosophy, the inadmissible is the mystification or personification of the moral law by the mystagogue

76 Derrida, “On a Newly Arisen Apocalyptic Tone in Philosophy”, 123-124. 77 Kant, “On a Newly Arisen Tone in Philosophy”, 8:394. 78 Derrida, “On a Newly Arisen Apocalyptic Tone in Philosophy”, 125. 79 Derrida, “On a Newly Arisen Apocalyptic Tone in Philosophy”, 128-129, see also 141-143.

195 as a law which is given to me by God, rather than a law which I give to myself. The critical philosopher only accepts those laws which reason alone provides.80

Derrida’s final point is that the postulation of some “inadmissible” always lies at the basis of a proffered truce.81 The truce sets its terms in opposition to other terms which are denounced as illegitimate. Derrida suggests that a truce therefore employs an “apocalyptic” tone. By determining those elements which the two parties share in common, the philosophical truce determines as “inadmissible” those aspects which are not shared, thereby marking, in apocalyptic tone, the “end” of philosophical dispute. Kant’s solution presents itself, on the one hand, as universal and necessary insofar as it determines the solution for all similar cases. However, Derrida reminds us that it is also particular: the solution depends on the particular coordinates which both critical philosopher and mystagogue share. When these coordinates are themselves the subject of a new dispute, then new determinations, new truces and new apocalyptic tones are required for the determination of a new “end” to the dispute.

Thus, like the determination of justice as law, Kant’s solution must correspond to the particularity of the dispute and also claim to be necessary as such. Derrida’s intervention into Kant’s text thus identifies an aporia much like the one which Derrida identifies between the two conflicting demands of justice. On the other hand, the terms of the truce are determined as a function of the specific dispute in question and, as such, the truce cannot, as Kant claims, end the dispute once and for all. Like the determination of justice as positive law, the determination of the terms for dispute resolution seeks to unite two contradictory demands: first, the demand that dispute resolution determine a solution specific to the particularity of the context (the specific debate between mystagogue and the critical philosopher who subscribes to all aspects of

80 Kant, “On a Newly Arisen Tone in Philosophy”, 8:405-406. In his own text, Derrida does not directly question the acceptability of the critical philosopher’s “inadmissible”, that is, the mystification of the moral law as one which is given to me rather than given by my reason alone. Levinas would not accept the inadmissibility of Kant’s inadmissible: the pragmatic position of a self commanded by the Other person is not equivalent to the pragmatic position of a self who formulates his or her own law and justifies this law to the Other. Derrida does not enter into the debate here over whether the inadmissible should indeed be deemed inadmissible but rather wants to suggest that the identification of an inadmissible always structures dispute resolution. 81 “This is one of the suggestions that I wanted to submit for your discussion: wouldn’t the apocalyptic be a transcendental condition of all discourse, of all experience even, of every mark or every trace?” Derrida, “On a Newly Arisen Apocalyptic Tone in Philosophy”, 156-157.

196 Kant’s architectonic) and, second, that such resolution present itself as necessarily applicable to any such case which presents these aspects. On the one hand, dispute resolution presents its solution as the absolute condition for peace between the parties involved. However, insofar as its solution is specific to the case in point, the solution is not entitled to present itself as an absolute condition for eternal peace. Where Kant claims that true philosophy need not employ the superior tone, Derrida claims that all philosophy deploys an “apocalyptical” or “superior” tone insofar as it claims to be absolute while, in actual fact, negating this claim by determining itself to the particular case at hand. Philosophy always attempts to account for particularities in terms of universal principles and thereby remains subject to the possibility of revision insofar as its determined form, like positive law, cannot unite its solution to the particular case with the claim to absolute universality. In this sense, philosophy itself – including Kant’s critical solution to the dispute with the mystagogue – necessarily deploys the “superior tone” which Kant condemns. Philosophy presents itself, Derrida suggests, as apocalyptical without apocalypse, that is, as a history of ends without absolute end.

“Faith and Knowledge: The Two Sources of “Religion” at the Limits of Reason Alone” (originally published 1996),82 the second of Derrida’s two texts which deal with Kant’s account of rational faith, analyses the defence which Kant offers in “Religion within the Boundaries of Mere Reason” of the rational origin of “reflective faith”. As he did with justice and law, Derrida suggests that the determined content which Kant attributes to faith, that is, rational faith in the practical law of freedom, is not equivalent to the two contradictory elements which the concept of faith (like justice) attempts to resolve. Rational faith combines, on the one hand, the idea that the objective principle of moral action actually exists (since such existence is necessary if moral action is to be at all possible) and, on the other hand, the idea that the fundamental principle of moral action does not exist (since, if knowledge of the existence of the objective principle were indeed possible, then faith would not be necessary). This means that the determination of the content of the principle which grounds the possibility of moral action cannot receive any absolute justification by reference to knowledge as such. According to Derrida, Kant ascribes a particular, determined content to faith, namely, the law of

82 Jacques Derrida, “Faith and Knowledge: The Two Sources of “Religion” at the Limits of Reason Alone”, trans. Samuel Weber, in Acts of Religion, ed. Gil Anidjar (London, New York: Routledge, 2002), 40-101.

197 freedom which the self thinks for itself. This law of freedom serves as the supreme principle of morality. However, Kant’s account of the content of rational faith is persuasive only if we accept all parts of his critical philosophy. Derrida thus suggests that the possibility of determining the nature of the objective principle of moral action (what he calls “revealability”) is not equivalent to the determined form which Kant gives to this possibility (what Derrida calls “revelation”). The content of faith is not equivalent to its determination in historically determined forms of religion, including Kant’s account of rational faith.

For Kant, faith in the existence of freedom and in the existence of the postulates – God and the immortality of the soul – is necessary because it is grounded on rational, critical reflection.83 As we saw earlier in the thesis, Kant denies, on the one hand, that speculative, theoretical knowledge of the existence of God, the soul and freedom is possible. However, faith in the existence of such objects is necessary if the will is to be practically effective. If it is to determine itself to action in accordance with the moral law, then it must assume the existence of freedom. Moreover, faith in the existence of God and in the immortality of the soul is subjectively necessary for rational beings who are also materially preoccupied with their own happiness. For such beings to be sufficiently motivated to act on the moral law, they must assume the existence of those objects which would allow beings, who are materially preoccupied, to attain happiness through the disinterested moral pursuit (see Chapter 4.1.2). However, such objects – freedom, God and the immortal soul – are problematic for theoretical reason which intuits nothing with which to fill its concept. The assumption of the existence of such objects equates to reflective faith, that is, faith within the limits of rational reflection alone.

By determining rational faith as faith in the existence of freedom, God, and the immortality of the soul, Kant is able to dismiss, in absolute terms, both the theoretical existence and the supposed practical necessity of other alternatives.84 Rational faith as

83 Immanuel Kant, “Religion within the Boundaries of Mere Reason”, in Religion within the Boundaries of Mere Reason: And Other Writings, trans. and ed. Allen Wood and George de Giovanni (Cambridge, UK: Cambridge University Press, 1998), 31-192 at 6:52. 84 Kant dismisses faith in all objects other than those he identifies as “sheer aberrations of a reason going beyond its proper limits”. Kant, “Religion”, 6:53. As Derrida remarks, Kant thereby argues against the theoretical existence and practical necessity of works of grace (imagined, inward experience); miracles

198 true, non-dogmatic “revelation” is nothing other than the revelation of freedom as law.85 According to Kant, the revelation of freedom as law does not depend on the historical and empirical revelation which the initiates and mystagogues claim to undergo, and thus agrees with the rationality of a pure practical reason. Reflective faith favours good will beyond all knowledge, whereas the dogmatic faith of the initiates ignores the difference between faith and knowledge. Kant thereby divides religion into two families: the religion of cult which depends on the initiation of members to its teaching by means of historical revelation, and moral religion which subordinates knowledge to action and insists on the difference between practical faith and theoretical knowledge.86

Now, Derrida suggests that Kant cannot determine in any absolute sense the content of faith as the law of freedom. The law of freedom (non-dogmatic “revelation” for Kant) does not resolve the two elements which the concept of rational faith contains. Rational faith presents itself, on the one hand, as possible (the determination of the content of faith is necessary insofar as it alone makes moral action possible) and, on the other hand, as impossible (insofar as no particular determination can claim absolute necessity since this would rule out the very need for faith itself). Kant’s determination of the content of rational faith is not equivalent to the two aspects of rational faith insofar as it presents itself as the only possible option. In contrast, as he did with the concept of justice, Derrida argues that “revealability”, that is, the possibility and necessity of determining the content of rational faith is not equivalent to its historical determination. The difference between, on the one hand, the religions of cult which Kant opposes and which depend on the initiation of members to their teachings, and, on the other hand, the moral and rational religion, which Kant defends, is not as significant as Kant believes. His own determination of the content of rational faith, as the law of freedom, itself depends on our initiation to the context of his theoretical and practical thought, and to the distinction which this thought draws between the understanding and sensibility, the rational and the empirical, the noumena and the phenomena, and so on.

(alleged external experience); mysteries (the supposed enlightening of the understanding with regard to the supernatural); and means of grace (the operation upon the supernatural by means of thaumaturgy). Kant, “Religion”, 6:52-53. 85 Kant, “On a Newly Arisen Tone in Philosophy”, 8:402-403. 86 Kant, “Religion”, 6:13.

199 Both of Derrida’s interventions uncover a structure which closely resembles the structure of justice in its relation to law. To recall, Derrida was keen to underline both the possibility and impossibility of resolving justice’s conflicting demands with positive laws, principles and procedures. In relation to Kant’s claim that his critical philosophy provides the terms for eternal peace in philosophy, Derrida points out, on the one hand, that the terms which are to end philosophical dispute are presented as the absolute conditions for peace between the parties involved; however, insofar as the solution is specific to the case in point, it is not entitled to present itself as an absolute condition for lasting peace. In relation to Kant’s determination of the necessary content of rational faith – the law of freedom – Derrida opposes the idea that the content of rational faith can be determined once and for all. Instead, he argues that, like the distinction between justice and determined laws, the historical determination of faith (including the one which Kant provides) cannot resolve faith’s two conflicting demands.87 Rational faith is, in this sense, independent of all religion, and provides the basis for the critique of historical religion, including Kant’s account of religion. Derrida affirms Kant’s account of practical faith beyond its historical determination while distancing himself from Kant’s determination of the content of this faith as the law of freedom.

5.2.2 Kant on friendship: the conflict between benevolence and respect

In Politics of Friendship, following the theme of his seminar in 1988 and 1989,88 Derrida undertakes a historical and genealogical analysis of the concept of friendship, and fraternal friendship in particular, in its link to democracy. As Derrida explains, the history of democracy is articulated, via the concept of friendship, to a network of related concepts, namely, family, fraternity, love, enmity and hostility. Beginning with Aristotle’s characterisation of democracy as a community modelled on the friendship between brothers, Derrida analyses the contradictory demands united by the concept of fraternal friendship, reflecting on a remark attributed to Aristotle, “O my friends, there

87 Derrida thus argues that “revealability” (the possibility of revelation, of taking a determined form) is not equivalent to “revelation” (the historical determination of “revealability”). See Derrida, “Faith and Knowledge”, 53. See also Catherine Malabou, “Derrida on Faith and Knowledge”, presented at the Seminar with Samuel Weber and Catherine Malabou, Northwestern University, March 2005. 88 Derrida, Politics of Friendship. Originally published in 1994. Earlier texts on the theme of politics and friendship include Jacques Derrida, “The Politics of Friendship”, trans. Gabriel Motzkin, The Journal of Philosophy 85, no. 11 (1988): 632-44 and Derrida, “Politics and Friendship”.

200 is no friend”. Derrida demonstrates that insofar as the concept of fraternal friendship informs the concept of democracy which we have inherited, the concept of democracy also unites conflicting demands. Derrida examines the great canonical discourses on friendship which have contributed to the diffusion of certain axioms and hierarchies which characterise the philosophical concept of friendship deployed, in different forms, by philosophers before Aristotle (Plato etc.) and well beyond Aristotle (including, among others, Epicurean and Stoic figures, Cicero, certain Church Fathers, Diogenes, Florian, Montaigne, Michelet, Kant, Nietzsche, Blanchot, Heidegger and Schmitt). Derrida’s consideration of the concept of moral friendship which Kant develops in his “Conclusion of the elements of ethics: On the most intimate union of love with respect in friendship”89 is situated in this genealogical approach to the relation between fraternal friendship and democracy.90

Considered in its perfection, Kant defines moral friendship as “the union of two persons through equal mutual love and respect”. 91 On the one hand, the principle of love, that is, the benevolent and sympathetic disposition to the other person’s well-being, is a necessary element of such union insofar as it bids the one to draw close to the other and to take on “the other’s best interests”.92 On the other hand, there is no friendship without the “respect” of the other as a moral person. As Derrida points out, the moral law makes the Idea of the equality of other in general an obligation and demands that the friend be respected as a moral person subject to law.93 Love is legitimate only when its subjective, benevolent maxims receive objectivity by their capacity to be determined as universal laws, that is, as laws which can be generalised to others in general. Whereas love can be regarded as attraction, respect requires that friends “stay at a proper distance from each other”.94 Perfect friendship thus demands no limitations on intimacy and limitation according to law. For Derrida, this double dimension, on the one hand, maintains the absolute singularity of the other in friendship. On the other hand, the relation to the singularity of the other also passes through the universality of law,

89 Kant, “The Metaphysics of Morals”, 6:469-474. 90 Derrida’s discussion of Kant’s concept of friendship takes place in Chapters 9 and 10 of Politics of Friendship, 252-265 and 271-277. 91 Kant, “The Metaphysics of Morals”, 6:469. 92 Ibid., 6:470. 93 Derrida, Politics of Friendship, 275, 252. 94 Kant, “The Metaphysics of Morals”, 6:470.

201 thereby appealing to the capacity for the subjective maxim to apply to others in general.95 Insofar as these demands cannot be resolved, the Idea of perfect friendship, although practically necessary, is, as Kant concedes, unattainable in practice.96 At this point, Kant indicates that Aristotle’s statement “O my friends, there is no friend” can be understood to allude to the difficulty of resolving these conflicting demands.97 As he did with justice and faith, Derrida suggests that historical forms of friendship can thus be critiqued in relation to one or other of the conflicting demands which friendship must satisfy.

On the one hand, Derrida suggests that Kant’s presentation of friendship constitutes a rupture in the continuum of the dominant tradition insofar as it cannot be easily reconciled with the tradition’s values of proximity and unity, expressed paradigmatically by Montaigne for whom a harmonious and complete friendship is one in which friends “blend one into the other in so perfect a union that the seam which has joined them is effaced and disappears”.98 On the other hand, Derrida demonstrates that Kant nonetheless confirms the canonical tradition’s emphasis on proximity and unity in friendship by identifying moral friendship with brotherhood. Despite his initial concession that perfect friendship is not attainable, Kant now claims that moral friendship does take place in history. Joining the tradition from Plato to Montaigne, Cicero to Hegel, including Aristotle, Kant now explicitly ties the friend-brother to moral virtue and justice by claiming that “fraternity” unites in its concept both benevolence for the other and equal respect for all.

As indicated earlier, Derrida intervenes to point out that our inherited concept of democracy is articulated via concepts which have not always been fully democratic,

95 Derrida, Politics of Friendship, 254. 96 Kant, “The Metaphysics of Morals”, 6:469. 97 Ibid., 6:470. 98 Michel de Montaigne discusses his own friendship for Etienne La Boétie in “On Friendship”, in Essays, trans. John Michael Cohen (Harmondsworth: Penguin, 1958), 91-105 at 97. In his own account of his friendship with Paul de Mann, Derrida resists Montaigne’s use of “unity” to account for friendship, recognising instead the inevitable resistance of de Man to his own attempts to assimilate him. See Jacques Derrida, Mémoires: For Paul de Man, trans. Cecile Lindsay, Jonathan Culler, Eduardo Cadava and Peggy Kamuf (New York: Columbia University Press, 1986). For Derrida, that one cannot achieve perfect unity with one’s friend is not a failing of friendship but is rather “as it should be” (xvi); the necessary condition for the very possibility (and impossibility) of friendship. For further discussion of Derrida’s account of friendship in relation to these texts see Penelope Deutscher’s “Mourning the Other, Cultural Cannibalism, and the Politics of Friendship (Jacques Derrida and Luce Irigaray)”, Differences: A Journal of Feminist Cultural Studies 10, no. 3 (1998): 159-184.

202 namely, fraternity. One example he provides is the French constitution for a republic whose grounding concepts are liberty, equality and fraternity. His intention is not to denounce fraternity but rather to indicate, on the one hand, that it presents itself as a resolution of the demands for equal respect and for benevolence or love when in actual fact these demands are conceptually irreducible, the one to the other. The concept is formulated within a particular history as that which, in that history, seems best to negotiate those demands which exceed that history. On the one hand, the concept presents itself as all-inclusive in scope and thereby promises to challenge the limits of natural, literal, genetic and sexually determined (etc.) forms of fraternity. In this sense, the concept designates a fraternity beyond historical forms of fraternity. On the other hand, Derrida suggests that we should nonetheless be aware of its history and the exclusions which it produced in its various historical deployments. Indeed, if the concept of fraternity can be drawn upon to critique historical forms of fraternity, the question arises as to why the concept need still be designated “fraternity” as such. We might wish, in new contexts, to employ terms and concepts which seem more appropriate to the challenge of resolving the conflicting demands of love and respect.99 The concepts which articulate the demands of democracy, insofar as they also attempt to resolve the conflicting demands of equal respect and benevolence or love, justice and care (in Levinas’ sense), universality and particularity, and so on, are also both possible and impossible, necessary and historically contingent. Insofar as democracy includes contradictory demands, its content cannot be given once and for all, nor can its conceptual or teleological end be determined once and for all. Democracy is thus structurally “to-come”.

5.2.3 Hospitality: beyond expectations and subject to law

From 1997 onwards, Derrida published a number of texts which focus, in part, on Kant’s presentation of cosmopolitical law in terms of a hospitality conditional upon the rule of law.100 Derrida deals with Kant’s account of hospitality in sections of Adieu to

99 Derrida, Politics of Friendship, 262. 100 Kant deals with cosmopolitan hospitality in “Toward Perpetual Peace”, “Idea for a Universal History with a Cosmopolitan Purpose”, and “Section III. Cosmopolitan right”, of “Public Right” in “The Metaphysics of Morals”, (6:352-353).

203 Emmanuel Levinas, On Cosmopolitanism and Forgiveness, Of Hospitality, “De l’hospitalité: Entretien”, “The Right to Philosophy from a Cosmopolitan Point of View”, “Politics and Friendship: A Discussion with Jacques Derrida”, “Intellectual Courage: An Interview by Thomas Assheuer”, “Fidélité à plus d’un”, “Une hospitalité à l’infini”, “Responsabilité et hospitalité”, “Hospitality, Justice and Responsibility: A Dialogue with Jacques Derrida”, “Hostipitality”, and “Hospitality, Perfectibility, Responsibility”.101

In sections of each of the above texts, Derrida examines the concept of hospitality which can be offered to strangers within the limits of Kant’s account of right. According to Kant, the actions of persons are deemed legitimate only when they are lawful, that is, when they can coexist with the external freedom (freedom of action) of all other persons in accordance with a universal law.102 This requirement constitutes Kant’s principle of right. It is in accordance with this principle that hospitality can be offered and received. As he did with the concept of justice, Derrida will suggest that Kant’s notion of hospitality, conditional upon law, can be criticised by reference to hospitality’s unconditioned form. Hospitality, which is worthy of its name, expects nothing in return and adds no conditions to its offer.

101 Derrida, Adieu to Emmanuel Levinas; Jacques Derrida, On Cosmopolitanism and Forgiveness, trans. Mark Dooley and Michael Hughes (London, New York: Routledge, 2001); Jacques Derrida, Of Hospitality, trans. Rachel Bowlby (Stanford: Stanford University Press, 2000); Jacques Derrida, “De l’hospitalité: entretien”, in Sur parole: Instantanés philosophiques (Paris: Editions de l’Aube, 1999), 63- 74 ; Jacques Derrida, “The Right to Philosophy from a Cosmopolitan Point of View”, in Negotiations: Interventions and Interviews (1971-2001), trans. and ed. Elizabeth Rottenberg (Stanford: Stanford University Press, 2002), 329-342; Jacques Derrida, “Politics and Friendship: A Discussion with Jacques Derrida” (Centre for Modern French Thought, University of Sussex, 1 December 1997); Jacques Derrida, “Intellectual Courage: An Interview by Thomas Assheuer”, trans. Peter Krapp, in Culture Machine 2 (2000); Jacques Derrida, “Fidélité à plus d’un : mériter d’hériter où la généalogie fait défaut”, Cahiers Intersignes 13 (1998): 221-265; Jacques Derrida, “Une hospitalité à l’infini”, in Autour de Jacques Derrida: Manifeste pour l’hospitalité, ed. Mohammed Seffahi (Paris: Éditions Paroles de l’Aube, 1999), 97-120 ; Jacques Derrida, “Responsabilité et hospitalité”, in Autour de Jacques Derrida: Manifeste pour l’hospitalité, ed. Mohammed Seffahi (Paris: Éditions Paroles de l’Aube, 1999), 121-124 ; Jacques Derrida, “Hospitality, Justice and Responsibility: A Dialogue with Jacques Derrida”, in Questioning Ethics: Debates in Contemporary Continental Philosophy, ed. Richard Kearny and Mark Dooley (London: Routledge, 1999), 65-83; Jacques Derrida, “Hostipitality”, trans. Barry Stocker and Forbes Morlock, in The Derrida-Habermas Reader, ed. Lasse Thomassen (Chicago: The University of Chicago Press, 2006), 208-230; and Derrida and Deutscher, “Hospitality, Perfectibility, Responsibility”. This is not a complete list of Derrida’s texts on the theme of hospitality, although it does include the central texts on hospitality, which also consider Kant’s account of cosmopolitical law. 102 Kant, “The Metaphysics of Morals”, 6:230.

204 For Kant, there are two distinct spheres of right; private and public. Private right, according to Kant’s literal definition, is right to acquire something external as one’s own. The right to secure possession is legitimate because it can be universalised without contradiction, 103 be this logical contradiction (contradiction in conception), or practical contradiction (contradiction in the will).104 The right is logically possible insofar as the action remains conceivable in a system of nature in which it is a natural law. If all persons pursue their right to possession as a law of nature, one’s own right remains logically possible. Moreover, the action to possess is practically possible insofar as its universalisation does not thwart its own purpose. When everyone enacts their right to secure possession, the right to possess does not become ineffectual.

However, in a state of nature, possessions can be acquired only provisionally. Although it remains a legitimate right, private right is not yet enforced.105 The condition of a human being in a mere state of nature is lawless and, without a coercive, public system of right, one’s private right to acquire possessions is open to contestation by force at any time. 106 It is thus legitimate to coerce others to leave their warring state of nature and live under public laws, in a state in which all may enjoy their right to possess. 107 The formal condition of lawful coercion is the idea of a “general will”, which Kant refers to as “public justice” or “distributive justice”. 108

Kant argues that there are three forms of rightful condition and that hospitality limits the third. 109 The first is the right of individuals, within a people, in relation to one another. The system of public right which characterises this condition is the right of a state. It specifies those laws which, subject to the idea of the general will, are to regulate the action of the whole of the individuals which together constitute a state. The second is

103 Ibid., 6:245-308. 104 Kant states, in the “Groundwork” (4:424), that willing universalised maxims may give rise to a contradiction in conception or a contradiction in the will. See Christine Korsgaard’s article “Formula of Universal Law”, for a careful consideration of the meaning of “contradiction” in Kant’s formula of universal law. Korsgaard, Creating the Kingdom of Ends, 77-105. 105 Kant, “The Metaphysics of Morals”, 6: 264-266 (§15). 106 In a state of nature, Kant writes, a person “already wrongs me… by the lawlessness of his condition”. Kant, “Toward Perpetual Peace”, 8:349. 107 Public right is “a system of laws” for “a multitude of human beings, or for a multitude of peoples which, because they affect one another, need a rightful condition under a will uniting them, a constitution, so that they may enjoy what is laid down as right”. Kant, “The Metaphysics of Morals”, 6:311. 108 Ibid., 6:306. 109 Ibid., 6:311.

205 the right of states in relation to each other, what Kant refers to as the right of nations. It specifies those rights which are to regulate the actions of states in relation to one another. The right of nations is once more limited to those laws which can coexist with the external freedom of states.110 Finally, we are lead, argues Kant, to the idea of right for a state of nations or cosmopolitical right, that is, the right of nations in relation to each other, once again limited to those laws which coexist with the external freedom of nations.

Kant defines cosmopolitan right in terms of hospitality: nations, states and persons are to live lawfully according to “conditions of universal hospitality”. 111 Cosmopolitan right follows from an intelligible idea which private right to possession contains in its mere concept, namely, the intelligible idea of original possession-in-common of the surface of the earth with all other persons. “Taking first possession, states Kant, has therefore a rightful basis, which is original possession in common”. 112 “The original community of land, and with it of things upon it, is an idea which has objective (rightfully practical) reality”. 113 This is because one cannot legitimately acquire part of the earth’s surface unless one assumes that the act of acquisition is, in principle, acceptable to others. This assumption thereby subjects the act of empirical acquisition to the intelligible consent of all persons. The intelligible consent of all persons is, in turn, possible only on the basis of another intelligible idea, namely, that all persons first possess the surface of the earth in common with all others. If the intelligible idea of the consent of all persons is the condition for empirical acquisition, empirical acquisition of land can be thought only as possession of a part of a whole to which each person originally has a right. Persons thus stand, Kant argues, in a community of possible physical interaction, “that is, in a thoroughgoing relation of each to all the others of offering to engage in commerce with any other”.114 Cosmopolitical right defines the right of each person to attempt to engage in commerce without being treated as an

110 Kant’s preliminary articles for perpetual peace provide more detail: Lawful relations between states and nations cannot allow secret reservations for future withdrawal. No state may be acquired by force, inheritance, or purchase, nor forcibly interfered with. No warring state shall allow hostile acts which make mutual trust impossible in the future. The articles are intended to protect the right of persons, states and nations to the determination of individual and general will. Kant, “Toward Perpetual Peace”, 8:343- 438. 111 Ibid., 8:328. 112 Kant, “The Metaphysics of Morals”, 6:251. 113 Ibid., 6:251. 114 Ibid., 6:352.

206 enemy,115 or, as Kant puts it in “Toward Perpetual Peace”, “to make use of the [intelligible] right to the earth’s surface, which belongs to the human race in common, for possible commerce”.116

Cosmopolitan right thus requires that nations, states and persons offer each other the right to visit the land of another without being treated with hostility. “He can be turned away if this can be done without destroying him, but as long as he behaves peaceably where he is, he cannot be treated with hostility”. 117 However, this right to visit is not the right to be a guest. This would require a special beneficent pact – conditional on right – to make the foreigner a member of the household for a certain time.118 The right to hospitality does not extend beyond the right to seek commerce with inhabitants of other lands.

Derrida argues that Kant’s cosmopolitical hospitality is conditional on whether it can coexist with right. It must be offered only in accordance with the rule of law and with the self-determination of the general will on the part of nations and states. Kant insists that if the principle of outer freedom limited by law is lacking in any one of the three forms of rightful condition, the entire framework collapses.119 The commitment to outer freedom limited by law prohibits the invocation of any supreme sovereign authority, and must rather depend on an alliance of free association which can be renounced at any time.120 The conditionality of Kantian hospitality on right means that the stranger who is granted right of visit must already live lawfully in accordance with right and must compromise neither the general lawful will of the host state whose boundaries he enters, nor its lawful relations with other states and nations. In modern terms, this means that the stranger must have a passport.

In contrast to Kant, Derrida identifies two conflicting demands which the structure of hospitality implies. On the one hand, hospitality expects nothing in return and, as such,

115 Ibid., 6:352. 116 Kant, “Toward Perpetual Peace”, 8: 358. 117 Ibid., 8:357-358. 118 Ibid., 8:358. 119 Kant, “The Metaphysics of Morals”, 6:311. 120 Ibid., 6:344.

207 welcomes the other person in his or her absolute particularity. Hospitality is proffered in the absence of all expectations and conditions. Derrida remarks: In the hospitality without conditions, the host should, in principle, receive even before knowing anything about the guest. A pure welcome consists not only in not knowing anything or acting as if one knows nothing, but also in avoiding any questions about the Other’s identity, their desire, their rules, their language, their capacity for work, for integration, for adaptation… From the moment that I formulate all of these questions, and posit these conditions… the ideal situation of non-knowledge is broken.121

If it were to be dependent on the satisfaction of expectations concerning status, provenance, passport, or name, it would no longer be hospitality because it expects something in return. As Penelope Deutscher remarks, hospitality fails as such if it is offered only under duress, or to fulfil a debt, or out of legal or even moral obligation.122 Unconditional hospitality would have to be offered to an unlimited number of unknown Others to an unlimited extent. The implications are formidable: in an unconditional hospitality, as Derrida himself suggests, we must welcome the possibility that the Other whom we welcome “might be an assassin, might disrupt my home... might come to make revolution”.123

On the other hand, Derrida does not think that an act of pure hospitality can actually be achieved. On the most basic level, this is because it is impossible to welcome the other without identifying that Other in some way. Once hospitality is conditioned on identification of the Other as a person to whom hospitality can be offered or, on Kant’s account, as a person subject to law, it is no longer unconditional. Derrida thus suggests that the relationship between unconditional hospitality and its conditioned form resembles justice: We have here the same structure as we saw previously between the law and justice. They are absolutely heterogeneous but indissociable. I cannot think of a conditional hospitality without having in mind a pure hospitality.124

Derrida thus indicates his reservations concerning the conditioned form of Kantian hospitality and suggests that the irreducible gap between unconditional hospitality and its conditional form allows the latter to be critiqued by reference to the former. Cosmopolitan hospitality, determined in modern times as constitutional international

121 Derrida, “Une hospitalité à l’infini”, 98. 122 Derrida and Deutscher, “Hospitality, Perfectibility, Responsibility”, 94. 123 Derrida, “Une hospitalité à l’infini”, 98. 124 Derrida and Deutscher, “Hospitality, Perfectibility, Responsibility”, 98.

208 law, thus calls for and exceeds its conditional determination. Like justice, unconditional hospitality can only take place – is only possible – in conditioned form. However, insofar as its form is conditioned, unconditional hospitality is also impossible in conditioned form. By reflecting on the conflicting demands which hospitality includes in its concept, deconstruction maintains a critical attitude toward all conditional forms of cosmopolitical hospitality. This attitude can be contrasted with that of Habermas who believes that the Kantian project of international law based on the sovereignty of nation- states “sustains itself by an idealism that is free of illusions. The form of modern law has, as such, a clearly moral core which makes it a “gentle civilizer” (Koskenniemi) in the long run, whenever law comes to be the medium through which a constitution is formed”.125

5.2.4 The regulative Idea: im/possible

In still more recent texts of the early 2000s – “Autoimmunity: Real and Symbolic Suicides. A Dialogue with Jacques Derrida”, Rogues: Two Essays on Reason, and “For A Justice To Come: An Interview with Jacques Derrida” – Derrida expresses a reservation concerning Kant’s notion of regulative Ideas insofar as these are presented as a priori necessary ideas, be these theoretical or practical. Derrida expresses three reservations with regard to Kant’s regulative ideas and to regulative ideas more loosely.126

First of all, by presenting a certain “end” of history as objective and necessary, the regulative Idea “remains in the order of the possible”, an ideal possible which defines the objective, theoretical end of an infinite history. In his various analyses, we have seen Derrida suggest that the regulative Ideas which Kant presents as a priori necessary (justice; the law of freedom as the end of pure practical reason; fraternity as a practically necessary idea; the practical necessity of the ideas of freedom, God and the

125 Habermas, “America and the World: A Conversation with Jürgen Habermas”. Habermas refers us to Martti Koskenniemi’s book The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge: Cambridge University Press, 2001). 126 Jacques Derrida, “Autoimmunity: Real and Symbolic Suicides - A Dialogue with Jacques Derrida”, in Philosophy in a Time of Terror: Dialogues With Jürgen Habermas and Jacques Derrida, ed. Giovanna Borradori (Chicago: The University of Chicago Press 2003), 85-136 at 133-135; Derrida, Rogues, 83-86; Jacques Derrida, “For A Justice To Come: An Interview with Jacques Derrida”, trans. Ortwin de Graef, Brussells Tribunal, Ris Organgis, April 5, 2004, http://www.brusselstribunal.org/pdf/Derrida_EN.pdf

209 immortality of the soul; and the a priori regulative idea of conditional hospitality for persons, states and nations) are both possible and impossible.

We also saw, on at least one occasion, that Derrida also believes that the Ideas, which Kant describes as regulative, need not necessarily be referred to in the manner in which he does. For example, we recall Derrida’s suggestion that if the concept of fraternity designates a fraternity beyond historical forms of fraternity, the question arises as to why the concept still needs to be designated “fraternity” at all. There, Derrida appeared to be proposing that Kant’s description of the regulative idea as “fraternal friendship” might be described in terms and concepts which seem more appropriate to the challenge of resolving the conflicting demands of unconditional love and equal respect.127 In this sense, Derrida does not believe that the very nature of the regulative Ideas can actually be provided in the a priori necessary terms which Kant suggests. This is what Derrida means when he says he doubts that the regulative idea “remains in the order of the possible”, as an ideal possible which defines the objective end of an infinite history.

When Derrida speaks of critiquing determined laws, religions, friendship relations, forms of hospitality and democratic constellations by reference to unconditional concepts like justice, rational faith, fraternal friendship, hospitality and democracy, he does not mean to suggest that the latter concepts are themselves somehow absolute. Rather, deconstruction is held to employ such concepts only because it takes place as an intervention into the specific contexts and traditions which deploy them. In other words, it is bound by the simple fact that it takes place as intervention to employ the language which belongs to such contexts and traditions. On the one hand, the unconditional concepts which Derrida deploys in his texts on Kant are necessarily deployed insofar as they belong to the tradition in which deconstruction intervenes and, as such, deconstruction cannot but make use of such concepts. On the other hand, and for this very reason, such concepts cannot be said to be necessary in any absolute sense. They do not describe the a priori necessary end of an infinite history but rather belong to the particular intervention which is deconstruction.

127 Derrida, Politics of Friendship, 262.

210 The concepts which we have seen Derrida deploy in the above analyses (justice, unconditional hospitality, democracy-to-come etc.) are thus not regulative ideas in the Kantian sense.128 In the case of democracy-to-come, Derrida states that it is not an idea of some determinate condition which corresponds to the telos or essence of democracy. For the sake of democracy itself, democracy’s ideal can in no way prescribe its own future. And yet, it is to have some sort of future, one which determines in some conditioned sense, the demands which the concept contains. On the one hand, the idea of democracy, the investment and exercise of power (-cracy) by the people (demos) is central to the tradition in which deconstruction intervenes and thus, deconstruction can only intervene in this tradition by employing the idea. On the other hand, to specify in any absolute sense, the necessary content and historical form which democracy should take would effectively rule out democracy itself: it would determine, in advance, what must be left to the people to determine. Thus, democracy-to-come has no telos or essence as such. We cannot say, in advance, what form it will take. Derrida writes, “So I often speak of a teleology or strategy “with no end” ”.129

Derrida’s second reservation concerning the regulative idea is that the use of “regulative” tends to suggest a rule to be followed or a consistent set of principles to be applied. In the case of democracy-to-come, he insists that we cannot determine, in any absolute sense, the procedural or substantive content of democracy. Indeed, I will argue, in Chapter 7, that Habermas himself comes to recognise that rational consensus is impossible. He effectively defers the conceptual resolution of the freedom of the moral person as a distinct individual with the equality of all, to a moment in the future. Nor can we view Rawls’ two principles of justice for the basic structure of society as rules which, when applied, guarantee democracy in the present. In Chapter 7, I will also suggest that Rawls comes to concede that justice is perfectible, in principle. He effectively recognises that, we, the citizens who take up an impartial standpoint, modelled by the original position, must affirm that its content remains open to contestation, in principle. Democracy is structurally “to-come”, and the particular determinations which it actually takes essentially criticisable by reference to the very idea which such propositions deploy.

128 Derrida, Rogues, 37, 82. 129 Jacques Derrida, “Response to Bennington”, in Arguing with Derrida, ed. Simon Glendinning (Oxford: Blackwell Publishers, 2001), 52-56 at 54.

211

Derrida’s third reservation concerns the structure or “architectonic” of reason to which Kant’s regulative ideas belong.130 Derrida wants to insist that ideas like justice-to-come, rational faith, fraternal friendship, hospitality and democracy-to-come are not necessary in the sense that the Kantian ideas are necessary to Kant’s conceptual apparatus. Derrida’s reservation is expressed in comments which are simply too brief and underdeveloped to consider here. However, I have already suggested that we can understand Derrida’s reservation in the following way. Whereas Kant believes that the regulative ideas are necessitated by reason alone and are, in this sense, universal to all rational finite beings, Derrida does not claim that the ideas which he deploys are in any sense inherently necessary. They are necessary insofar as deconstruction intervenes in Kant’s texts and cannot but employ those concepts which belong to his tradition. However, for this reason, they are also unnecessary and particular insofar as they are specific to a certain tradition and context.

5.3 Deconstruction in political contexts: critiquing the Security Council veto

I have argued that Derrida’s idea that “Justice does not end with law” 131 implies a responsibility – both individual and collective – for the determined forms which justice takes. In this final section, I will suggest that this responsibility demands a rather different pragmatics of intervention to the one which Rawls and Habermas defend. Justice, determined as laws, principles and procedures (in both the Rawlsian and Habermasian sense), must be continually interrogated and re-negotiated for the sake of justice itself. I will here consider the relation between deconstruction and the political as a practice of contextual intervention. By viewing deconstruction as an intervention which deploys those theoretical tools which are internal to a given context or tradition, we can make sense of Derrida’s claim that deconstruction intervenes but is “not a general method”. 132 In this chapter, we have already remarked that deconstruction’s intervention – its vocabulary, concepts, and positions – are determined as a function of

130 Derrida, Rogues, 85. 131 Derrida, “Autoimmunity: Real and Symbolic Suicides”, 133. 132 Derrida, “Interview”, 33.

212 the specific situation or text in which it intervenes. We remarked that Derrida’s interventions into Kant’s texts actually deployed the latter’s own concepts to critique his conceptual system from within.133 With regard to political situations and traditions, then, it appears that deconstruction’s critical edge requires the redeployment of those conceptual resources which belong to the political situations and traditions which require determination.

On the one hand, by intervening in a specific political context, deconstruction will need to take on a certain, determined form. On the other hand, this particular form will not necessarily be generalisable to other contexts: it is not a general method but rather “must be different in every language, in every idiom, in its relationship to every single work”.134 This does mean that deconstruction will be recognisable across its different interventions via its pursuit of the constitutive interconnection between contextual intervention and theory. However, given that deconstruction intervenes each time in different contexts, the form this intervention takes is different each time, determined in ways which are specific to such contexts.135

It is precisely this sort of contextual interventionist practice which comes to the fore in Derrida’s own analyses of distinctly political contexts. Unlike Habermas, who requires that the determination of political decision satisfy the universal procedures of discourse, which he argues are implied by the practice of argumentation itself, Derrida does not start out with a particular theory whose universal criteria must be satisfied. Rather, for Derrida (or so I argue) the criteria which sustain the critical analysis of a political context are identified by a conceptual and genealogical analysis of the conceptual system which the particular political context deploys. Once again, against Nancy Fraser, I believe that deconstructive intervention is able to identify constellations of political, social and empirical force which consistently stratify society into hierarchies which are

133 I believe that we can say something similar of Derrida’s his early interventions in literary and philosophical contexts insofar as the concepts which he deploys and the positions which he takes are there determined by the context of the analysis. To argue this point, however, I would need to actually study Derrida’s early texts and that is beyond the scope of this chapter. 134 Derrida, “Interview”, 33. 135 My presentation of deconstruction here coincides with that of Lasse Thomassen in Deconstructing Habermas (4-6). Thomassen uses his presentation to preface his own intervention into Habermas’ account, which presents Habermas’ account as itself a determined intervention which cannot structurally take into consideration all that its determination requires.

213 essentially transformable and which, by reference to the basic concepts which the political order deploys, can indeed be criticised. As Derrida writes in Rogues: The expression “democracy-to-come” does indeed translate or call for a militant and interminable political critique. A weapon aimed at the enemies of democracy, it protests against all naïveté and every political abuse, rhetoric which would present as a present or existing democracy, as a de facto democracy, what remains inadequate to the democratic demand, whether nearby or far away, at home or somewhere else in the world, anywhere that a discourse on human rights and on democracy remains little more than an obscene alibi so long as it tolerates the terrible plight of so many millions of human beings suffering from malnutrition, disease, and humiliation, grossly deprived not only of bread and water but of equality or freedom, dispossessed of the rights of all, of everyone, of anyone.136

Against Nancy Fraser, deconstructive intervention, Derrida claims, is capable of undertaking a critique which is not mere “quasi-transcendental” but also social, empirical and, as Fraser herself puts it, political.

Here, I will present an example of just one such intervention which functions in this way, namely, Derrida’s critical analysis, developed in the essays “The Last of the Rogue States” and “(No) More Rogue States”,137 of the difference between, on the one hand, the ascribed role of the Security Council in the context of the United Nations’ responsibilities to the sovereignty of nations and the sovereignty of persons, and, on the other hand, the actual function and effects of the Security Council Veto for the democratic sovereignty of the United Nations General Assembly. Derrida states in no uncertain terms that the fate of democracy to come, in its relation to world order, depends on the “rectification” of the “monstrosity” that is the Security Council which, with its veto power, “wields all the force of effective sovereignty”138 and reduces the General Assembly’s capacity to pursue its designated function. There are many other concrete examples which I could have chosen. As I indicated in the Introduction to this thesis, Derrida argues against the death penalty,139 defends freedom of speech against censorship,140 actively supports the concept of “cities of refuge”,141 defends the future of

136 See “The Last of the Rogue States”, in Derrida, Rogues, 86, emphasis added. 137 Ibid., 78-94 and 95-107. 138 Ibid., 98. 139 Derrida and Roudinesco, “Death Penalties”. 140 Derrida and Roudinesco, “Politics of Difference”. 141 Derrida, Cosmopolites de tous les pays, encore un effort!, 12-14; and Derrida and Deutscher, “Hospitality, Perfectibility, Responsibility”, 100-101.

214 the family and, with it, reproductive technologies,142 and argues against the traditional formulation of the distinction between human and animal in the discourse of right. 143 Moreover, with Habermas, he ascribes to Europe a role as a key player in international relations,144 defends a certain ideal of the university,145 and analyses the limits of the democratic majority principle in the context of the 1992 Algerian elections.146 However, I certainly cannot deal with all of these topics and I believe that Derrida’s critique of the Security Council Veto is particularly useful for my purposes. First, the example follows nicely on from Derrida’s critique, in Section 2.3, of Kant’s cosmopolitical law of conditional hospitality insofar as Derrida’s critique of the Security Council Veto is part of his larger critique of the aporia between commitment to the sovereignty of states, on the one hand, and commitment to the sovereignty of persons as embodied by the Universal Declaration of Human Rights, an aporia which he believes is also at work in the Kantian or post-Kantian conception of the cosmopolitical. Secondly, Derrida’s verdict – that the monstrosity of the Security Council must be rectified – coincides with that of Habermas who agrees that “the world organisation is often nothing more than a paper tiger…, dependent on the willingness of the great powers to cooperate”.147 The example thus enables us to see how deconstructive intervention can even generate very similar positions to those which Habermas believes are implied by a discourse theoretical approach to law.

The first of these essays, “The Last of the Rogue States”, traces the concepts which are currently deployed to propose and resolve dispute between nations. Both post-Kantian cosmopolitan trends and those of international institutions appear to subscribe to the

142 Derrida and Roudinesco, “Disordered Families”. 143 Derrida and Roudinesco, “Violence Against Animals”. 144 Derrida and Habermas, “February 15, or What Binds Europeans Together: A Plea for a Common Foreign Policy, Beginning in the Core of Europe”; Derrida, The Other Heading: Reflections on Today’s Europe; and Derrida, “D’où vient l’Europe?” 145 Derrida, “The Principle of Reason: The University in the Eyes of its Pupils”; Jacques Derrida, “The University Without Condition”, in Without Alibi, trans. Peggy Kamuf (Stanford: Stanford Univ. Press, 2002), 202–37; Jacques Derrida, Inconditionnalité ou souveraineté. L'Université aux frontières de l'Europe (Athens: Editions Patakis, 2002); Jacques Derrida, Right to Philosophy: Who’s Afraid of Philosophy (Volume 1), trans. Jan Plug (Stanford: Stanford University Press 2002); and Jacques Derrida, Right to Philosophy: Eyes of the University (Volume 2), trans. Jan Plug (Stanford: Stanford University Press 2004). 146 Derrida, Rogues, 33. 147 Jürgen Habermas, “Fundamentalism and Terror – A Dialogue with Jürgen Habermas”, in Philosophy in a Time of Terror: Dialogues With Jürgen Habermas and Jacques Derrida, ed. Giovanna Borradori (Chicago: University of Chicago Press 2003), 25-44.

215 “democratic model” (that is, the equality and freedom of sovereign states). On the post- Kantian cosmopolitan model, democracy comes to be rooted in the turbulent terrain of relations between states who pursue a model of “cosmopolitanism”, according to the principles of the equality and freedom of the sovereign nations. We noted earlier that, in Kant, the actions of nations in relation to one another are to be limited to those laws which coexist with the external freedom of nations. Kant does not endorse the idea of a global rightful condition because the principles of equality and freedom prohibit interference in the affairs of individual sovereign nations. For this reason, we noted that the only law which could be universally imposed on free nations was the cosmopolitical law of conditional hospitality. Nations, Kant insists, are to come together as a federalism of free states in which they freely determine their general will in accord with the law of outer freedom. The modern version of international law, institutionalised in bodies like the League of Nations, the United Nations, the International Court and so on, also appears to employ a democratic model founded on the declaration of human rights, on the one hand, and the equality and freedom of sovereign nations, on the other. Derrida wishes to indicate that these principles are not conceptually resolvable. Taking the UN, Derrida reminds us that the UN’s renewed declaration of human rights at the end of World War 2 (which remains its essential democratic reference) contradicts the principle of nation-state sovereignty (which also remains intact). It is by democratic reference to the Universal Declaration of Human Rights which the UN tries to impose limits on the sovereignty of nation states. This reference is at the basis of the demand for the creation of an International Criminal Court.

Given that the principle of the sovereignty of nation-states is not resolvable with the principle of the sovereignty of the person embodied in the declaration of human rights, Derrida suggests that the concept of sovereignty in our current tradition includes contradictory demands. Sovereignty is both possible and impossible: the sovereignty of nation states opposes in principle the sovereignty of persons and vice versa.

In “(No) More Rogue States”, Derrida conducts an analysis of the specific forums in which sovereignty is institutionalised in the body of the UN, considering the operation of the UN General Assembly and the Security Council Veto. First, the decisions of the General Assembly are made democratically after deliberation and must be passed by a

216 majority of the member states elected by the assembly, members states which are each sovereign. Secondly, however, the democratic sovereignty of the UN General Assembly has no executive and coercive force and thus no effective sovereignty. This suggests that it is the Security Council, with its veto, who has the power to make binding or enforceable decisions. The role of the council is still tied up with the one it was originally designed to play when the UN was instituted in 1945 at the end of WWII by the victors who still remain the only permanent members of the Security Council. At that time, these included the US, the UK, the USSR (Russia) (and now, also France and China), since these were the great world powers in possession of nuclear weapons. The power of the other serving members of the council is limited insofar as these members (now fifteen) are not permanent but are elected by the General Assembly to serve for a period of two years. They vote to agree or veto the democratically determined decisions of the UN General Assembly. As Derrida explains, three countries (in order of frequency, the US, the UK and France) have made extensive use of that veto in the numerous situations where their vote did not seem to serve their interests. As such, “everything gets played out in the appropriation and exercise of this power by one or another member of the Security Council”.148 Derrida believes that the UN General Assembly’s procedures, without the Security Council, are currently able to negotiate the contradictory demands of, on the one hand, state sovereignty and, on the other hand, the sovereignty of persons embodied in the Universal Declaration of Human Rights. However, in order to be able to pursue the determination of these contradictory demands, the “monstrosity” of the Security Council must be rectified insofar as the latter tends to disproportionately privilege responsibility to their own individual state sovereignty over and above their responsibility to the declaration of human rights. Derrida urges this rectification and, moreover, the ascription (in some way) of an executive and coercive force to the UN General Assembly who, as it stands, has no effective sovereignty. This is not because Derrida supports the traditional concept of sovereignty. On the contrary, he is critical of the traditional concept of sovereignty. However, the ascription of sovereignty to the UN General Assembly would constitute, in his view, a strategic attempt to counter the undesirable effects of nation-state sovereignty with a more distributed version of sovereignty.

148 Derrida, Rogues, 99.

217 This example, I would suggest, indicates how deconstruction indeed redeploys the conceptual resources that belong to the political situation and tradition which the UN and its Security Council embodies, with a view to determining which specific elements of the current determination warrant a conceptual and practical reformulation. The task of uncovering and emphasising the undecidable status and function of the determination of justice in the form of laws, principles and procedures, thus demands the conceptual and practical reformulation of current calculations, a pragmatics of political intervention which, as contextual and historical, cannot be generalised as a “method”.

I now claim to have demonstrated the central difference between the concepts of justice which Rawls, Habermas, Levinas and Derrida support. Rawls and Habermas subscribe to the “art of the possible”. Drawing attention to the practical need for “reasonable faith in the possibility of a just constitutional regime”,149 both philosophers attempt to determine the objective content of Kant’s ideal of impartiality among autonomous individuals. In contrast, Levinas believes that the dissimulated practical intent of Kant’s moral principle, that is, ethical responsibility for the particular Other person, cannot be formulated as a law which I freely give to myself, nor does it equate to the value of impartiality. Levinas thus insists on the impossibility of satisfying ethics by means of impartial procedure. As Derrida’s interventions into Kant’s texts reveal, he subscribes to both projects. Whilst defending the need to engage in the task of substantively and procedurally determining the content of justice, he also insists that no local determination can ever be said to be fully just.

I have argued that deconstruction can allow, and indeed requires, the careful analysis of concrete, empirical and political contexts. In so doing, I hope to have defended deconstruction against some of the early criticisms developed by Habermas, Fraser, McCarthy, Benhabib and Gutmann, among others. In the context of Derrida’s later writings, which deal concretely and practically with pressing social and political questions, the criticism that deconstruction “withdraw[s] from the specificity of politics and of empirical social research” cannot be maintained.150 Focussing on just one of Derrida’s many engagements with concrete political contexts, I explained that, by

149 Rawls, Political Liberalism, 172, emphasis added. 150 McCarthy, “The Politics of the Ineffable: Derrida’s Deconstructionism”, 115.

218 analysing the difference between the ascribed role of the Security Council and the actual function and effects of the Security Council veto, Derrida identifies those specific elements of the current determination which warrant a conceptual and practical reformulation. It is clear that deconstruction is not an “airy abstraction”, as McCarthy claims.151 I am now ready to turn to the second stage of my argument wherein I defend the view that each project requires, and can indeed complements, the other.

151 Ibid., 116.

219 Chapter Six

Defending the Constructive Moment against Levinas

Having demonstrated the central difference between the theories which Rawls, Habermas, Levinas and Derrida defend, carefully laying out the central aspects of their interpretations of Kant’s practical philosophy in its relation to the concept of social justice, I now turn to the second stage of my thesis. Here I argue that each project requires the other. The “art of the possible”, to which constructivism and reconstructivism subscribe, cannot be pursued without attention to the pragmatic implications of a deconstructive account which also emphasises the impossibility of exhausting justice’s demands in the form of laws, procedures and principles. Conversely, the deconstructive account demands the pursuit of those pragmatic strategies with constructivism and reconstructivism defend.

In Chapter 4, I argued that, according to Levinas, justice ultimately fails to take up its ethical responsibilities by virtue of the simple fact that it makes use of the principle of impartiality among persons, treating persons as equals and not unique particulars. In this chapter, I will demonstrate that Levinas’ emphasis on justice’s inevitable failure is ultimately unsatisfying. For reasons internal to his own account of ethics, Levinas’ insistence on the impossibility of justice must be supplemented by the constructive or reconstructive belief in justice’s possibility. I suggested, in the Introduction to the thesis, that, like the Socratic gadfly who goads the sluggish steed into action, emphasising the failure of justice can provoke a certain vigilance with respect to justice’s determined forms. However, without further qualification, such vigilance surrenders its critical potential, unable to distinguish between better and worse forms of failure.

220 In the Introduction, I distanced myself from those early sympathisers of deconstruction who saw Derrida’s work as the antithesis of normativity. I distance myself from Levinas here, for much the same reason. We saw Spivak defend deconstruction as a politics of revolution, one which questions normativity itself. Although Lacoue-Labarthe and Nancy pursue a different line of critique, we saw that they, too, agree that deconstruction and normativity are antithetical. Deconstructive analysis uncovers the ungrounded force of all normative authority, thereby provoking vigilance with regard to the inevitable violence of the political. I dismissed this view. Were deconstruction to reject normativity, it would effectively compromise the very critical function which Spivak, Lacoue-Labarthe and Nancy believe it can fulfil. I will now bring this very same criticism to bear on Levinas’ account of non-formal and non-normative ethical obligation. It is hard to see how emphasising the failure of normative justice can assist us to create a world in which ethical obligations are satisfied. Vigilance compromises its function if it prevents one from pursuing an attractive social ideal. We must nonetheless assume the possibility of justifying, to each other, certain norms over others, even as we acknowledge the impossibility of ever achieving a justice which satisfies Levinasian ethics. To defend this possibility is to pursue the constructive moment. Unfortunately, this moment is not pursued by Levinas himself.

In particular, I will argue that Levinas must commit, with Rawls and Habermas, to an ideal of the moral person as a bearer of those capacities which enable the assumption of an impartial standpoint. Although the ideal of moral personhood is not equivalent to Levinas’ concept of the person as a unique particular, it is nonetheless implied, I will argue, by his own account of ethics.

In the first section of this chapter (6.1), I will explore the extent to which Levinas’ emphasis on non-formal responsibility for the particular Other can provoke a certain vigilance with respect to justice’s determined forms. I will do so by approaching Habermas’ theory from a Levinasian perspective, identifying which aspects of the discourse-theoretical account can be said to fail to pursue non-formal ethical obligation.

However, in the intermediary section (6.2), I will argue that the Levinasian perspective surrenders its critical potential because it overemphasises justice’s failure. For Levinas,

221 every determination of justice fails to take up its ethical responsibilities. By consistently defending the non-equivalence of the ethical relation and the principle of equality which justice deploys, Levinas denies himself the resources to defend certain public principles, laws and procedures over others. I will argue that this is inconsistent with his own account of obligation to a plurality of Others, which requires that he subscribe to a constructive or reconstructive project. As Levinas himself recognises, ethical obligation for the Other and the Third requires us to commit to the value of impartiality and of the equality of Others. I will identify two central differences between ethical responsibility and the commitment to impartiality and fairness, first, a difference in intention and second, a difference in the concept of the person which each theory deploys. I will suggest that Levinas needs to commit to the goal of impartiality and the ideal of moral personhood. Moral personhood, I argue, defines individuals not as particular, unique Others, but rather as the bearers of those capacities which enable them to take up an impartial standpoint. Although commitment to an ideal of moral personhood is not equivalent to responsibility before the individual as a particular, unique Other, it is nevertheless implied by Levinas’ account and must be explicitly pursued.

In the final section (6.3), I will provide reasons to support the view that Levinas implicitly presupposes and must explicitly affirm an ideal of moral personhood something like the one which Rawls defends. When faced with plural Others, we need to view ourselves as moral persons capable of taking up an impartial standpoint. Doing so commits us to a virtue like the Reasonable and to an ideal of moral personhood which coheres with certain minimal conditions of mental and physical identity. As moral persons capable of committing to an impartial standpoint, we must also commit to shared political values, and the project of wide reflective equilibrium. Unfortunately, in his own work, Levinas does not follow his recognition of the value of impartiality through to its logical conclusion, that is, he does not affirm the need for an ideal of moral personhood. This problem leaves him unable to distinguish between better and worse forms of justice and thereby blunts the critical edge of ethical responsibility towards Others. Without an ideal of moral personhood, all Levinas can say is that justice fails.

222 By arguing that Levinas needs to affirm the possibility of justice and an ideal of moral personhood, I hereby preface the move to Chapter 7, which will argue that Derrida pursues both the “art of the possible” and the “art of the impossible”. Unlike Levinas, Derrida equips himself with resources to intervene in a determined tradition with a view to defending principles, laws and procedures over others. He thereby subscribes to the essential premise of the constructive and reconstructive approach, namely, faith in the possibility of justice.

6.1 Habermas’ impartial standpoint: the transgression of asymmetrical responsibility

Before arguing that Levinas requires an ideal of the moral person akin to the one which Rawls defends, I would like to suggest that Levinas’ reflection on justice’s inevitable failure can nevertheless provoke a certain vigilance with respect to justice’s determined forms. I will do this by evaluating Habermas’ discourse theoretical approach from a Levinasian perspective. I will suggest that at least three of Habermas’ central claims are rendered problematic by the non-formal ethical obligation which Levinas discovers in Kant’s moral principle.

The first claim which Levinas would question is Habermas’ methodological supposition that two participants in interaction (A and B) are able to achieve a shared intersubjective (and thus objective) standpoint on the validity claims implied by their interaction (6.1.1). When, by taking the position of an observer, participants have reason to believe that their understanding of the interaction is shared by their partner, then an objective viewpoint has been achieved and all expectations are fulfilled in a reciprocal manner. Levinas would ask whether the shift in analysis from participant to observer perspective can indeed maintain the essential characteristic of the ethical experience which, from a “participant” or subjective perspective, Kant designates as “moral interest”.

The second of Habermas’ claims which would be questionable from a Levinasian perspective is the view that “[o]ur first sentence expresses unequivocally the intention

223 of universal and unconstrained consensus” (6.1.2). 1 For Levinas, we will see, the first word comes from the Other and calls into question the very possibility of my comprehending it, as such.

The third claim that Levinas would problematise concerns the moral principle of argumentation (U), the necessary and universal presupposition of communication (6.1.3). Habermas claims that (U) is fully intersubjective and not the product of monological reason. Levinas would doubt that Habermas’ discourse ethics actually succeeds in escaping the monological reason of the “philosophy of consciousness” and would not agree that (U)’s formalisation is fully intersubjective.

The final claim that would appear untenable, from a Levinasian perspective, is the view that the discourse principle (D) guarantees the fairness of any conceivable substantive agreement which is reached under its conditions (6.1.4). Levinas would respond that ethical obligation is not equivalent to (D)’s requirement that valid norms meet with the approval of all affected in their capacity as participants in practical discourse.

After considering each claim from a Levinasian perspective, I will then turn to section 6.2 and reflect on the limitation of a perspective which emphasises the inevitable failure of justice. On Levinas’ account, the problem lies with the very ideal of impartiality itself, which is never equivalent to ethical obligation. And yet, as Levinas himself recognises, impartiality is nevertheless necessary. Levinas does not balance his insistence on the failure of impartiality with a consideration of the necessity and possibility of achieving an impartial standpoint. This problem defines the limits of Levinas’ decision to emphasise the failure of impartiality and prefaces the need to turn to Derrida who emphasises both the failure and possibility of justice.

1 Jürgen Habermas, “Appendix”, in Knowledge and Human Interests, trans. Jeremy J. Shapiro (Cambridge, UK: Polity Press, 1987), 301-317 at 314.

224 6.1.1 The participant and observer perspectives: mutually imbricated?

For Habermas, two participants in communicative action (A and B) are able to achieve a shared intersubjective (and thus objective) standpoint on the validity claims implied by their interaction. By adopting the perspective of an observer, which, following George Herbert Mead, Habermas refers to as the “generalised other”,2 A and B are able to objectify their local interaction, achieving a viewpoint in which the expectations of each are satisfied in reciprocal manner. Levinas would question the possibility of achieving the mutual imbrication of participant and observer perspectives, and the reciprocity of participant perspectives in one, shared perspective.

Habermas’ argument proceeds as follows.3 Person A objectifies his or her local interaction with person B by adopting the perspective of an observer. This is not just any observer but rather the position of the “generalised other”, that is, a socialised adult who has internalised the roles and norms of a particular social reality. In the course of experience, A learns to expect certain behaviours from others in particular situations and to recognise that others have certain expectations of him or her in such situations. Returning to the initial participant perspective, A projects onto B those expectations and behaviours which A has learnt to expect from the generalised other, using these projections as a guide for his or her own actions. In this way, A is able to evaluate shared action norms in terms of their acceptability for the generalised other and, in this case, for B, as a concrete instantiation of the generalised other. If, from the perspective of the generalised other (that is, from the perspective of the observer), both A and B can accept the consequences and side-effects which the general observance of the action norm has for the satisfaction of the individual interests of all affected, then the interaction can be said to be “reciprocal” because it is based on a “generalisable” interest. By means of this procedure, A has reason to believe that both parties’ expectations will be fulfilled. A’s standpoint is fully intersubjective and, thus, moral.

2 Habermas, The Theory of Communicative Action (Volume 2), 35-36; and Jürgen Habermas, “Individuation through Socialisation: On George Herbert Mead’s Theory of Subjectivity”, in Postmetaphysical Thinking: Philosophical Essays, trans. William Mark Hohengarten (Cambridge, MA: The MIT Press, 1992), 149-204 at 179 and 181. 3 See Habermas, The Theory of Communicative Action (Volume 2), 35-36 and 204-205; Habermas, Moral Consciousness and Communicative Action, 25-29, 65, 144, 153-156 and 198; Habermas, “Individuation through Socialisation: On George Herbert Mead’s Theory of Subjectivity”, 170-177.

225

The argument that participant and observer perspectives are mutually imbricated supports Habermas’ position that the internal contradictions in Kant’s account of “moral feeling” can be resolved by shifting the focus of analysis from subjective to intersubjective reason, that is, reason expressed in the communicative structures which participants use to coordinate their actions (see Chapter 2.2). We recall that Habermas identified a contradiction in the status which Kant had ascribed to “moral interest”. On the one hand, “moral feeling” attests to the capacity for the moral law to be practically effective: human beings must actually want or desire to act on the moral law. On the other hand, moral feeling cannot be empirical because otherwise it would effectively pre-determine the will to action by empirical means alone, thereby ruling out the very possibility of moral, that is, free, willing. Habermas believes that Kant’s system cannot include a moral feeling which is at once empirical and not empirical. Thus, we saw Habermas propose to focus analysis, instead, on reason expressed in structures of communicative action, thereby analysing a reason which is already empirical.

This decision constitutes a shift in analysis from subjective, private structures of reason to intersubjective structures of reason which are deployed by participants who engage in communicative action. The shift effectively assumes that the analysis of intersubjective structures of interaction, on the one hand, can actually be fully resolved with a subjective perspective, on the other. Levinas would question this presumed equivalence. As I argued in Chapter 4, Levinas takes seriously the “incomprehensibility” of the ethical experience which Kant describes and does not believe that the perspective of the generalised other (the observer perspective) grasps the essential characteristic of this experience. For Levinas, Kant’s moral law is non-formal and incomprehensible because it is not a law which I give to myself in the spontaneous, enunciative pragmatic position of the I (or je), but rather a law which is received in the receptive pragmatic position of the you (or tu). Following Lyotard’s reading of the relation between Levinas’ pure prescriptive and Kant’s moral norm, I argued in Chapter 4.1.4 that the pragmatic position of passive receptivity, a pragmatics of being commanded by the pure prescriptive (Act), is not equivalent to the pragmatic position of spontaneous enunciation, a pragmatics of formulating for oneself, in one’s own terms, the received command (in such a way that…). As Lyotard indicates, there remains an irreducible gap

226 between two pragmatic functions; a pragmatic gap between the register of the elementary prescriptive “Obey” or “Act”, on the one hand, and the epistemic and denotative register, on the other. This difference cannot be fully overcome by the patterns of learning with which Habermas’ participants formulate – both for themselves and for the Other – the content of the moral ought. From a Levinasian perspective, A’s responsibility for the fate of B’s interests (that is, for interests other than A’s own interests) is overruled, in Habermas’ account, by the interests of the “generalised other”. Habermas chooses to emphasise A’s pragmatic ability to project onto B the expectations which A has learnt to expect from the “generalised other”. In contrast, Levinas chooses to emphasise A’s pragmatic ability to be affected by B in the particular.

Levinas and Habermas’ concepts of the transcendental conditions of morality are not equivalent. I explained, in Chapters 2.1.3 and 4.1.2, that, for Kant, pure practical freedom is an a priori “fact of reason”. The will cannot determine itself to action on the basis of law unless it assumes, as given, the existence of the freedom which is “problematic” for the theoretical interest. The existence of freedom is a “fact of reason”, an a priori principle, because it is necessary if rational, free action (morality) is to be at all possible.4 However, we saw that Habermas objects to Kant’s claims that the “fact of reason” is attested to by moral feeling. Moral feeling cannot be included in Kant’s system without contradiction because it is neither empirical nor rational and is thus, incomprehensible. Shifting the analysis to intersubjective structures of communication, Habermas suggests that Kant’s “fact of reason” finds its equivalent in the reconstructive analysis of those pragmatic presuppositions which are necessary (in quasi- transcendental manner) for consensually-oriented communication. These pragmatic presuppositions are thereby justified insofar as they are necessary if communicative action is to be possible.5

4 Kant writes, “As soon as these same [problematic] propositions belong inseparably to the practical interest of pure reason it [theoretical reason] must accept them – indeed as something offered to it from another source, which has not grown on its own land but yet is sufficiently authenticated”. Theoretical reason must then “try to compare and connect them with everything that it has within its power as speculative reason, being mindful, however, that these are not its insights but are yet extensions of its use from another, namely, a practical, perspective”. Kant, “Critique of Practical Reason”, 5:122. 5 “Since empirical speech is only possible by virtue of the fundamental norms of rational speech, the cleavage between a real and an inevitably idealised (if only hypothetically ideal) community of language is built not only into the process of argumentative reasoning but into the very life-praxis of social systems. In this way, perhaps the Kantian notion of the fact of reason can be revitalised”. Habermas, “A Postscript to Knowledge and Human Interests”, 185, emphasis added.

227

By contrast, Levinas does not shift the terrain of analysis from subjective to intersubjective structures of communication. Rather, he presents the “incomprehensibility” of Kant’s moral interest as itself necessary if moral experience is at all possible. Levinas reformulates Kant’s “fact of reason” because he believes that the “incomprehensibility” of moral interest cannot be reconciled with Kant’s view of practical freedom giving itself its own law. Unlike Habermas, Levinas thinks that the contradiction itself is necessary to morality. The “fact of reason” is thus not the consciousness of one’s own practical freedom as such but rather the decentring realisation that my world is not subject to my freedom alone. The condition of morality, then, is the assumption of an other freedom – the Other – whose interests and needs are irreducible to mine and whose fate is caught up with my own.

Where Habermas shifts the object of Kant’s analysis from subjective structures to shared structures of intersubjective communication, Levinas retains the “incomprehensibility” of the moral interest as a necessary condition of morality. I have argued that this difference leads Levinas and Habermas to defend a different pragmatics of obligation. On the one hand, Habermas emphasises A’s ability to project onto B the reactions and expectations of the social group as a whole. From the perspective of the generalised other (that is, from the perspective of the observer), both A and B are to be able to accept the consequences and side-effects which the general observance of the action norm has for the satisfaction of the individual interests of each party, thereby securing the “generalisable” and fully intersubjective interest. On the other hand, from a Levinasian perspective, one cannot ever say that the two perspectives are mutually imbricated. They remain, essentially, irreducible and this irreducibility is the very condition of morality. This is why he defends a pragmatics of listening, learning and responding rather than a pragmatics of projection. These two pragmatics are not equivalent to each other.

228 6.1.2 The precondition for communication: the intention of consensus?

The next claim that Levinas would question is the view that “Our first sentence expresses unequivocally the intention of universal and unconstrained consensus”. 6 The claim is that those who participate in discourse do so on the basis of the pragmatic presupposition that rational consensus is possible. For Levinas, we will see, the possibility of communication depends not so much on the assumption of the possibility of consensus as on the pragmatic ability to open oneself to that which one cannot understand.

I have just reiterated that the presupposition of the possibility of rational consensus is, for Habermas, equivalent to Kant’s “fact of reason”. Where Kant claims that the existence of practical freedom is a “fact of reason” because such freedom is necessary to the very concept of moral action, Habermas instead accounts for the “fact of reason” in terms of those structures of communication which are necessary to the concept of fully intersubjective discourse (see Chapter 2.2). The pragmatic analysis of the presuppositions on which the possibility of argumentation depends reveals that discourse “necessarily begins with the counterfactual assumption that universal agreement is possible…”7 As Chapter 2.2 indicated, the pragmatic analysis of discourse reveals the necessity of the presumption of principle (U), which makes consensus possible8, and which states that: all affected can freely accept the consequences and the side-effects that the general observance of a controversial norm can be expected to have for the satisfaction of the interests of each individual.9

The intention of universal and unconstrained consensus is thus necessarily implied by all linguistic exchange.

For Levinas, it is rather the self’s being-affected by the Other’s “expression” which is the condition of discourse. Being-affected by that which one does not understand is, for

6 Habermas, “Appendix”, 314. 7 Habermas, “A Postscript to Knowledge and Human Interests”, 185, emphasis added. 8 Habermas, Moral Consciousness and Communicative Action, 63, see also 57, 62-68. 9 Ibid., 93.

229 Levinas, the condition of communication. 10 Communication would be conceptually unnecessary if one were not at first affected, or if one encountered only what one already understood. One would have no need to begin to talk to or respond to the Other if the Other’s expression were already reducible to the self’s understanding. Communication requires the idea that one does not understand the other. As Levinas puts it, the first word “comes to me from the Other and reverberates in consciousness by putting it in question”.11 From the perspective of the self, the Other’s word is “not disclosure but expression”, the manifestation of another “over and beyond form”.12 The “intention of universal and unconstrained consensus” does not adequately describe the experience of being-affected by that which one does not understand.

Having said that, could not Habermas respond, after the initial experience which Levinas describes, that it is nonetheless necessary to assume that one can understand the Other? Couldn’t Habermas point out that one cannot simply listen without also formulating in one’s own terms what the Other’s expression communicates? And could not he then insist that one must present to the Other one’s own understanding of the matter at hand, thus assuming that understanding and consensus is somehow possible? One could respond in this way. However, in my view, Levinas wishes to indicate that the very assumption that understanding and consensus is possible itself already constitutes a response, one whose precondition lies in the fact of being-affected by an expression which one cannot understand. In other words, from a Levinasian perspective, Habermas’ presentation of the conditions of discourse is itself a way of accounting for the ethical obligation to respond to the incomprehensible. So as to emphasise that any account of discourse is itself premised on the pre-condition that the self is first affected beyond its capacity to understand the origin of the affect, Levinas himself chooses to speak of discourse in terms of “learning”, a “being taught” in a “non-

10 See, in particular, the following sections of Levinas’ Totality and Infinity: “Discourse” (64-70), “Discourse and Ethics” (72-77), “Discourse Founds Signification” (204-209), “Language and Objectivity” (209-212), and “Exteriority and Language” (294-297). 11 Levinas, Totality and Infinity, 204. “The face opens the primordial discourse whose first word is obligation… It is that discourse that obliges the entering into discourse, the commencement of discourse rationalism prays for, a “force” that convinces even “the people who do not wish to listen” and thus founds the true universality of reason” (201). 12 Levinas, Totality and Infinity, 66, see also 64-70.

230 maieutic fashion”,13 in which “the Other who expresses himself precisely does not give himself”.14

Moreover, Habermas might also reply that the model which Levinas is explicitly targeting is a representational model of language and that the criticisms do not apply to Habermas’ model, which is not representational. Discourse, for Habermas, is not representative of a reality which is somehow external to language itself. Reality is internal to the very function of discourse itself. In this sense, if Levinas were claiming that discourse cannot represent the Other as he or she really is, and thus, that language must have a function over and above its supposed capacity to represent, Habermas could simply respond that his own model does not claim to represent the Other as such. Rather, it merely claims to identify those structures which participants in discourse must assume if they are to be able to communicate at all. However, as I indicated in the previous paragraphs, Levinas is not simply targeting the representational model but also the view that Habermas explicitly defends, namely, the view that participants in discourse must assume that they actually can understand each other.

Once again, by insisting that ethical obligation responds to that which one cannot understand, Levinas defends a pragmatics of responsibility which is not equivalent to the one that Habermas supports. Habermas believes that “autonomy and responsibility are posited for us”15 through the very structure of language itself. Levinas would not disagree. However, each philosopher presents conflicting accounts of the preconditions for communication and thus, their conceptions of autonomy and responsibility in communication also differ. I thus disagree with Lawrence Burns, Robert Gibbs, Stephen Hendley and Michel Depuis 16 who each suggest that Levinas’ ethical obligation expresses a pragmatic command equivalent to the one which Habermas defends,

13 Ibid., 204. 14 Ibid., 202. “In this relation [with the exteriority of being] we have recognised teaching, produced only in the face to face; and in language we have recognised teaching. Teaching is a way for truth to be produced such that it is not my work, such that I could not derive it from my own interiority” (295). 15 Habermas, “Appendix”, 314. 16 Lawrence Burns, “Identifying Concrete Ethical Demands in the Face of the Abstract Other: Emmanuel Levinas’ Pragmatic Ethics”, Philosophy & Social Criticism 34 (2008): 315-335; Stephen Hendley, “Speech and Sensibility”, Continental Philosophy Review 37 (2004): 153-73; Stephen Hendley, From Communicative Action to the Face of the Other: Levinas and Habermas on Language, Obligation, and Community (New York: Lexington Books, 2000); and Robert Gibbs, “Asymmetry and mutuality: Habermas and Levinas”, Philosophy & Social Criticism 23 (1997): 51-63.

231 namely, “the command to justify [one’s] enjoyment to the other”. 17 For Burns, Gibbs, Hendley and Depuis, both commands equate to the idea that a social order must be instituted around mutually affirmed action norms. Each writer suggests that, in terms of its pragmatic force, the basic aim of Levinas’ account of communication is to possess the world in common with others.18 In rational discourse, I anticipate the possible consent of the other who is free to accept or reject the validity-claim and, in this way, communication thereby founds a common world through discourse, a world which is also for the Other.

However, in my view, Levinas’ ethical responsibility does not imply the pragmatic obligation to “justify [one’s] enjoyment to the other”. First, as Burns himself recognises, Levinas makes responsiveness, not spontaneous self-expression, the goal of communication. I thus insist again on the point that I have made in this and the preceding subsection, namely, that the pragmatic position of the subject of the pure prescriptive “Obey” (the you or tu) is not equivalent to the pragmatic position of the subject of enunciation (the I or je) who “comments” on this prescription.19 The Other does not command the partner in interaction “to justify his or her enjoyment to the Other” by means of the enunciative pragmatic position, as Burns, Gibbs, Hendley and Depuis claim. Instead, the command requires that the partner in interaction take on responsibility for the fate of the Other in the particular, a fate which cannot be formulated in terms of the self’s enjoyment and rather requires the pragmatic position of responding to what one does not understand.

In simple terms then, responding to the Other is not equivalent to justifying one’s own interests to the Other with a view to achieving consensus upon reciprocal interests. The practical intention of the obligation which Levinas discovers in Kant (namely, dis- interest) is not reducible to self-interest (see Chapter 4.1.1).20 For Habermas, both

17 Burns, “Identifying Concrete Ethical Demands in the Face of the Abstract Other: Emmanuel Levinas’ Pragmatic Ethics”, 319. 18 Ibid., 329. 19 See Chapter 4.1.4 for Lyotard’s analysis, in “Levinas’ Logic”, of the difference between a pragmatics of obligation and one of enunciation. 20 Arne Johan Vetlesen argues that despite their differences, Levinas and Habermas can be seen to pursue, via separate routes, a similar core idea, namely, the opposition to the social contract theory’s notion of responsibility as conditional upon self-interest. I would remind Vetlesen that Levinas’ account of dis- interest as interest for the fate of the other in the particular is not equivalent to Habermas’ account of the

232 autonomy and responsibility are achieved with the satisfaction of (U). Participants in action are autonomous when they formulate their own laws subject to the communicatively expressed approval of all affected others. Participants are also responsible insofar as their allegiance to (U) requires that they accept the consequences and side effects of a proposed norm.21 In contrast, for Levinas, autonomy lies in the capacity of responsiveness or, as he puts it, freedom from “auto-affirmation” in the sense of “answering for the Other”.22

6.1.3 The moral principle: fully intersubjective?

Habermas claims that his account of necessary and universal presuppositions of communication is fully intersubjective and not the product of monological reason. This is a further claim which Levinas would find untenable. No doubt Levinas would oppose the claim that discourse ethics succeeds in escaping the monological reason of the “philosophy of consciousness”.

Habermas contrasts his own account of justice with those of Kant and Rawls, whose analyses are pursued from the perspective of an individual subject (see Chapters 2.2, 2.3 and 3.1.1). By explicitly shifting his focus from the individual and onto the pragmatic function of intersubjective reason expressed in structures of social interaction (language), Habermas claims that his own analysis is fully intersubjective.

However, Levinas provides reason to believe that Habermas’ discourse ethics does not escape the monological reason of the “philosophy of consciousness” and that the formalisation of (U) is not fully intersubjective. Following on from the preceding subsections, Levinas would suggest, once again, that listening to and learning from an Other person is central to an intersubjective concept of reason. Insofar as Habermas defends a pragmatics of “projection” rather than one of listening and learning, his discourse ethics cannot be said to be fully intersubjective. In so doing, Habermas

“generalised interest” as the coordination of plural self-interests. See Arne Johan Vetlesen, “Worlds Apart? Habermas and Levinas”, Philosophy & Social Criticism 23, no. 1 (1997): 1-20. 21 Habermas, Moral Consciousness and Communicative Action, 93. 22 Freedom occurs when the “I frees itself from its “return to self”, from its auto-affirmation, from its egotism of a being persevering in its being, to answer for the other, precisely to defend the rights of the other man”. Levinas, Totality and Infinity, 124.

233 effectively reinstates a philosophy of consciousness: A evaluates action norms by projecting, onto B, A’s own monological understanding of the norms of the “generalised other”. In contrast, Levinas demands the suspension of one’s own interests and the taking-on of the interests of the Other. Habermas’ ethics, pursued within the horizon of the self’s understanding of the generalised other, thereby rules out the possibility of a fully intersubjective process of evaluation.

In section 6.1.2, I suggested that, in contrast to Habermas’ presupposition that we can understand the other and that consensus is possible, Levinas insists that the discourse of the other cannot be understood. Thus, for Levinas, communication relies on “being affected” by an expression which one cannot understand. In this section, I have also suggested that Levinas demands the suspension of one’s own interests and the taking-on of the interests of the Other. These two formulations appear to contradict one another. It does not seem that one can take on the interests of the Other without assuming that one understands the other’s interests. Once again, Levinas would emphasise that one must listen to that which one cannot understand and that one must attempt to take on interests which one does not understand. Although Levinas would need to agree with Habermas that presupposing that one can understand the Other’s interests is a necessary part of pursuing ethical responsibility, he would nonetheless insist that this presupposition does not exhaust ethical responsibility. One can never satisfy one’s ethical obligation precisely because the very attempt to take on the interests of the Other pre-comprehends the other’s interests. Ethical obligation is non-exhaustible, in principle.

For Levinas, the problem is not that Habermas does not achieve a fully intersubjective status. It is rather that he claims to achieve one when, in fact, a fully shared, intersubjective process of evaluation is impossible, in principle. The pragmatic position of the you, commanded by ethical responsibility, is irreducible to the spontaneous, enunciative position of the I, who justifies his or her own enjoyment or self-interest in terms which he or she believes the other will also find acceptable.

234 6.1.4 The discourse principle: a guarantee of fairness?

The final claim that would be problematic from a Levinasian perspective is the view that the discourse principle (D) guarantees the fairness of any conceivable substantive agreement which is reached under its conditions. Once again, pursuing the line which runs through this section, Levinas would respond that ethical obligation cannot be exhausted by (D)’s requirement that valid norms meet with the approval of all affected in their capacity as participants in practical discourse.

We saw in Chapter 2.2 that, for Habermas, the discourse principle (D) satisfies the constraints of impartiality implied by the moral principle (U). As required by the democratic principle, (D)’s procedures also permit the impartial regulation of pragmatic, ethical and moral argumentation as well as bargaining (see Chapters 3.2.1.1 and 3.2.1.2). To remind ourselves of its conditions, (D) requires, first, that all affected by a contested norm (or representatives of those affected) be included as actual participants in a practical discourse; second, that all such participants be granted a symmetrical distribution of communication rights; third, that none be subject to coercion of any form; and finally, that participants be both sincere and truthful.23 The satisfaction of (D)’s conditions effectively guarantees fairness and impartiality.

Like Habermas, Levinas believes that merely de facto rights and laws need permanent revision. He writes: I was just talking now about the liberal state: isn’t it a permanent revisiting of the right itself, a critical reflection on political rights, which are only de facto laws? 24

However, unlike Habermas, Levinas believes that laws are always de facto and never legitimate: they always fail to satisfy the ethical obligations to particular others which make just laws necessary. Moreover, the standard in relation to which such revision takes place cannot be formalised by procedure (D) insofar as the normative core of responsibility for the fate of the concrete Other conflicts with the norm of equal

23 Habermas, Warheit und Rechtfertigung: Philosophische Aufsätse, 48; and Habermas, Moral Consciousness and Communicative Action, 93. 24 Emmanuel Levinas, “Dialogue on Thinking-of-the-Other”, in Entre Nous: On Thinking-of-the Other, trans. Michael Smith and Barbara Harshav (London: The Athlone Press, 1998), 201-206 at 205.

235 treatment which the procedure (D) foregrounds.25 Levinas thinks that the liberal state’s justice is structurally perfectible but this is not, as Habermas believes, because its content can always be revisited in the light of the very presuppositions of discourse which grant it its validity or legitimacy. Rather, as I noted in Chapter 4.3, the state’s justice is perfectible because its content (including the procedural content which Habermas identifies) fail to satisfy ethical responsibility. Quite simply, ethical responsibility cannot be reconciled with justice. Hence the idea that charity must compensate for justice’s lack and the rather unsettling idea that rebellion must begin once order sets in (see Chapter 4.3).

6.2 The necessity of the constructive commitment

I have suggested that Levinas’ insistence on justice’s inevitable failure can provoke a certain vigilance with respect to determined forms of justice, like Habermas’. However, when the insistence on inevitable failure is not counterbalanced by faith in the possibility of better and worse forms of justice, vigilance surrenders its critical potential. Levinas gets the balance wrong, which is one reason why I find his work exceedingly frustrating. The defence of impossibility is of little value without the affirmation of the possibility of determining between forms of justice which are better and worse. To defend this possibility is to pursue the constructive or reconstructive moment. Levinas does not do this, and instead cautions, in an admonitory tone, against justice in all forms.26

It is not surprising then, that in the preceding section, I continually highlighted that ethical obligation is not equivalent to Habermas’ commitment to impartiality. Not only did I suggest that ethical responsibility is irreconcilable with the postulate of the

25 I remarked, in the Introduction, that Axel Honneth believes that the later Derrida, relying on Levinas’ ethics, develops a notion of moral responsibility for the concrete other, which conflicts with the norm of equal treatment and which instead supports an ethics of care, like the one that Gilligan defends, a counterpoint to the perspective of Habermasian “justice”. Honneth, “The Other of Justice: Habermas and the Ethical Challenge of Postmodernism”, see 315-319. Honneth’s claim needs to be tempered by the concession that Levinas and Derrida also grant the necessity of an allegiance to the principle of equity, even if it is true, as I argue here, that Levinas tends to emphasise impartiality’s failure. 26 I remind the reader that although Levinas does, on occasion, emphasise the possibility of justice within the State of David, his account is unacceptable insofar as it relies on the premise of Jewish exemplarity (see Chapter 4.3).

236 symmetry between interacting partners, I also suggested that it is not equivalent to the presupposition of the possibility of rational consensus. Moreover, I argued that, from a Levinasian perspective, Habermas’ moral principle of argumentation (U) is not fully intersubjective because a pragmatics of ethical obligation denies the very possibility of achieving full intersubjectivity in a pragmatics of consensus. Finally, I pointed out that the normative core of responsibility for the fate of the concrete Other conflicts with the norm of equal treatment which Habermas’ discourse procedure (D) foregrounds. In each case, I emphasised the non-equivalence of ethical responsibility, on the one hand, and the procedural account of the impartial standpoint, on the other. Quite simply, ethical responsibility can never be satisfied by impartiality.

These claims, however, leave me distinctly dissatisfied. It would appear that we are well within our rights to ask whether ethical responsibility is even a meaningful goal if it cannot allow us to distinguish between certain forms of justice. Not withstanding that the value of impartiality always fails to take up the particularity of ethical obligation, surely ethical responsibility to plural Others nevertheless requires that we defend certain forms of failure over others. On the one hand, Levinas encourages us to pursue the Socratic role of the critical “gadfly”, constantly goading, arousing, persuading and reproaching the state, a great and noble steed, who is sluggish and must be stirred into life.27 On the other hand, the critical “gadfly” is simply ineffective if it cannot actually assist us to distinguish between better and worse forms of determination. No great and noble steed will be stirred to pursue a project which can only fail.

In what follows, I will attempt to lay out the main differences, as I see them, between ethical responsibility for the Other in the particular, and commitment to the principle of impartiality between moral persons which Rawls and Habermas defend.28 In so doing, I will preface the move to section 6.3, where I will suggest that Levinas needs an ideal of the moral person, that is, an ideal of the person, not as a particular Other, but a person committed to the value of impartiality. If Levinas were to concede this point, as I

27 Plato, The Collected Dialogues, 28b-32e. 28 I prefaced this discussion in Chapter 4.2.1 where I considered more carefully what ethical obligation means and why commitment to the principle of impartiality, which Rawls and Habermas defend, inevitably betrays the obligations which provoke it.

237 believe he should, he would be able to defend certain forms of justice over others, instead of ineffectually insisting that all forms of justice fail.

Ethical obligation and impartiality differ, first, in their intention and second, in the ideal of the person which they imply. Regarding the first, I suggested, in Chapter 4.2.1, that, by ethical obligation or responsibility for the fate of the Other, Levinas appears to mean one of at least three possibilities. Responsibility for the fate of the Other person’s particular interests would require suspending one’s own interest and assisting the Other to pursue those interests which we understand the Other to have. Responsibility for the Other’s welfare or well-being would require assisting only those interests which we believe contribute to the Other’s well-being. Responsibility for the Other’s difference would involve limiting one’s external interference so as to let the Other pursue individuality or cultural particularism in ways which he or she sees fit. I noted in Chapter 4.2.1 that Levinas uses the concept loosely and subscribes, on different occasions, to either one of these possibilities. Indeed, I suggested that Levinas cannot provide any essential content to the concept of ethical responsibility because this would pre-determine the very responsibility whose content must remain open to the Other’s demands.

When ethical responsibilities are plural, then one’s various responsibilities for different Others’ interests, welfare or differences need to be compared, ordered and hierachised. Hence the need for a principle of the equality of all Others or impartiality. Once again, however, Levinas refuses to ascribe any content to the value of impartiality and refuses to provide any criteria for the ordering of interests, welfares and differences. This is because the ultimate goal remains the responsibility for the fates, now plural, of different Others, and the content of responsibility thus depends on the Others which one faces.

In contrast, Rawls and Habermas clearly define the intention of impartiality as the determination of a public point of view which is acceptable to those individuals who are to be subject to it. The goal is not, as Levinas puts it, responsibility before Others in the particular, but responsibility before other persons in the capacity of moral agent, that is, to others who are committed to the impartial standpoint of fairness.

238

This leads me to the second point of difference between ethical obligation and impartiality. Each affirms a different ideal of the person. Both Rawls and Habermas define individuals as moral persons, that is, as the bearers of those capacities which enable them to commit to the impartial standpoint. In simple terms, the idea is that if impartiality is possible, then persons must view themselves as capable of committing to impartiality. As I explained in Chapter 1.1.2, Rawls’ conception of justice as fairness affirms an ideal of persons as free, equal, rational and reasonable because these are the qualities which make fairness both necessary and possible. Persons are free because acceptance is not to be coerced. They are equal because the acceptance of each individual is required. Persons are rational because impartiality would not even be necessary without the conflicting claims which result from pursuing one’s advantage. Persons are reasonable because impartiality would not even be possible without the capacity to formulate and abide by a conception of justice, and to accept reasonable disagreement. Habermas, too, defines the moral person in terms of those capacities which are necessary for participation in consensually-oriented action. Moral persons have particular ethical or pragmatic interests which they pursue in their interactions with others (since this is what makes the impartial standpoint necessary). Moral persons also implicitly accept the universal and necessary communicative presuppositions of argumentative speech, thereby affirming, as valid, some sort of principle of universalisation (since this is what makes the impartial standpoint possible).

Whilst Rawls and Habermas frame their personhood ideals in terms of those capacities which enable persons to take up an impartial standpoint, Levinas appears to affirm two conflicting concepts of the person. In the first, he safeguards a concept of the Other as a unique particular, one who is not exhausted by the capacity to take up the standpoint of fairness. In the second, we noticed that Levinas does recognise that commitment to the principle of the equality of Others is necessary when one finds oneself responsible for plural Others. He thus implicitly affirms an ideal of a person who is capable of taking up the standpoint of fairness. As Rawls correctly points out, when a citizen affirms an institutional context committed to impartiality among persons, then “from that context a duty arises on those citizens to follow the criterion of reciprocity. This is a duty arising

239 from the idea of [the] reasonableness of persons”.29 The two concepts of the person, however, are not equivalent. Levinas evidently prioritises the concept of the person as Other over the ideal of moral personhood, which is why he continually insists that responsibility to the Other is not exhausted by the moral personhood demanded by the principle of fairness and impartiality.

It is the absolute privilege, which Levinas accords to the concept of the person as Other over the concept of moral personhood, that I am here questioning. This privilege leaves Levinas unable to defend certain principles, laws and procedures over others. In order to counterbalance the insistence on the inevitable failure of justice with faith in the possibility of better and worse forms of justice, Levinas needs to pursue the constructive or reconstructive moment. Doing so requires the affirmation of an ideal of the person as a moral agent, an ideal which is, by definition, not equivalent to the concept of the person as Other.

6.3 Rawls’ ideal of moral personhood: implied by the Third

As with Habermas, Levinas would probably emphasise the sense in which Rawls’ substantive conception of justice fails to satisfy its diverse and irreducible non-formal ethical obligations to Others in the particular. However, I have suggested that this type of criticism surrenders its critical potential because it defends the failure of the very principle of impartiality itself. The defence of the impossibility of perfect justice leaves Levinas unable to say little more than “justice fails”.

In this section, I wish to pursue a different line. I will argue that Levinas should be able to affirm an ideal of moral personhood which resembles the one defended by Rawls. Rawls’ ideal of moral personhood can be said to attempt to negotiate the bind between responsibility for persons as distinct individuals and responsibility for persons in general. On the one hand, it is true that the ideal of the moral person, as a distinct individual, capable of taking up an impartial standpoint, is not equivalent to Levinas’

29 Rawls, Political Liberalism, xlvi. As Rawls recognises, a similar kind of reasoning is found in T.M. Scanlon’s “Promises and Practices”, Philosophy and Public Affairs 19, no. 3 (1990): 199-226.

240 concept of the Other as a unique particular. On the other hand, Levinas nonetheless needs an ideal of moral personhood if the commitment to the value of impartiality, which he believes is necessary when faced with plural obligations, is to be at all possible.

There are at least four aspects of Rawls’ mature account of political constructivism which Levinas should affirm. First (6.2.1), Levinas’ account of the call to justice demands allegiance to a principle of equity. In other words, we need to view ourselves as moral persons capable of taking up an impartial standpoint. Doing so commits us to a virtue like the Reasonable in Rawls. 30 The Reasonable, I claim, demands the negotiation of partiality towards others as distinct individuals and impartiality among all individuals, and this is a commitment which Levinasian justice requires. Second (6.2.2), Levinas defends the need to prevent “useless suffering” so as to guarantee, for the Other, a social world in which to pursue his or her interests and difference.31 From the standpoint of fairness, Rawls recognises that an ideal of moral personhood must cohere with the minimal conditions of mental and physical health which are necessary for cooperating with others, as these are defined by the human sciences. Finally (6.2.3), for Levinas, the content of justice cannot be determined once and for all but must be subject to the possibility of revision, subject to the particular interests and differences of the Others to which it must respond. From the standpoint of fairness, Rawls believes that the public conception of justice should be subject to revision because our considered judgments of justice and our convictions regarding the content of impartiality are liable to change. In this sense, I think that Levinas needs to affirm something like the project of “wide reflective equilibrium”, to which citizens who affirm the principle of equity are indefinitely committed, “indefinitely”, because our considered judgments of justice are liable to change.32 Wide reflective equilibrium requires that we not only systematise our own considered judgments about justice with appropriate principles, but also that we consider other public conceptions of justice and other citizens’ considered judgments about justice, thereby fine-turning our own public conception. In this way, wide reflective equilibrium requires not merely the spontaneous, ordering capacities of the moral person but also the capacity for being affected by others’ considered viewpoints.

30 See Chapters 1.1.2 and 3.1.1.3 for Rawls’ notion of the Reasonable. 31 See Chapter 4.2.2. 32 See Chapters 1.2.2 and 3.1.1.2.

241 Levinas should agree with Rawls that wide reflective equilibrium – the equivalent of Habermas’ fully intersubjective standpoint – is a project to be pursued by on-going struggle.33

6.3.1 Responsibility for the Third and the virtue of the Reasonable

In spite of the emphasis he places on the impossibility of deducing the procedures and content of justice from the ethical obligation, Levinas nonetheless affirms the necessity of the principle of equity and of the equality of all Others (see Chapter 4.2.1). Committing to the principle of equity is necessary when we must decide how to negotiate ethical obligations which are plural, not singular. Such commitment, I claim, invokes a virtue which Rawls refers to as the Reasonable.

We saw, in Chapter 3, that Rawls defines the Reasonable as a virtue of persons who are committed to justice in their public institutions. The virtue of the Reasonable includes two dispositions; first, the willingness to propose fair terms of cooperation and to abide by them, provided others do likewise; and second, the willingness to recognise the “burdens of judgment” and to accept their consequences for the use of public reason (see Chapter 3.1.1.3).

I argued in Chapter 4.2.1, that Levinas goes some way toward affirming the necessity of the value of impartiality. Ethics demands justice because, when faced with responsibilities towards a plurality of Others (the Other and the Third), commitment to fair and reciprocal terms of social interaction is necessary to protect the Third’s fate from the potentially violent effects of the self’s asymmetrical obligation to the Other in the particular. Responsibility for the fate of the Third requires the comparison of incomparable obligations34 and thereby deploys “the idea of equity on which the idea of objectivity is based”.35 When Levinas affirms that commitment to the value of equity

33 Rawls, “The Independence of Moral Theory”, 289; Rawls, Political Liberalism, 97; and Rawls, “Reply to Habermas”, 385. 34 “Comparison is superimposed onto my relation with the unique and the incomparable, and, in view of equity and equality, a weighing, a thinking, a calculation, the comparison of incomparables…” Levinas, “Peace and Proximity”, 168, emphasis added. 35 Levinas, “Philosophy, Justice and Love”, 104.

242 and equality (in a word, impartiality) is needed, he implicitly affirms everything that such commitment entails. He presupposes that we are indeed capable of taking up such a standpoint. That is, he presumes that we are, indeed, willing to order our social interactions according to principles which are fair to all who are affected. He also assumes that we can do so. If, in a society characterised by value-pluralism, disagreement is to be expected, then he must also commit to the Rawlsian idea of reasonable pluralism, which implies that he must affirm that we are willing to accept certain disagreements as reasonable and take on the consequences of such acceptation. In other words, by committing to the value impartiality, Levinas is bound to all that such commitment entails. In this sense, Levinas implicitly commits to an ideal of the moral person who is capable of taking up an impartial standpoint. Although the negotiation of the terms for the protection of all Others betrays unconditional ethical responsibility for the particular Other, Levinas nevertheless affirms, albeit implicitly, that commitment to a virtue like the Reasonable in Rawls is nonetheless necessary.

As his own comments on rights indicate, Levinas tends to suggest that the proliferation and constant expansion of rights in the modern world is symptomatic of the impossibility of ever satisfying the particular demands of all Others. However, we can also read Levinas’ account of this proliferation as a defence of the obligation (also ethical) to protect the Third Other from the negative effects of the relation between two. In other words, in spite of its emphasis on impossibility, Levinas implicitly assumes the possibility of justice, which equates to the attempt to determine, in some way, the minimal conditions necessary for personal identity, survival and intersubjective cooperation, so as to protect the Other and the Third. The demand is not for a naturalistic or anthropological account of minimal intersubjective conditions, rather for a practice of vigilance, a response to those systemic cases of human suffering which appear to leave the Other’s personality damaged in some way and which do not satisfy the ideal of moral personhood that we each affirm. Indeed, the tone which Levinas takes when speaking about the symptomatic proliferation of rights is celebratory and not severe. The expansion of positive rights, although symptomatic of the failure to satisfy ethical responsibility, is nonetheless commendable insofar as it pursues such responsibility.

243 Beyond the rights to life and security, the free disposal of one’s goods and the equality of all men before the law, to freedom of thought and its expression, to education and participation in political power – there are all the other rights that extend these, or make them concretely possible: the right to health, happiness, work, rest, a place to live, freedom of movement, and so on. But also, beyond all that, the right to oppose exploitation by capital (the right to unionise) and even the right to social advancement; the right (utopian or Messianic) to the refinement of the human condition, the right to ideology as well as the right to fight for the full rights of man, and the right to ensure the necessary political conditions for that struggle. The modern conception of the rights of man surely extends that far!36

The tone is celebratory because the impossibility of fulfilling ethical obligation generates a critical practice, a vigilance with regard to new, unforeseen, as yet unchallenged cases of human suffering which cannot be reconciled with the ideal of the moral person which we are called on to affirm. The commitment to responding to cases of human suffering is certainly implied by Rawls’ virtue of the Reasonable insofar as the latter describes a willingness to propose and abide by fair terms of cooperation.

Moreover, it is worth pointing out that Rawls’ account of public reason limits itself to an agreement on basic political values, constitutional essentials and basic matters of social and economic justice (see Chapter 3.1.1.4). In this sense, it serves as a minimal political morality which should not always extend to other matters which are often referred to as “political” (for example, matters such as tax legislation, laws regulating property, statutes protecting the environment, funds for museums and the arts etc.).37 As we noted in Chapter 3.1.1.4, Rawls appears to suggest that as long as agreement obtains on constitutional essentials, visible in society’s basic institutions, then citizens might sometimes be correct to settle further issues (for example, the protection of the environment or funds for the arts) within a more particularist spirit.38 In this sense, Rawls indeed agrees that public reason cannot provide answers for all of our problems. It thereby allows solutions to certain issues to be settled within a spirit which responds more closely to the individual requirements of the case. In this sense, commitment to

36 Levinas, “The Rights of Man and the Rights of the Other”, 120. 37 Rawls, Political Liberalism, 215-216. 38 Charles Larmore proposes an example that Rawls might have used, namely, the present system in the province of Quebec, which guarantees basic rights for all while also giving special protection and support to the use of the French language despite a sizable Anglophone minority. Larmore thus suggests that the more “communitarian” form of liberalism favoured by Charles Taylor in “The Politics of Recognition” is not obviously at odds with Rawls’ doctrine of public reason. See Larmore, “Public Reason”, 381, 392; and Taylor, “The Politics of Recognition”, 25-74.

244 the virtue of the Reasonable and to shared, fundamental constitutional essentials does not prevent solutions from being tailored in particularist spirit to particular problems.

6.3.2 Minimal conditions of mental and physical health

Although, as I argued in 6.2, Rawls and Levinas set themselves different goals and, consequently, deploy different concepts of the person, I am suggesting that Levinas’ account of the need to commit to an impartial standpoint requires that we view ourselves as moral persons capable of taking up an impartial standpoint, accountable before other moral persons and not before Others in the particular.

We saw that Levinas defends the need for a world in which Others can pursue their interests and differences. On his account, this is the goal to whose end the value of impartiality is deployed. We saw in Chapter 4.2.2 that a public conception, necessary to protect Others in their plurality, is to be judged in relation to the degree of suffering – in its particularity – which it allows to exist unheeded. The principle of equity is employed in judgment so as to protect all Others from what Levinas calls “useless suffering”.39

From the standpoint of fairness, Rawls’ ideal of moral personhood is to cohere with certain minimal conditions of mental and physical health which are necessary for cooperating with others, as these are defined by the human sciences (see Chapter 1.2.2). A public conception must be rejected if its incorporated personhood ideal requires physical or psychological characteristics which would violate the minimal conditions of personal identity, survival and intersubjective cooperation. In this sense, a public conception must take seriously those concrete experiences of debilitating suffering which make social cooperation difficult to pursue. In intention then, Rawls’ conception of justice surely aims to actualise the real and effective powers of all persons to a certain minimal level. 40 “Since a democracy aims for full equality of all its citizens, it

39 Levinas, “Useless Suffering”, 91-102. 40 For an argument that Rawls’ theory of justice shares with Axel Honneth the basic intention of securing, for all citizens, the material and institutional conditions for the actualisation of otherwise merely formal liberties or, in Honneth’s terms, mutual self-realisation, see Miriam Bankovsky, “Social Justice: Defending Rawls’ Theory of Justice against Honneth’s Objections”, Philosophy & Social Criticism 35 (2009): forthcoming.

245 must include arrangements to achieve it”.41 Measures are required to ensure that the basic needs of all citizens can be met so that they can take part, as equals, in political and social life.42 Rawls writes: the constitutional essential here is… that below a certain level of material and social well-being, and of training and education, people simply cannot take part in society as citizens, much less as equal citizens.43

Given that the value of fairness is, for Levinas, the means to pursuing a world in which Others can pursue their interests and differences, Levinas can be said to implicitly require of moral personhood that it cohere with those minimal conditions necessary for intersubjective cooperation.

If justice seeks to cohere with an ideal of moral persons, consistent with those conditions of mental and physical health which are necessary for undertaking individual and social pursuits, it is not clear that justice must be supplemented in a second stage by charity, as Levinas claims on occasions (see Chapters 4.2.2 and 4.3). We saw in Chapter 4.3 that Levinas places the emphasis on the impossibility of resolving the gift of ethics (charity) with justice, and that he consequently suggests that justice’s failure to do so must be compensated by charity (or even challenged by rebellion). We saw that Levinas believes that the true vocation of the liberal state is outside the state, beyond the deployment of rights. I do not think that we cannot resolve such statements with the view that justice, the liberal state and the deployment of rights are in fact ethically necessary. Here, I am suggesting that Levinas needs to give up the idea that justice, the liberal state and rights fail, thereby requiring supplementation by other vocations, and instead affirm that justice, the liberal state and right are precisely perfectible because the function of their determinations is undecidable. I will develop this suggestion in Chapter 7, concluding that both Rawls and Habermas indeed come to affirm that justice remains perfectible, in principle.

41 Rawls, “The Idea of Public Reason Revisited”, 600, emphasis added. 42 Rawls, Political Liberalism, 166. 43 Ibid., 166.

246 6.3.3 Wide reflective equilibrium: an ideal to be pursued

The process of attaining wide reflective equilibrium can also find some support, I believe, in Levinas’ account of ethical obligation before the Other and the Third. This is because Rawls does not see the method as merely descriptive means of achieving coherence between considered judgments and principles but rather demands that it be, in principle, informed by everyone’s considered judgments about justice. In this sense, commitment to wide reflective equilibrium requires that one learn from others, continually adjusting our own considered judgments about impartiality and fairness in light of our encounters with others and our experience and understanding of their needs, sufferings and viewpoints.

On one hand, Rawls does on occasions speak of the aim of the method as if it were purely descriptive. In his early work, he presents the method by analogy with the method of a grammarian who seeks to characterise a person’s ability to recognise well- formed sentences by formulating principles which make the same discriminations as the native speaker.44 He thus writes: one may think of moral philosophy at first as the attempt to describe our moral capacity; or, in the present case, one may regard a theory of justice as describing our sense of justice.45

According to this descriptive interpretation, the method aims to characterise the conception of justice held by a certain person or group.

On the other hand, Rawls speaks of the aim of the method in a second sense, deliberative rather than descriptive: 46 reflective equilibrium is a method for figuring out what we should believe about justice, not simply what we do believe. We focus on considered judgments, not because they accurately represent the moral sensibility of the

44 Rawls, Theory, 47/41 rev., see also 49 and 50 of the original edition (not in the revised version). 45 Ibid., 46/41 rev. The view that the method of reflective equilibrium is merely descriptive is reiterated in “The Independence of Moral Theory” which tells us that “the moral theorist [is] an observer, so to speak, who seeks to set out the structure of other people’s moral conceptions and attitudes”. Rawls, “The Independence of Moral Theory”, 288. 46 The distinction between descriptive and deliberative largely follows T.M. Scanlon’s interpretation of Rawls’ method of reflective equilibrium. T.M. Scanlon, “Rawls on Justification”, in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), 139-167 at 142.

247 person whose conceptions are being described (as the descriptive interpretation goes) but because these are more likely to be correct judgments about morality or justice. Given that judgments which meet the conditions required for them to be “considered judgments” are those which appear correct to us, it is thus reasonable to grant them initial credibility (although they may need to be revised or rejected later in the process). Whereas reflective equilibrium on its descriptive interpretation is purely descriptive and not a method of justification as such, the deliberative view, in contrast, aims to uncover what it is about these judgments which makes them judgments about justice, namely, the commitment to impartiality.

The deliberative account is thus interested in what conceptions and principles (with their consequences) persons would affirm when they have achieved “wide” and not just narrow reflective equilibrium, since the former invokes the ideal of collective practical reason which Rawls had earlier referred to as “Kantian”.47 Wide reflective equilibrium also requires that persons consider and assess the supporting grounds of the considered judgments and public conceptions of justice which other people affirm and not merely their own. The limit of the process is the conception or plurality of conceptions which would survive the rational consideration of all feasible conceptions with their reasons.

What grounds the process is the ideal of uncoerced, collective practical reason: Rawls says that although we cannot actually achieve the ideal, we can be guided by it within human limits. Justice has no other foundations apart from its reference to such an ideal.

Given his earlier conviction that his theory could fully interpret the relevant elements of Kant’s impartial standpoint, it is striking that Rawls does not think that we are likely to ever reach the ideal of wide reflective equilibrium. It seems to me that he cannot maintain the former if he maintains the latter. He writes that the method of wide, reflective equilibrium is a project which “continues indefinitely”.48 It seeks: a point at infinity we can never reach, though we may get closer to it in the sense that through discussion, our ideals, principles and judgments seem more reasonable to us and we regard them as better founded than they were before.49

47 Rawls, “The Independence of Moral Theory”, 289. 48 Rawls, Political Liberalism, 97. 49 Rawls, “Reply to Habermas”, 385. See T.M. Scanlon’s presentation of reflective equilibrium as an ideal to be attained by on-going struggle, in “Rawls on Justification”, 141.

248

Now, once again, responsibility, here, is before other moral persons and not before the Other in the particular, as in Levinas’ account. However, I have suggested throughout this section that Levinas needs to affirm an ideal of the moral person which is capable of taking up the impartial standpoint and, as such, Levinas should be committed to the project of attempting to systematise the considered reflections about justice and about the content of impartiality which such persons affirm. Of course, Levinas would indicate that this content is not equivalent to ethical responsibility before the Other in the particular. However, he nevertheless must commit to the project of wide, reflective equilibrium. From a Levinasian perspective, one must engage in the project even if it cannot deal with the Other as a unique particular. One is to systematise not the viewpoints of particular Others, as we understand them, but rather the viewpoints of others as moral persons, that is, as others who are also committed to the project of determining the content of an impartial standpoint. So much is clear from the fact that the method of wide, reflective equilibrium attempts to consider and systematise only those judgments which concern justice and the content of impartiality, and not conceptions of the good.

6.4 Committing to the “art of the possible”

On the one hand, Levinas’ unusual interpretation of the practical intent of Kant’s moral principle – namely, non-formal responsibility for the particular Other – provokes a certain vigilance with respect to justice’s determined forms. Taking a Levinasian perspective in section 6.1, I attempted to identify some of the reasons why Habermas’ account of deliberative democracy fails to satisfy non-formal responsibility for the Other.

On the other hand, I then argued that such criticism is ultimately unsatisfactory because it targets the very principle of impartiality itself. Vigilance thereby surrenders its critical potential by overemphasising justice’s inevitable failure. By continually defending the non-equivalence of the ethical relation and justice’s principle of impartiality, Levinas denies himself the resources for defending certain forms of justice over others. Levinas’ insistence on justice’s failure cannot be accepted without the postulate of its possibility.

249 After identifying the limitations of Levinas’ insistence on “impossibility”, I argued that Levinas’ own account of obligation to a plurality of Others implies the constructive or reconstructive project. Levinas needs to commit, I argued, to the goal of impartiality and the ideal of moral personhood, even though these are not equivalent to ethical obligation. Moral personhood defines individuals not as particular, unique Others, but rather as the bearers of those capacities which enable them to take up an impartial standpoint. Although commitment to an ideal of moral personhood is not equivalent to responsibility before the individual as a particular, unique Other, it is nevertheless implied by Levinas’ account.

The defence of the impossibility of justice is of little value without subscribing to the essential possibility of determining between better and worse forms of justice and of provoking new determinations of justice. I argued that Levinas implicitly defends this possibility when he recognises that ethical obligation for the Other and the Third requires commitment to the principle of equity and impartiality. However, I suggested that this equates to the essential premise of the constructive or reconstructive project and that, unfortunately, this project is not pursued by Levinas himself.

Levinas needs to affirm the possibility of justice and must thereby commit to an ideal of moral personhood. He does not, and thereby exposes the limits of the “art of the impossible”. Derrida, as I have suggested in Chapter 5, defends both the “art of the possible” and the “art of the impossible”, thereby equipping himself with the possibility of defending an ideal of moral personhood. This resource allows him to defend certain principles, laws and procedures over others. He thereby subscribes to the essential premise of the constructive and reconstructive approach, namely, reasonable faith in the possibility of justice.

In the final chapter, Chapter 7, I will complete my argument that the “art of the possible” and the “art of the impossible” would do well to inform each other. I will demonstrate that Rawls and Habermas come to affirm the essentially perfectible status of their respective substantive or procedural conceptions of justice. I will suggest that it is by affirming that justice is both possible and impossible, hence essentially perfectible, that the critical function of justice is maintained.

250 Chapter Seven

Between Constructivism and Deconstruction: “Reasonable Faith” in the Possibility of Justice

The ideal of a just constitution is always something to be worked toward… A just regime is a project, as Habermas says, and justice as fairness agrees. Rawls, “Reply to Habermas”, 401-402.

In Chapter 6, pursuing the second stage of the thesis’ argument, I defended the view that Levinas needs to supplement the affirmation of the impossibility of justice with the postulate of its possibility, thereby committing to an ideal of moral personhood, and not merely to a concept of the person as a distinct Other.

This final chapter will complete the argument by demonstrating that the projects of social justice, which I have been referring to as the “art of the possible”, on one hand, and the “art of the impossible”, on the other, are complementary. Emphasising, with Levinas, the “impossibility” of justice is distinctly unsatisfying and risks surrendering justice’s critical potential. Conversely, in the absence of further qualification, emphasising the “possibility” of justice, with Rawls and Habermas, produces its own difficulties.

In defending this position, I need to demonstrate that deconstruction, insofar as it conceptually defends both projects, is not opposed to the constructive and reconstructive approaches but requires their pursuit. This will be the subject of the first section (7.1). Conversely, I also need to demonstrate that constructivism and reconstructivism must affirm the impossibility of determining the content of the impartial standpoint. “Reasonable faith in the possibility of a just constitutional regime” must be supplemented by the acknowledgement of its impossibility. In Chapter 3, I

251 explained that the mature theories of Rawls and Habermas indeed recognise some of the difficulties involved in determining the content of the impartial standpoint under conditions of reasonable pluralism. We remarked that Rawls chose to limit the content of the view to certain more basic political values which can serve as the object of an overlapping consensus, and that Habermas acknowledges that moral validity or legitimacy claims can be contested at any time. In this chapter, I will argue that, in spite of their defence of the Kantian project, both Rawls and Habermas indeed come to explicitly affirm the undecidable and perfectible status of their respective substantive or procedural conceptions of justice. I will attempt this demonstration in the second section (7.2).

I will thus take a critical stance towards both traditions. If deconstruction is to produce effects in our distinctly political tradition, then it will need to intervene in those texts and contexts which are directly pertinent to this tradition. Once we acknowledge that deconstruction indeed defends the value of impartiality, we can undertake a deconstructive analysis of Rawls’ and Habermas’ texts on their own terms. As stated in the Introduction, Levinas obscures this opportunity by arguing for the failure of impartiality. Although Derrida opens up this opportunity by emphasising both the possibility and impossibility of impartiality, his own textual interventions are not concretely grounded in a detailed understanding of contemporary, liberal democratic theory. It is fair to say that Derrida himself does not intervene as effectively as he might in the context of contemporary political and social theory. If deconstruction is to produce effects in such contexts, its challenge will need to be taken up by political and social theorists, sociologists, economists, and even policy-makers and legislators, who, in the pursuit of social justice, have the opportunity to reflect on the constitutive relation between current conceptual systems and specific injustices.

As for the constructive and reconstructive traditions, united across their differences by the assumption of the possibility of determining justice’s content, I will argue that, from a deconstructive perspective, both Rawls and Habermas come to concede the inherent perfectibility of their respective conceptions. I will suggest that this concession needs to be celebrated: the critical function of justice depends on the practical possibility of revisiting justice’s imperfect forms.

252

Having shown that the projects of deconstruction, on the one hand, and constructivism and reconstructivism, on the other, indeed require each other, I will then suggest, in section three (7.3), that the very perfectibility of justice is the condition for its critical function. The complete determinability of justice would undermine the practical possibility of revisiting the outcomes of its procedures, thereby surrendering the utopian potential of the concept of justice.

7.1 Deconstruction and the “art of the possible”

In this section, I wish to suggest, on the one hand, that deconstruction, insofar as it argues for the undecidable function of the determination of justice as law, principles or procedures, is not opposed to the pursuit of the “art of the possible” which Rawls and Habermas defend (7.1.1). On the other hand, this does not mean that deconstructive pragmatics is exhausted by such pursuits (7.1.2). It requires a continued vigilance with respect to the necessary conceptual failure of the “art of the possible”. However, I will also suggest that Derrida’s own work does not adequately identify the nature of the conceptual failures of liberal democratic justice. This is because his own critical analysis of the constituent elements of democracy does not consider the more complex characteristics which define both Rawls’ and Habermas’ models of liberal democracy. I will suggest that if deconstruction is to produce effects in the dominant contemporary tradition, then it must take as its object the conceptual resources which this tradition deploys. Doing so requires moving beyond Derrida’s own textual analyses to pursue more appropriate forms of intervention.

7.1.1 Deconstruction: not opposed to the impartial standpoint

In Chapter 5, I argued that Derrida first identifies two contradictory requirements which justice must satisfy, and then indicates that positive laws and principles are incapable of fully addressing both demands. On the one hand, justice requires that its law address every particular relevant characteristic of an individual’s case. On the other hand, justice demands that all similar cases be treated equally in accordance with its law. Either the

253 law corresponds to the absolute specificity of an individual’s particular case (in which case it cannot be said to apply universally to all cases) or the law corresponds to all cases (in which it cannot be said to apply to that which makes the particular case specific). However, despite this difficulty, a decision must be made. The two demands must be negotiated in some way, and criteria are necessary for this negotiation. Indeed, a just decision will be one which negotiates the two demands well.

Insofar as deconstruction supposes that the positive determination of justice is necessary and possible, it subscribes to the essential premise of Rawls’ and Habermas’ interpretations, the premise to which I have been referring as the “art of the possible”. Derrida effectively balances Levinas’ emphasis on justice’s inevitable failure with faith in the possibility of determining the content of an impartial standpoint. In Chapter 6.2, I argued that, by recognising the need to commit to the principle of equity when faced with the Other and the Third, Levinas implicitly affirms two conflicting concepts of the person, not only a concept of the person as a distinct and unique Other but also an ideal of moral personhood, whereby persons conceive of themselves as bearers of those capacities which enable them to commit to the impartial standpoint. Levinas continually emphasises the non-equivalence of the two standpoints, prioritising the first over the second. I suggested that this is unfortunate because it leaves him unable to say little more than “justice fails”. In contrast, by refusing to prioritise the first standpoint over the second, Derrida emphasises not only the failure but the possibility of the impartial standpoint. I claimed, in Chapter 6.2 and 6.3, that the affirmation of the possibility of impartiality implies a commitment to an ideal of moral personhood.

Now, from the standpoint of impartiality, Rawls and Habermas take seriously both the particularity of moral persons as distinct individuals and the demand for impartiality in application. On one level, this commitment undercuts the ethical responsibility for the particular Other to which Levinas draws attention. From the perspective of impartiality, taking seriously the distinctness of moral persons suggests that the uncoerced, free acceptance of each individual is required. Given that moral persons are symmetrically defined as bearers of those capacities which allow them to commit to the value of fairness, the distinctness of moral persons is not equivalent to the distinctness of the Other in the particular. The latter prevents, in advance, the very possibility of defining

254 the person in symmetrical terms. However, if we must assume that impartiality is possible, as Derrida affirms, then responsibility to the particular Other must be reformulated within an impartial standpoint. In this sense, although the two standpoints are not equivalent, Rawls and Habermas can be said to pursue the practical intent of the standpoint of ethical responsibility, albeit within a standpoint of justice.

Rawls believes, for example, that constructivism negotiates both the demand to take seriously the distinction between persons as non-exchangeable individuals and the demand to treat all persons equally. The concern for the distinction between persons is made explicit by the priority which Rawls accords to the first of his two principles. The first principle, which guarantees the protection of basic liberties for individuals, must be satisfied before the second principle is brought into place. This is to protect individuals, as distinct moral persons, against undue interference in their liberty to pursue their own particular good.

Rawls’ critique of utilitarianism also makes explicit the concern to protect persons, as distinct individuals, from unreasonable outcomes. As Rawls states, utilitarianism “does not take seriously the distinction between persons” 1 because it does not assume that contracting parties have determinate and often different interests which they are concerned to protect. 2 Taking as morally relevant the capacity of persons for the satisfaction of desires, the classical principle of utility requires that institutions be arranged to maximize the absolute weighted utility sum of the relevant representatives, irrespective of its distribution among particular individuals. On such reasoning, the smallest gain in total utility sum is taken to outweigh distributional inequalities between particular individuals. Rawls does not think that such a principle would be acceptable to individuals. He believes that justice must take seriously both the individual in the particular and all individuals together.

Although average utilitarianism does resort to a deliberative framework, which takes seriously the individual person with his or her powers of reflection and judgment, Rawls still does not think that it adequately protects persons as distinct individuals. Average

1 Rawls, Theory, 27/24 rev. 2 Ibid., 175/150 rev.

255 utility per capita might well be high while nonetheless maintaining large inequalities in utility between individuals themselves. Rawls fears, for example, that it would be able to justify the institution of slavery if this could be shown to increase average utility per capita. 3

In contrast to utilitarianism in its classic and average version, Rawls’ constructivism incorporates an ideal of the person as free and equal in order to ensure that the principles of justice which are to apply to all impartially can also be said to take seriously the particular moral relevance of each person as a distinct individual. The ideal of the person effectively subjects the principles of justice to the assessment not only of persons in general but also of persons as distinct individuals with determinate interests which they wish to protect. In this sense then, Rawls can be said to be aware of the conflicting demands which Derrida’s account of justice brings to the fore. Indeed, he believes that his own conception promises a solution which can be said to negotiate both demands in a manner which is more reasonable than the alternatives of classic and average utilitarianism.

Habermas too believes that discourse ethics negotiates the demands which Derrida identifies as conflicting. Discourse ethics is designed to take seriously both the particular interests which persons may have as distinct individual participants in action and the requirement of impartiality among persons. Habermas argues that the moral principle (U) includes both demands and that the discourse principle (D) specifies those procedures which resolve these demands in actual discourses.

We saw in Chapter 2.2 that the “universal pragmatic analysis” of the necessary pragmatic presuppositions of consensually-oriented communication identifies a rule which participants must employ if they are to resolve their disagreements consensually. Participants assume that a social norm is a shared behavioural expectation whose general observance coordinates interaction by regulating the satisfaction of the particular interests of each in the light of a shared value. Participants thus assume that if agreement on a disputed validity claim is to be reached, they must convince each other that a shared behavioural expectation indeed selects interest-regulating values

3 Ibid., 174-175/151-152 rev.

256 which have value for all particular interests, in terms which others consider appropriate. In this sense, discourse ethics can be said to regulate action by satisfying the particular interests of the actors in the light of an impartial value, thereby negotiating the conflicting requirements which Derrida believes justice includes.

From the perspective of deconstruction, which also subscribes to the “art of the possible”, both Rawls and Habermas can be said to take up the deconstructive challenge of attempting to negotiate the conflicting demands of a justice which not only protects the particularity of individuals but also responds to the demand for impartiality between them. I have already indicated that the negotiation is pursued within the pragmatic standpoint of impartiality and this cannot be said to be equivalent to Levinas’ pragmatic standpoint of ethical obligation. However, despite this essential non-equivalence, deconstruction insists that impartiality is possible and thereby commits to a concept of the particular Other as a moral person. If deconstruction requires such negotiation, as I indeed argued in Chapter 5, then it requires the pursuit of strategies, like those of Rawls and Habermas, which explicitly attempt this negotiation from the perspective of impartiality.

7.1.2 Deconstruction: not exhausted by the constructive moment

However, deconstruction does not subscribe to the “art of the possible” in any simple sense. It requires that responsibility – both individual and collective – be assumed for the negotiation’s inevitable failure. Although deconstructive pragmatics is not opposed to the constructive and reconstructive attempt to negotiate justice’s demands, it is not, for all that, exhausted by such attempts. Continued vigilance is needed with a view to identifying the ways in which the negotiation fails, a sensitivity which “compels to denounce not only theoretical limits but also concrete injustices…” 4

Having said that, Derrida’s own clarification of democracy’s conceptual limits cannot be said to apply to constructive and reconstructive theories of liberal democratic justice. Derrida pursues his analysis by intervening in texts like those of Aristotle, who

4 Derrida, “Force of Law”, 248.

257 identifies democracy with the majority voting principle.5 Consequently, the concept of democracy, which Derrida analyses, is anachronistic, and this means that his analyses miss the mark when applied to contemporary theories of liberal democracy, like those of Rawls and Habermas, which are not exhausted by the majority principle and which engage resources that Derrida does not consider.

Derrida determines democracy’s success and failure in terms of the concept of “autoimmunity”.6 Autoimmunity characterises the axiomatic developed in Aristotle’s definition of democracy, which reconciles the freedom of each, as distinct individuals, with the freedom of all, as equals, by means of the principle of numerical equality and not the equality of worth. Democracy extends, to all individuals equally, the freedom to think and act as one chooses. By assuming that no individual choice has more value than another, it equates to the axiom of equality of number. Each individual is to be counted once, as an equal to another. This means that the decision of the majority is final. Aristotle condemns the axiom of numerical equality because it allows the unworthy to arbitrate when they hold a majority. Unlike Aristotle, Derrida does not reject the principle of majority voting. Rather he sees it as a procedure which promises to uphold the freedom of each person and the equality of all. However, Derrida nevertheless wishes to indicate that the principle itself has the capacity to lead to its own destruction.7

Derrida suggests that the axiom of numerical equality “destroys” both the freedom of individuals (because it allows, in principle, the possibility of an anti-democratic majority) and the freedom of all as equals (since an anti-democratic majority would annul the very principle of the equality of all). The axiom of numerical equality also destroys itself because it allows a majority to legitimately contest it. He writes: in the name of one couple, the couple made up of freedom and equality, one agrees to a law of number or to the law of numbers (equality according to number) which ends up destroying both couples: both the couple made up of the

5 See, in particular, Derrida, Rogues, 34. 6 As Samir Haddad correctly points out, Derrida’s first substantial reference to the term “autoimmunity” occurs in “Faith and Knowledge”, 79-80. Derrida then makes extensive use of the term in both “Autoimmunity: Real and Symbolic Suicides” and Rogues. See Samir Haddad, “Derrida and Democracy at Risk”, Contretemps 4, (2004): 29-44 at 30. 7 Derrida, Rogues, 34.

258 two equalities (equality according to worth and equality according to number) and the couple equality-freedom.8

In other words, when democracy uses the axiom of numerical equality to resolve the freedom of each person as an individual, on the one hand, with the freedom of all, as equals, on the other, democracy destroys the very principles it intends to negotiate. This failure is paradigmatic of democracy itself.

In the essays published in Rogues and in his interview on the events of September 11, Derrida presents democracy as autoimmune and suicidal. Citing a number of cases in which democracy simply failed to protect itself, he writes: when assured of a numerical majority, the worst enemies of democratic freedom can, by a plausible rhetorical simulacrum… present themselves as staunch democrats.9

Among these worst enemies, Derrida includes “the most fanatical Islamists”,10 and the “Fascist and Nazi totalitarianisms [who] came into power or ascended to power through formally normal and formally democratic electoral processes”. 11 Democracy, in this sense, lawfully permits its own destruction.

Autoimmunity describes a state wherein the organism fails to recognise its own constituent parts as self and consequently attacks its very own cells and tissues. After the events of September 11, the claim was made that it was necessary to restrict the very liberties which democracy was obliged to protect, and this, with a view to immunising democracy against the potential harm which some individuals could bring to the liberty of others. On the one hand, the restriction of basic liberties permits democracy’s survival by defending the vital functions against attack from internal pathogens. On the other hand, as in the human body, it cannot be determined in advance whether this autoimmune process will harm or protect the body in question. In political terms, this tension emerges when determining who is to be included as constituent parts of the demos. Derrida notes that “although not a majority”,12 the Algerian government decided to suspend, in undemocratic and sovereign manner, the 1992 democratic elections, fearing that the electoral process would lead democratically – that is, by numerical

8 Ibid., 34. 9 Ibid., 34. 10 Ibid., 34. 11 Ibid., 33. 12 Ibid., 33.

259 majority – to the end of democracy. Derrida thinks that one cannot say that suspending democracy in order to protect it is somehow more democratic than allowing democracy to self-destruct. “The value of this strategy can never be either confirmed or confuted”.13 Democracy, Derrida writes, “has always been suicidal”14 insofar as its principle of numerical equality cannot prevent its own destruction. Democracy both succeeds and fails to resolve the freedom of the individual with the freedom of all as equals.

But does Derrida’s analysis of democracy’s constitutive failure apply to the constructive and reconstructive theories of liberal democratic justice which I presented in Chapters 1, 2 and 3? I will argue that Derrida’s account of democracy’s conceptual limits misses the mark when applied to the models of Rawls and Habermas who do not negotiate the principle of individual freedom and the principle of equality by means of the principle of numerical equality alone. In pursuing this argument, I will develop the suggestion with which Paul Patton concludes his article “Derrida’s Engagement with Political Philosophy”.15 As Patton notes, Derrida discusses very few twentieth century theorists of the democratic form of political community, relying on a limited textual base which restricts democracy to the majority voting principle, an anachronistic and simplistic concept of democracy. Patton suggests: Had he taken into account more recent theorists of liberal democracy, he would have confronted a more complex axiomatic… For many modern theorists, the value of freedom is considered to set limits to the operation of the democratic principle of equality in number. The freedom of each is of such value that neither individuals nor the numerical majority are allowed to infringe upon it.16

Indeed, contemporary liberal democratic thought – including the thought of Rawls and Habermas – limits the “tyranny of the majority” by the value of freedom.

I do not believe that Derrida would find this criticism surprising. On one occasion, in another context, he explicitly regrets his inability to engage, on its own terms, with the analytic tradition of the philosophy of language. The regret should, in my view, be extended to include the contemporary tradition of political philosophy.

13 Ibid., 33. 14 Ibid., 33. 15 Patton, “Derrida’s Engagement with Political Philosophy”, 163. 16 Ibid., 163.

260 And I feel guilty. Guilty for the length of time it has taken. Guilty because I did not make the effort that most of you are making, with moving good will, just to produce the possibility of “an argument”… guilty because I didn’t make the effort to read, when I should have read, “analytic” or “Anglo-Saxon” or “British” philosophy; an effort which could have helped this discussion, this argument or dialogue… And I have no justification for that. Simply: I failed.17

However, that Derrida himself fails to intervene in more complex theories of liberal democracy does not mean that deconstructive intervention in such contexts will not produce effects. Undertaking the task would take seriously Derrida’s definition of the philosopher. Philosophers, he writes, are: those whom in the future, reflect in a responsible fashion on these questions and demand accountability from those in charge of public discourse… someone who analyses and draws the practical and effective consequences of the relationship between our philosophical heritage and the structure of the still dominant juridico-political system that is so clearly undergoing mutation.18

Derrida can be said to fail to take up his own challenge in regard to the dominant tradition of political philosophy. However, the practical intent of his own interventionist analyses of the possibility and impossibility of democracy might still be brought to bear on the more complex theories of liberal democracy which Rawls and Habermas defend. Or so I will argue in the remaining sections.

7.2 The content of deliberative democracy: open to contestation in principle

In this section, I wish to argue that Habermas’ model of discourse ethics does not succeed in conceptually resolving the freedom of the moral person as a distinct individual with the freedom of all as moral equals. Habermas defers the moment of their resolution to the future, thereby conceding that rational consensus is impossible, in principle. I will present the argument in three steps. First (7.2.1), I will defend Habermas’ concept of procedural democracy from Derrida’s critical analysis of the inherent anti-democratic character of the democratic principle of numerical equality. In Habermas, outcomes of majority voting are legitimate only when accountable before the very autonomy which grants deliberative procedure its legitimacy. The

17 Derrida, “Response to Bennington”, 36, emphasis added. 18 Derrida, “Autoimmunity: Real and Symbolic Suicides”, 106.

261 institutionalisation of discourses and fair bargaining processes must ensure that individual autonomy remains an absolute value. Legal coercion must not destroy “the rational motives for obeying the law”.19 However, after first defending Habermas’ concept from Derrida’s simplistic account of democracy’s failure, I will argue that Habermas’ ideal of a fully intersubjective consensus, which reconciles individual autonomy and the equality of all, is neither empirically plausible nor conceptually possible (7.2.2). Finally (7.2.3), I will suggest that the empirical and conceptual inability to achieve a fully intersubjective consensus undermines Habermas’ project as he conceives it.

7.2.1 Individual autonomy: an absolute limit to deliberative outcomes

Deliberative democracy is not defined uniquely by the majority voting principle. Consequently, one cannot argue, as Derrida does with Aristotle’s concept of democracy, that its principle of numerical equality permits deliberative democracy’s own destruction. For Habermas, the majority voting principle plays a limited role within a system of procedures defined by principle (D) which, taken all together, guarantee the very individual autonomy which grants deliberative procedure either its moral validity (through rational consensus) or its legitimacy (through fair bargaining).

Majority voting is not even needed when redeeming validity claims consensually because the procedures for the consensual redemption of disputed validity claims constrains all affected to adopt the perspectives of all others so as to determine, together, an interest which all share. 20 Majority voting comes in only in cases where participants in argumentation refuse to take on the moral perspective or no clearly generalisable interest can be identified. This occurs when participants either refuse, or are unable, to abstract themselves from their purposive (pragmatic) or ethical standpoints (Chapter 3.2.1.1 and 3.2.1.2).

19 Habermas, Between Facts and Norms, 121. 20 Habermas, Moral Consciousness and Communicative Action, 65.

262 Majority voting negotiates a compromise through fair bargaining. We saw in Chapter 3.2.1.2 that bargaining – which draws on material resources, threats, promises and the like – is still subject to the discourse principle (D) but only in an indirect way.21 The discourse principle secures the impartiality of the outcome of discourse from the standpoint of procedural fairness. It spells out those procedures which provide all interested parties with an equal opportunity to influence one another during bargaining so that all affected interests come into play and have equal chances of prevailing. It also requires that the outcome be subject, in principle, to future contestation according to these same procedures. The principle of majority voting is only one part of an institutionalised system of procedures designed to guarantee procedural fairness. As such, majority outcomes remain subject, in principle, to the very deliberative practice which legitimises them.22 The majority voting principle has no legitimacy without the deliberative practices which, alone, sustain the standpoint of fairness. Habermas writes: Because of its internal connection with a deliberative practice, majority rule justifies the presumption that the fallible majority opinion may be considered a reasonable basis for a common practice until further notice, namely, until the minority convinces the majority that their (the minority’s) views are correct.23

The necessary connection between majority voting and deliberative procedure thereby rules out, in advance, a majority outcome whose content would jeopardise the very procedures by which it gains legitimacy.

Unlike Derrida then, Habermas thinks that democratic procedure can rule out, in advance, those outcomes which would destroy it. Whereas, for Derrida, democracy’s enemy is internal because its majority voting principle is self-destructive, Habermas suggests that democratic procedure rules out undemocratic outcomes by institutionalising the majority voting principle within a system of deliberative procedures. “In exercising their political autonomy citizens must not violate the system of rights that first constitutes this autonomy”.24 Majority decisions must be constrained by basic rights protecting the freedom of all.

21 Habermas, Between Facts and Norms, 165-168, 76-183, 191-192, 282-283 and 338-341. 22 Ibid., 306. See also 303-306, 291-295, and 179-180. 23 Ibid., 306, emphasis added. 24 Ibid., 180.

263 In opposition to Derrida then, we can say that deliberative democratic procedure, which makes use of majority voting in order to negotiate fair bargains, is not auto-destructive because it is limited absolutely by the value of the very autonomy which legitimises it. Deliberative democracy is, rather, auto-affirming.

7.2.2 On the im/possibility of a universal pragmatics

However, although Habermas can be defended from Derrida’s analysis of democracy’s necessary failure, the idea that justice is both possible and impossible can productively be brought to bear on Habermas’ ideal of a fully intersubjective consensus. This consensus, which, according to Habermas, reconciles the freedom of the individual with the freedom of all as moral equals, is neither empirically plausible nor conceptually possible.

In Chapter 2.2, I explained that the very possibility of communicative action requires the presupposition of the possibility of rational consensus. Communication “necessarily begins with the counterfactual assumption that universal agreement is possible”. 25 The intention of universal and unconstrained consensus is, Habermas argues, the necessary condition of all linguistic exchange. This argument, we saw, is the basis of Habermas’ entire framework of deliberative democracy. It grounds not only his presentation of principle (U), but also his account of the discourse principle (D), whose procedures satisfy (U) in actual discourses, and the democratic principle for fair bargaining. The postulate of the unavoidability of rational consensus is the building block upon which Habermas constructs his entire theory.

What if the pragmatic presupposition of the possibility of universal and unconstrained consensus were not enough to enter into communication? In what follows, I will suggest that the impossibility of our reaching non-coercive agreement is also in principle built into the very possibility of communication. As Geoffrey Bennington, Lasse Thomassen and Chantal Mouffe suggest, the goal of communication, as Habermas formulates it,

25 Habermas, “A Postscript to Knowledge and Human Interests”, 185, emphasis added.

264 would spell the end of communication itself.26 If communication is possible, then the unavoidable presuppositions of entering into communication need to include the presuppositions of both the possibility and impossibility of our reaching non-coercive agreement.

In “The Aporia of Rational Consensus” and “From Aim to Process”,27 Lasse Thomassen provides textual evidence to suggest that Habermas now accepts that the idea of rational consensus is unrealisable, even in principle.28 Habermas himself concedes that the ideal is not merely unrealisable empirically but also conceptually. After outlining why, in the face of empirical constraints, Habermas concedes the need for an idealising proviso (7.2.2.1), I will indicate certain conceptual problems with the Habermasian framework (7.2.2.2).

7.2.2.1 Rational consensus: empirically implausible

Thomassen indicates that, when outlining his universal pragmatics of communication, Habermas states that the idealisation of consensus is realisable if the empirical circumstances are amenable. At other times, Habermas concedes that the idealisations of rational discourse are, if not in fact, then at least in principle realisable, their realisation once again prevented by empirical constraints. Participants must: suppose that a rationally motivated agreement could in principle be achieved, whereby the phrase “in principle” expresses the idealising proviso: if only the argumentation could be conducted openly enough and continued long enough.29

For Thomas McCarthy, the addition of an idealising proviso makes the ideal of rational consensus unsuitable for modern democracies.30 McCarthy does not question – as I intend to, in a moment – Habermas’ pragmatic justification of the conceptual presuppositions of communication. Rather, he questions whether the ideal of rational consensus is indeed appropriate if it is rarely, if ever, achieved. Following Rawls,

26 Geoffrey Bennington, “Ex-Communication”, paper presented at the Social and Political Thought Seminar, University of Sussex, March 4, 1996, http://userwww.service.emory.edu/~gbennin/habermas.doc; and Thomassen, Deconstructing Habermas, 27-33 and 33-37. 27 Thomassen, Deconstructing Habermas, 27-33 and 33-37. 28 In what follows, I use Thomassen’s account as a skeleton structure. 29 Habermas, The Theory of Communicative Action (Volume 1), 42. 30 McCarthy, “Practical Discourse: On the Relation of Morality to Politics”, 241-244.

265 McCarthy argues that a conception has to be realistic and he thus suggests that different forms of agreement – for example, reasonable overlapping consensus – might be more appropriate for modern democracies under conditions of value-pluralism.31

McCarthy considers, first, Habermas’ account of interests and needs, which he argues is disastrous for the possibility of consensus. 32 As we know, rationally motivated consensus requires the general acceptability of the anticipated consequences of a norm for the legitimate satisfaction of needs. Shared, cultural values and interpretations provide the framework of social interaction in which needs and interests are expressed. McCarthy doubts whether it is possible to achieve a shared evaluative basis for the interpretation of needs within the framework of a pluralistic society.33 McCarthy thereby aligns himself with Rawls, who also doubts that uncoerced consensus can obtain on a comprehensive, evaluative doctrine (see Chapter 3.1.1.2). It is not likely, states McCarthy, that discourse, which validates norms in terms of the satisfaction of participants’ needs and interests, will admit of closure, because it is, in principle, open to participants in practical discourse to call into question the very evaluative language which frames the debate. In modern democracies, debate often turns around the very terms in which problems are identified and posed, data selected and described, and so on. In other words, normative disagreement turns on value disagreement and Habermas himself recognises that we cannot presuppose that rational agreement on values is possible. Cultural and ethical values, though more or less widely shared, “do not count as universal” and “can be made plausible only in the context of a particular form of life”.34 In a pluralistic society, it is even more unlikely that values can serve as the primary basis for consensus. And yet, such consensus is necessary if the determination of shared needs and interests is to be empirically achieved.

McCarthy considers, next, Habermas’ response to a situation in which interests are not only different but competing. 35 Although negotiating a compromise through fair

31 Ibid., 198 and 244. 32 Ibid.,183. For McCarthy’s general discussion of the problems with Habermas’ account of interests and needs, see 182-187. 33 “Evaluative expressions or standards of value have justificatory force when they characterize a need in such a way that addressees can, in the framework of a common cultural heritage, recognize in these interpretations their own needs”. Habermas, The Theory of Communicative Action (Volume 1), 92. 34 Habermas, The Theory of Communicative Action (Volume 1), 42. 35 McCarthy, “Practical Discourse: On the Relation of Morality to Politics”, 187-192.

266 bargaining is a reasonable means for dealing with interest-conflicts, it is subordinate to the achievement of rational consensus in practical discourse because it fails to capture the core of our sense of justice. Compromise through fair bargaining remains a second- best alternative when discourse proves there to be no common interest.36 Rational consensus is achieved only when participants discover a general interest by distancing themselves from particular “first-order” interests, adopting an impartial standpoint in which one’s own interests count for no more or less than those of any other participant. Habermas writes: We have to consider what general interest all those involved would agree on if they were to adopt the moral standpoint of impartiality, taking into account all the interests affected.37

McCarthy argues that, under modern conditions of value-pluralism, fair bargaining appears unavoidable on the Habermasian model. Even if we outfit our good-willed participants with the intelligence and sensitivity to understand and appreciate the needs, interests and viewpoints of others, we are still far from rationally motivated consensus. The latter can only be achieved if all can come to agree on the authentic interpretation of each individual’s needs, from the very different hermeneutic and evaluative starting points afforded by a pluralistic and individualistic culture. It is highly unlikely that persons will be able to pursue this process to the end. The obstacles to its empirical achievement are formidable. Indeed, this is why Habermas adds the aforementioned “idealising proviso” that a rationally motivated agreement is possible “if only the argumentation could be conducted openly enough and continued long enough”.38 McCarthy concludes that, by idealising what is empirically implausible, Habermas maintains a residue of the Kantian dichotomy between the phenomenal and the noumenal, in the form of a tension between situated reasoning and the transcendence of situatedness required by his model. 39

McCarthy concludes that it is not enough to insist for conceptual reasons alone that rational consensus is possible. Rather, like Rawls, McCarthy thinks that the notion of an acceptable, public point of view also needs to be realistic and practicable.40

36 Habermas, Moral Consciousness and Communicative Action, 68-76. 37 Habermas, The Theory of Communicative Action (Volume 2), 94. 38 Habermas, The Theory of Communicative Action (Volume 1), 42. 39 McCarthy, “Practical Discourse: On the Relation of Morality to Politics”, 181-182. 40 Ibid., 198.

267

7.2.2.2 Rational consensus: conceptually impossible

Thomassen, Bennington and Mouffe go one step further than McCarthy by claiming that rational consensus is not merely empirically implausible but also conceptually impossible. The concept of rational consensus is both the condition of the possibility of communication and the condition of the impossibility of communication. Using Derrida’s vocabulary, Thomassen suggests that communication is aporetic: the concept of rational consensus implies both the possibility and impossibility of communication. Thomassen writes: The assumption of the possibility of a rational consensus makes communication possible; but in the state of a rational consensus, communication is both superfluous and impossible. There is neither need, nor room for communication in this state. Rational consensus is, thus, the end to or the limit of communication; it is both the condition of possibility and the limit of the rationality of discourse.41

In other words, although the pragmatic presupposition of the concept of rational consensus is a necessary condition of the possibility of consensually-oriented communication, communication would terminate if the concept of rational consensus were to be actually realised. Bennington presents a similar point. Once one realises that the concept of rational consensus not only implies the possibility of communication but also heralds its impossibility, then entering into communication requires affirming a further pragmatic presupposition which contradicts the first, namely, that rational consensus is impossible. This means that the presupposition of the necessity of a rational consensus is not fully rational. Indeed, to be willing to communicate with others, one must be willing to pragmatically assume both the possibility and impossibility of achieving a rational consensus.42 Chantal Mouffe also claims that a non-coercive consensus cannot be attained. “Consensus is a conceptual impossibility”.43 Like Bennington and Thomassen, Mouffe expresses the impossibility of rational consensus using Derridean terms. She writes: We could say – this time using Derridean terminology – that the very conditions of possibility of the exercise of democracy constitute simultaneously the

41 Thomassen, Deconstructing Habermas, 28. 42 Engaging in a fictive dialogue with Habermas, Bennington writes: “The end of communication as you formulate it would be the end of communication itself. So if we want to communicate, we also have to want not quite to understand each other…” Bennington, “Ex-Communication”. 43 Mouffe, “Democracy, Power and the Political”, 255.

268 conditions of impossibility of democratic legitimacy as envisaged by deliberative democracy.44

Thomassen provides reason to believe that Habermas himself concedes this very point. It appears to me that this admission is devastating for discourse ethics, since the entire account is premised on the reconstructive justification of the necessity of the pragmatic presupposition of the idea of rational consensus. In what sense does Habermas think that the possibility of rational consensus is self-defeating, and how does he attempt to defend himself against the problems which such a concession heralds for his own theoretical framework?

First, Habermas does come to affirm that, if actually achieved, rational consensus would render further communication unnecessary. He writes: This entropic state of a definitive consensus, which would make all further communication superfluous, cannot be represented as a meaningful goal because it would engender paradoxes (an ultimate language, a final interpretation, a nonrevisable knowledge etc.).45

Were rational consensus to be actually achieved, then its content would be non- revisable and absolute. For Habermas, such a situation contradicts the merely hypothetical status which reconstructive justification is entitled to claim for its results. On the one hand, the method of rational reconstruction presents its results as universally necessary and objective. On the other hand, the reconstruction is itself always immanent to practices of social interaction, and does not transcend its local context. This means that its results can only claim a hypothetical status and must be continually tested against new interactions, along the lines of a reconstructive science. Habermas thus claims that the results of reconstructive analysis are necessarily revisable. He writes that “We have to put our reconstructions up for discussion…”,46 thereby checking them against individual cases of interaction. Now, rational consensus would effectively generate non-revisable and absolute knowledge. This is self-defeating because it contradicts the necessarily revisable status which immanent analysis can claim. If I understand Habermas correctly, he is claiming that we must put our reconstructions up for discussion, entering into communication again and again, precisely because the

44 Mouffe, The Democratic Paradox, 48-49. 45 Jürgen Habermas, “Reply to Symposium Participants”, Cardozo Law Review 17, no. 4-5 (1996): 1477- 1557 at 1518. 46 Habermas, Moral Consciousness and Communicative Action, 97.

269 justification of the possibility of rational consensus has only hypothetical, not absolute, status. A rational and definitive consensus would claim absolute status, thereby contradicting the hypothetical status which an immanent and reconstructive analysis of the possibility of communication can claim.

However, this suggests that we need to assume that a definitive, rational consensus is not possible, in principle, and such an admission, I have suggested, appears to be devastating for Habermas’ account. It means that participants who presuppose the possibility of rational consensus are, as Bennington suggests, not fully rational because they do not also affirm that rational consensus is impossible.

How does Habermas himself attempt to account for this situation? If I understand him correctly, Thomassen claims that Habermas attempts to account for this problem by including the affirmation of the impossibility of rational consensus as a procedure in a processual account of discursive testing.47 That is, he adds, to his characterisation of (D), the procedural requirement that participants agree that the result of discourse be open to contestation, in principle.

The affirmation that results of discourse are to remain open to contestation, in principle, effectively admits the impossibility of a fully rational and non-revisable consensus in the present. When participants are rationally obliged to affirm that their actual consensus remains open, in principle, to contestation, they are rationally obliged to affirm that no empirical consensus is ever fully rational. If it were, it would not be open to contestation. In this sense, Habermas affirms the necessity of both the presuppositions of the possibility and impossibility of rational consensus by including the affirmation of the impossibility of rational consensus as a procedural condition of moral discourse. On the one hand, he nevertheless maintains the view that the presupposition of the possibility of rational consensus is the necessary condition of communication. On the other hand, he includes the view that rational consensus is, in principle, impossible, by adding the procedural condition that the content of any actual consensus is to remain open, in principle, to future contestation. Habermas writes: “The process of argumentation as such must remain open to any relevant objections and any

47 Thomassen, Deconstructing Habermas, 33-34.

270 improvements of our epistemic condition”.48 As Thomassen suggests, this additional procedural requirement exposes any actual consensus to the potential “no” of any discourse participant.49 The possibility of a final consensus is excluded in the sense that any consensus is only conditional: it must remain open, in principle, to the possibility of a “no”.50

In this sense then, rational consensus is essentially a future possibility and not one which can ever be achieved in the present. As Habermas himself recognises, quoting Albrecht Wellmer: Even if the ideal reference points are understood as aims that are not attainable in principle, or attainable only approximately, it remains “paradoxical that we would be obliged to strive for the realisation of an ideal whose realisation would be the end of human history”.51

Thomassen thus suggests that we think of rational consensus as a “to come” in Derrida’s sense: a future which is not a continuation of the present, but which is heterogeneous to the present itself. This future is both empirically and conceptually impossible and remains necessarily postponed.52 Rational consensus is necessarily impossible.

I noted earlier in this chapter (and also in Chapters 2 and 3) that Habermas’ entire framework of deliberative democracy rests on his argument that the presupposition of the possibility of universal and unconstrained consensus is pragmatically necessary for communicative action. However, if the willingness to enter into communication pragmatically requires not only the presupposition that rational consensus is possible but also that it is not possible in principle, and if, moreover, there is evidence to suggest that Habermas agrees, what implications follow for the model of deliberative democracy which he defends?

48 Habermas, “From Kant’s “Ideas” of Pure Reason to the “Idealising” Presuppositions of Communicative Action”, 102. 49 Thomassen, Deconstructing Habermas, 33. 50 Ibid., 34. 51 Habermas, On the Pragmatics of Communication, 365. As indicated in the Introduction, Habermas is quoting Albrecht Wellmer’s Endgames: Essays and Lectures on the Irreconcilable Nature of Modernity, 141. 52 Thomassen, Deconstructing Habermas, 35.

271 7.2.3 Rethinking the status of deliberative democracy

To deliberative democracy, with its impartial procedures, Habermas ascribes a basis in morality. We saw, in Chapter 2, that he believes that philosophy’s proper task is to “explain and ground the moral point of view”, 53 clarifying the pragmatic presuppositions employed by those pursuing the moral standpoint and the procedural criteria which would satisfy it. It is the satisfaction of the procedural criteria implied by (U) which, for Habermas, guarantees the legitimacy of law. Democracy must institutionalise procedures to guarantee (U), those which guarantee full inclusion, equality, the consideration of the interests of other participants on their own terms, and so on. Formal processes of law-making in complex, pluralistic societies can claim legitimacy on the condition that they take into account the concerns and validity claims of ordinary citizens. We saw in Chapter 3.2.1.2 that the legitimacy of decision-making processes depends on the existence of informal civilising organisations and an active public sphere in which citizens can voice their concerns. When procedures guarantee the full inclusion and equality of all, as well as the consideration of the interests of those affected by a disputed law, the determination of law can be said to be legitimate. Citizens must be capable, in principle, of viewing themselves as autonomous co- legislators of legal norms.

What can be said about the status of the moral standpoint in relation to deliberative democracy if, as I have suggested, the pragmatic presupposition of its possibility is also its impossibility? In Derrida’s terms, we could say that deliberative democracy is aporetic, defined by a paradox. The procedural norms which deliberative democracy institutionalises – full inclusion, equality, the consideration of the interests of other participants on their own terms and so on – cannot be satisfied, in principle. Given that force is, for Derrida, irreducible, a deconstructive pragmatics of intervention is not exhausted by the satisfaction of deliberative procedures. Instead, it demands on-going responsibility, on the part of the users of law, for the systemic effects of laws. This responsibility cannot easily be attributed to identifiable individual agents who deliberate together. As I argued in Chapter 5.1.2, the responsibility for the systemic effects of laws equates to something like Fraser’s political critique which identifies a range of

53 Habermas, Moral Consciousness and Communicative Action, 211.

272 contingent but systemic social processes which culminate in extensive harms (malnutrition, medical neglect, environmental toxicity, homelessness and so on) and which are stratified in society in terms of gender, colour and class.

At this point, however, I wish to suggest that nothing in the idea that rational consensus is im/possible should undermine Habermas’ commendable reasons for defending deliberation over its alternatives. These undesirable alternatives include traditional sources of authority and the scientisation of politics. Habermas contests the authority of cosmological and religious doctrines, of princes and even of dogmatic philosophical doctrines such as rational intuition because the authority of such doctrines is rooted in an eternal order of moral truth or a superior natural privilege and not in autonomous rational deliberation alone.54 If rational deliberation is both possible and impossible, this does not mean that it has no authority, only that its authority must remain, in principle subject to the very rational deliberation which makes it both possible and impossible. Habermas’ account of rational deliberation, and an account which defends both the possibility and impossibility of rational consensus, are united by a commitment to the view that there is no standpoint external to citizens’ own perspective when questions of justice arise between them. The central difference between the two positions concerns the status of the norms to which each appeals.55 The norms of discourse ethics – full inclusion, equality, considering the interests of others on their own terms and so on – are presented as necessary and universal conditions of any moral standpoint. In contrast, the Derridean perspective would affirm such norms, while insisting that these norms themselves be understood as attempts to negotiate the demand to resolve the responsibility to respond to the particularity of an individual case with the need for impartiality.

The second foe, against which Habermas defends rational deliberation, is the scientisation of politics, which is pursued by positivist and systems theoretic approaches to the study of society. He believes that the scientisation of politics reduces moral and political decision to the expert exploitation of technical knowledge about systems of human interaction and effectively discounts the distinctive nature of normative value

54 Habermas, Communication and the Evolution of Society, 184. 55 I am, once again, indebted to Thomassen for this point. See Thomassen, Deconstructing Habermas, 121.

273 judgments. 56 In positivist and systems theoretic approaches to society, empirical descriptions of the law-like functions of human behaviour, social structures and institutional mechanisms open the way for the expert exploitation of manipulable system elements with a view to administering a stable well-organised whole, that is, “system integration”. However, for Habermas, the scientistic account of normative value judgment is inappropriate: since normative judgment about right action can be neither verified nor falsified by empirical observation, it is instead interpreted as an expression of mere personal preference, which is then empirically verified by observable behaviour, expressed in lawful form and used by experts as potential for system manipulation. Habermas argues that the regulation of systems of social integration by such means is illegitimate without reference to the legitimating force of normative judgment. Indeed, despite his differences with Rawls, we saw that Habermas views the latter’s theory as an ally because it legitimates political principles with reference to the formal conditions of possible consensus formation among persons themselves as participants in decision-making. 57 An account of rational deliberation which emphasises the possibility and impossibility of rational consensus does not need to withdraw its support from a perspective which takes seriously citizens’ own perspectives on their shared action norms. However, it does require the additional idea that justice is not exhausted by any apparent achievement of consensus.

56 See the following texts for further discussion: Habermas, Theory and Practice, 263-276; Jürgen Habermas, “Praktische Folgen des wissenschaftlich-technischen Fortschritts”, in the German edition of Theorie und Praxis (Frankfurt: Suhrkamp, 1971), 336-359; “The Scientisation of Politics and Public Opinion” in Jürgen Habermas, Towards a Rational Society, trans. Jeremy J. Shapiro. (London: Heinemann Educational Books, 1971), 62-80; Jürgen Habermas, “Some Conditions for Revolutionalizing Late Capitalist Societies”, Canadian Journal of Political and Social Theory 15, no. 1-2 (1991): 35-45; Habermas, Legitimation Crisis, 24-31, 111-117, and 142-143; and Habermas, Communication and the Evolution of Society, 180-181. 57 Habermas presents Rawls’ theory, along with Paul Lorenzen’s examination of the norms of speech practice and Karl-Otto Apel’s determination of the normative content of the presuppositions of practical discourse, as one of several recent attempts to validate normative judgment as the ground of political decision, attempts which converge around the question of the procedures and presuppositions under which justifications legitimately produce consensus. See Habermas, Communication and the Evolution of Society, 205, 184. See also, Habermas, The Theory of Communicative Action (Volume 1), 436 and 230; Habermas, The Theory of Communicative Action (Volume 2), 290 and 411; and Habermas, “Further Reflections on the Public Sphere”, 447. See Paul Lorenzen, Normative Logic and Ethics (Zurich: Institut Mannheim, 1969); Karl-Otto Apel, “Sprechakttheorie und transzendentale sprachpragmatik: Zur Frage ethischer Normen”, in Sprachpragmatik und Philosophie, ed. Karl-Otto Apel (Frankfurt: Suhrkamp 1976), 10-173; and Karl-Otto Apel, “The a priori of the Communication Community and the Foundations of Ethics: The Problem of a Rational Foundation of Ethics in the Scientific Age”, in Towards a Transformation of Philosophy, ed. Karl-Otto Apel (London: Routledge & Kegan Paul, 1980), 225-300.

274 We saw in the Introduction that Habermas fears that deconstruction does not allow one to defend any norm over another. By reflecting on Derrida’s own reference to “an ethics of discussion”, in a lengthy footnote devoted to Habermas in “Afterword: Toward an Ethic of Discussion”,58 Thomassen once again provides a possible response. In the context of his response to Searle’s and Habermas’ criticisms, Derrida suggests that the “ethics of discussion” would need to draw on the rules, however imperfect, which persons share, this being the only way that one can engage with others. This means that, when engaging with Habermas, Derrida affirms the need to closely study what one evaluates, listen to both sides of an argument, and proceed carefully with an open mind.59 An ethics of discussion, Derrida-style, requires that one listen to the other, attempting to understand the particularity of their thought, discussing the theses of the other in their own terms as carefully as possible.60 Such norms are necessary because they are the norms of our tradition and we have no others with which to begin. They are not, in fact, very different from those to which Habermas appeals, namely, full inclusion, equality, and the attempt to abstract oneself from one’s own subjective perspective to consider the interests of other participants on their own terms. However, their status is different for each thinker. Whereas, for Habermas, the norms are rationally necessary in a universalistic sense, for Derrida, they are discovered in a tradition which we share, one with which we cannot but engage but which is itself a contingent determination of the possibility and impossibility of communicating. As Thomassen notes, whereas for Habermas, one cannot both appeal to and put into question the norms of philosophical argument, Derrida believes an ethics of discussion can. Whereas Habermas affirms as rational, the norms of philosophical argument, albeit conceding the essential possibility of future contestation, Derrida both affirms and denies the rationality of the norms of philosophical argument. When there are norms, it is finished, everything is done, everything follows from the norms. There is no more responsibility when there are norms… There is ethics precisely where I am in performative powerlessness.61

58 Derrida, “Afterword: Toward an Ethics of Discussion”, 156-158. See also Jacques Derrida, “Biodegradables. Seven diary fragments”, Critical Inquiry 15, no. 4(1989): 812-873 at 821. 59 Thomassen, Deconstructing Habermas, 121. See Derrida, “Afterword: Toward an Ethics of Discussion”, 157. See also Derrida, Mémoires: For Paul de Man, 259-260. 60 Derrida, “Afterword: Toward an Ethics of Discussion”, 158. 61 Jacques Derrida, “Performative Powerlessness: A Response to Simon Critchley”, trans. James Ingram, in The Derrida-Habermas Reader, ed. Lass Thomassen (Chicago: The University of Chicago Press, 2006), 111-114 at 113.

275 Derrida wishes to emphasise that there is no ethics of discussion without a certain critical attitude toward the very norms which one takes up.

Indeed, it is by drawing upon such norms in his response to Habermas’ objections that Derrida criticises Habermas in turn for violating the very academic and philosophical standards to which both are committed. With a stupefying tranquillity, here is the philosopher of consensus, of dialogue and of discussion, the philosopher who claims to distinguish between science and literary fiction, between philosophy and literary criticism, daring not only to criticise without citing or giving a reference for twenty-five pages, but, even worse, justifying his nonreading and his atmospheric or hemispheric choices by this incredible alibi: “Since Derrida does not belong to those philosophers who like to argue [argumentationsfreudigen Philosophen, my emphasis!], it is expedient [ratsam] to take a closer look at his disciples in literary criticism within the Anglo-Saxon climate of argument in order to see whether this thesis really can be held”. …Such procedures still surprise me, and I have difficulty believing my eyes, in my incorrigible naiveté, in the confidence that I still have, in spite of everything, in the ethics of discussion (in morality, if not in moralism), in the rules of the academy, of the university, and of publication.62

Drawing Habermas’ own criteria to the fore as the basis for dialogue between them, Derrida argues that one cannot be said to pursue an ethics of discussion and dialogue without “attentively reading and listening to the other”,63 respecting the elementary rules of philology and of interpretation, and taking care not to confound science and chatter. Habermas fails to do this. Derrida thereby turns Habermas’ preferred charge of “performative contradiction” against the man himself: Is there a “performative contradiction” more serious than that which consists in claiming to discuss rationally the theses of the other without having made the slightest effort to take cognisance of them, read them, or listen to them?64

In this way, Derrida redeploys the conceptual resources which belong to Habermas’ theory so as to determine which specific elements of the current determination warrant a conceptual and practical reformulation.

I have attempted to demonstrate, following Thomassen, that Habermas comes to acknowledge that the possibility of communication involves two conflicting pragmatic presuppositions, namely, the possibility and impossibility of achieving a rational

62 Derrida, “Afterword: Toward an Ethics of Discussion”, 157, emphasis added. Please note that the first emphasis, marked “my emphasis!”, is Derrida’s. 63 Ibid., 157. 64 Ibid., 158. See also Derrida, Mémoires: For Paul de Man, 260.

276 consensus. I have also suggested, again following Thomassen, that Habermas attempts to account for the two conflicting suppositions in a processual account of the discursive testing of validity claims. By this, I mean that Habermas adds a further procedural condition to his characterisation of (D), namely, that participants are to affirm that any consensus is to remain subject, in principle, to its future contestation. Consensus is to be open to contestation, in principle. This means that rational consensus cannot be achieved in the present or, indeed, in any future present, but remains structurally “to come” in the Derridean sense.

I will now turn to Rawls’ account of justice as fairness, within a political liberalism, asking whether Derrida’s notion that justice is both possible and impossible can productively be brought to bear on Rawls’ idea of an acceptable public viewpoint.

7.3 The content of political liberalism: open to contestation in principle

In this section, I wish to argue that Rawls’ mature defence of his theory of justice as fairness also concedes the impossibility of achieving a fully objective interpretation of the idea of an acceptable public viewpoint. Like Habermas, Rawls effectively concedes that we, the citizens who take up an impartial standpoint, modelled by the original position, must recognise that its content remains open to contestation, in principle. Rawls refers to this idea as a “present-time-of-entry interpretation of the original position”.65 On the one hand, we must assume that, by entering into the original position at a particular moment in time, we can determine which principles parties, as our representatives, should adopt. On the other hand, he insists that citizens in civil society can, in principle, re-enter the original position “at any time”.66 Re-entering the original position allows one to re-check public principles against reflective considered judgments about justice which, as Rawls recognises, change in time as generations give

65 Rawls, Justice as Fairness: A Restatement, 106. See, in particular, 86-87. See also Rawls, “Reply to Habermas”, 399. 66 “I use the idea of the original position as a natural and vivid way to convey the kind of reasoning the parties may engage in…We can enter it at any time. How? Simply by reasoning in accordance with the modelled constraints, citing only reasons those constraints allow”. Rawls, Justice as Fairness: A Restatement, 86.

277 rise to new groups who face different political problems.67 Rawls thus affirms, explicitly, that although the original position imagines that parties view their selection of principles to hold in perpetuity, thereby representing impartiality between all present and future persons, this does not mean that we, as citizens committed to impartiality, are to view the outcome of the procedure as fixed “once and for all”.68

The affirmation of justice’s essentially revisable nature is, I claim, equivalent to Habermas’ acknowledgement that a further procedural condition must be added to his characterisation of (D), namely, the condition that participants are to affirm that any consensus is to remain subject, in principle, to the essential possibility of being contested. I thus claim that, in both Rawls’ and Habermas’ mature theories of justice, justice remains structurally “to come” in the Derridean sense.

I will present the argument in three steps. At first (7.3.1), as I did with Habermas, I will defend Rawls’ account of justice from Derrida’s critical analysis of democracy’s anti- democratic potential. Rawls’ theory is not self-defeating in the sense which Derrida thinks democracy is. I will show that, for Rawls, the majority voting principle is limited in an absolute sense first, by the basic liberties which are removed from majority regulation by a constitution which protects them, and second, by the limits of fairness.

I will then argue that Rawls’ political constructivism must concede that, at any given moment in time, the content of the original position cannot be fully determined, in principle (7.3.2). I will claim that, in both Theory and Political Liberalism, the original position cannot provide definitive criteria to determine when the “inevitable imperfections”69 of constitutional procedure are no longer equitably shared. This supposes that it is always necessary to re-enter the original position, at a subsequent point in time, calling on others to do likewise, so as to test our principles and political values against our changing considered judgments about justice.

67 Rawls, Justice as Fairness: A Restatement, 86. For a consideration of the need to revisit the original position procedure so as to reassess the legitimacy of the Australian constitution against changing considered reflections on the status of the Indigenous Australians, see Paul Patton’s “Rawls and the legitimacy of colonial States: the case of Australia”, paper presented at the Political Seminar, University of Exeter, January 9, 2008. 68 Rawls, “Reply to Habermas”, 399. 69 Rawls, Theory, 355/312 rev.

278

In so arguing, I will preface the move to the final section of the chapter (7.4) which, as I indicated at the outset, argues that the structural perfectibility of justice is the condition for its critical function. I will thus suggest that the fact that outcomes of the original position procedure remain open to contestation at any time does not mean that the procedure is not an appropriate method for constructing the content of a reasonable political conception. On the contrary, I will need to demonstrate that the complete determinability of the original position procedure would undermine the practical possibility of revisiting the procedure, at future moments in time, thereby surrendering its critical function.

7.3.1 The priority of liberty

Like Habermas’ theory of deliberative democracy, Rawls’ theory of justice as fairness within a political liberalism is not defined uniquely by the majority voting principle. This means that one cannot argue, as Derrida does with Aristotle’s concept of democracy, that its principle of numerical equality can lead to political liberalism’s own destruction.

In Theory, the majority principle is one component of a set of constitutional procedures to which majority outcomes are themselves subject. Within the framework of justice as fairness, the role and scope of the majority principle is specified at the second stage of a four-stage sequence which attempts to apply the two principles of justice. 70 After selecting the principles in the original position, parties move to a second stage, a constitutional convention, where they are delegates to the choice of a constitution. The veil of ignorance is partially lifted so that, while they still have no information about their own social position, they do know the general facts about their own particular society. Delegates are then able to choose the most effective just constitution from among the options, one which satisfies the principles of justice and is best calculated to lead to just and effective legislation.

70 Ibid., 195-201/171-176 rev.

279 There are two limitations on the delegates’ choice of a constitution. First, the basic liberties of all are to be equally protected. Second, procedural arrangements are to be both just and feasible, leading to a just and effective system of legislation. Rawls believes that a majority voting principle is a practical necessity and must be included in the procedural arrangements of a system of legislation. However, he insists that its outcomes must be subject to the standard which the first principle of equal liberty sets. As Rawls states: [the] main requirements [of the first principle of equal liberty] are that the fundamental liberties of the person and liberty of conscience and freedom of thought be protected and that the political process as a whole be a just procedure.71

This means that political procedure –which includes the majority voting principle – is subject to two conditions. First, its procedures are limited by the basic liberties specified by the constitution. The basic liberties, we saw, include political liberty (the right to vote and to hold public office) and freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person; the right to hold personal property; and freedom from arbitrary arrest and seizure as defined by the rule of law.72 Rawls writes: Unless constitutionally recognised restrictions on majority legislation and other elements are in place, the basic liberties and other freedoms will not be properly protected. Nor will democracy be firmly supported and gain the willing consent of the people.73

The extent to which majority rule is to be restricted by the basic liberties is to be defined by the constitution in a manner which applies equally to all.74 Nothing can justify the restriction of the basic liberties except more liberty for all equally. 75

Political Liberalism pursues the same idea by recognising that there is the greatest urgency for citizens to reach practical agreement in judgment about constitutional

71 Ibid., 199/174-175 rev. 72 Ibid., 60/53 rev. 73 Rawls, “Reply to Habermas”, 424. 74 Rawls, Theory, 228/200 rev. Rawls writes, “Certainly we are not required to acquiesce in the denial of our and others’ liberties, since this requirement could not have been within the meaning of the duty of justice in the original position, nor consistent with the understanding of the rights of the majority in the constitutional convention”. Rawls, Theory, 355/312 rev. See also John Rawls, “The Justification of Civil Disobedience”, in Collected Papers, ed. by Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 176-189 at 180-181. 75 Rawls, Theory, 229/201 rev.

280 essentials, which limit not only the scope of majority rule but also specify the equal basic rights and liberties of citizenship which all legislative majorities are to respect.76 “The constitution specifies a just political procedure and incorporates restrictions which both protect the basic liberties and secure their priority”.77 These restrictions “publicly express on the constitution’s face, as it were, the conception of social cooperation held by equal citizens in a well-ordered society”.78 In effect then, the priority of the basic liberties, embodied in a constitution, effectively removes them from majority regulation altogether. The aim, in so doing, is to protect the free public use of our reason in all matters which concern the justice of the basic structure and its social policies.79

Rawls does agree, however, that even the priority of the basic liberties cannot guarantee complete protection from the “tyranny of the majority” which Derrida fears. Outcomes of majority voting may well be legitimate (when they do not deny the basic liberties) while also unjust. Like a criminal trial, Rawls’ “imperfect procedural justice” cannot guarantee a just outcome. It guarantees only that the substantive procedures themselves are fair. By agreeing to a democratic constitution, as an example of imperfect procedural justice, one also accepts the principle of majority rule, as a means for ascribing equally a say to all, and to each as individuals.80 In thereby agreeing to both the benefits and drawbacks of a democratic constitution, one has a political duty to comply with what the majority enacts, even when it may be unjust. This is why Rawls thinks that a second condition must apply to the majority voting principle, namely, fairness consistent with the moral-political virtue of fairness, or what Rawls refers to in Political Liberalism as the Reasonable.81 It is important that the burden be acceptable to reasonable persons, suggesting that it must be “more or less evenly distributed over different groups in society” and must “not weigh too heavily in any particular case”.82 We must carry the burden of injustice, only as long as it is a part of the inevitable difficulties of working with a constitutional regime, distorted by the burdens of

76 Rawls, Political Liberalism, 227. 77 Ibid., 339. 78 Ibid., 338. 79 Ibid., 348. 80 Rawls, Theory, 229/201 rev. 81 Rawls, “Reply to Habermas”, 427-433. For earlier expressions of this view see also Rawls, Theory, 355/312 rev.; and Rawls, “The Justification of Civil Disobedience”, 180-181. 82 Rawls, Theory, 355/312 rev. See also Rawls, “The Justification of Civil Disobedience”, 180-181. Although I am referring to the earlier texts here, the idea is carried through in Rawls’ discussion of the difference between legitimacy and justice in his “Reply to Habermas” (427-433).

281 judgment and, moreover, only as long as the burden is equitably shared. This is why Rawls recognises that the duty to comply is problematic for permanent minorities who have suffered from injustice for many years.83 Our duty to comply is limited by fairness; the duty consists in sharing equitably in the inevitable imperfections of a constitutional system.

These two conditions – the priority of the basic liberties and the requirements of the Reasonable – limit absolutely the outcomes of majority voting. Rawls thereby sidesteps what we saw Derrida refer to as the suicidal tendency of democracy. The priority of liberty means that the political and basic liberties can only be restricted in one case, namely: [when] it can be reasonably argued from the specific nature of the present situation that there exists a constitutional crisis in which democratic institutions cannot work effectively and their procedures for dealing with emergencies cannot operate.84

The liberties are of such priority that free political speech can be restricted if and only if a constitutional crisis exists, requiring the more or less temporary suspension of democratic political institutions. Consequently, in the case to which Derrida refers, namely, the suspension of democratic procedure during the 1992 Algerian elections, Rawls would claim that a constitutional crisis was in existence and, consequently, that the suspension of certain political principles (the principle of equal participation including the right to vote and hold public office) was warranted “solely for the sake of preserving these institutions and other basic liberties”.85 The priority of liberty is, for Rawls, absolute, which is why Rawls arranges the two principles in serial order with the first (equal basic liberties) prior to the second (fair social and economic inequalities subject to the difference principle). Not even social and economic gain can compensate for inequalities among individuals in the basic liberties because “if the equal basic liberties of some are restricted or denied, social cooperation on the basis of mutual respect is impossible”.86

83 Ibid., 355/312 rev. 84 Rawls, Political Liberalism, 354. 85 Ibid., 355. 86 Ibid., 337.

282 As such, Rawls’ theory negotiates the principle of the freedom of moral persons, as distinct individuals, and the freedom of all, as moral equals, in a manner which is more nuanced than the model of democracy which Derrida considers. In Rawls’ theory then, democracy does not, as Derrida fears, lead to its own destruction but rather includes constitutional measures designed to protect public institutions and other basic liberties in times of constitutional crisis.

7.3.2 The undecidability of the original position procedure

In the preceding section, I argued that the priority of the basic liberties limits, absolutely, the outcomes of majority voting. Moreover, the requirements of the Reasonable are to ensure that the inevitable imperfections of a constitutional regime are equitably shared.

In this section, I will claim that, in both Theory and Political Liberalism, the original position procedure, applied to the constitutional convention, legislation and judicial decisions, cannot provide definitive criteria to determine when the inevitable injustices of constitutional procedure are not equitably shared. This problem has the potential to institutionalise those very permanent minorities, who Rawls believes have a right to civil disobedience. This contradiction can only be resolved on Rawls’ account by affirming that it remains possible, in principle, to revisit the original position and reassess public values and principles.

First, I will examine Theory’s “four-stage sequence”, whereby, with reference to the idea of the original position, principles of justice are determined and applied. I will argue that the original position procedure cannot determine, in advance, the criteria by means of which the duty to comply with unjust outcomes is to be balanced against the duty to resist (7.3.2.1). Rather, the original position must be re-entered so as to assess not only the public principles embodied in the constitution, but also legislative and judicial outcomes, against new, considered judgments of injustice.

283 Next, I will consider whether Rawls’ mature account of an overlapping consensus on political values can provide the desired criteria. I will argue, once again, that under conditions of value-pluralism, the political values on which an overlapping consensus obtains cannot determine, in advance of the formulation of considered judgments about new injustices, the reasonable limits of the inevitable unjust outcomes of a constitutional regime (7.3.2.2). The set of political values which are shared by the family of liberal, public conceptions of justice are only of limited use in determining the reasonable limits of unjust outcomes. This is because these shared political values are interpreted in conflicting ways by different liberal, public conceptions, thereby legitimising a large range of reasonable disagreement between public conceptions themselves. Such reasonable disagreement over the interpretation of public values means that citizens’ considered reflections about justice will also conflict in new legislative and judicial settings. In such cases, citizens must be able to re-enter the standpoint of impartiality modelled by the original position, so as to reassess their shared political values, constitutional essentials, and legislative and judicial outcomes against the changing set of considered judgments about injustice which are aired for consideration in public reason.

On the one hand, I will suggest that we must assume that we can determine the content of the original position in terms of political values which are affirmed in an overlapping consensus. On the other hand, I will argue that we must also concede that the determination of the content of the original position cannot allow the reasonable limits of inevitable injustice to be determined in advance of the considered judgments of those involved. In this sense, the original position’s content is given, though not exhausted, by a certain set of shared political values. Once again, it must, in principle, be possible to re-enter the standpoint of fairness, modelled by the original position, so as to reassess publicly affirmed political values, constitutional essentials, and legislative and judicial outcomes, against those considered judgments about justice which are formulated as new situations of injustice arise.

I will claim that the status of the original position is similar to the one we saw Derrida ascribe to justice in Chapter 5. Justice’s content must be determined but justice is not exhausted by its determination. Similarly, the determination of the content of the

284 original position is, likewise, both possible and impossible. A definitive determination of its content would make no sense, given the fact of social complexity, the need to accept the burdens of judgment, and society’s tendency to change. Outcomes of the original position procedure are necessarily revisable.

7.3.2.1 The duty to comply in Theory: acceptable and unacceptable injustices

Here, I will examine what Rawls refers to in Theory as the “four-stage sequence”. By reference to the idea of the original position, this sequence accounts for the way in which principles of justice are to be determined and applied. As indicated in 7.3.1, Rawls concedes, in Theory, that laws enacted under a just constitution can nevertheless be unjust. This does not mean, however, that we should actively take it on ourselves to oppose their injustice. On the contrary, we are bound to comply with unjust laws “provided that they do not exceed certain limits of injustice”.87 As previously indicated, I do not think that the reference to the original position can determine, in advance of the consideration of newly formulated considered reflections on unjust legislation, the criteria by means of which we can determine whether the inevitable imperfections of a constitutional regime are within reasonable limits or not (7.3.2).

In a first stage, parties in the original position select the principles of justice as fairness, after which they move to a second stage, where they are delegates to the choice of a constitution. As I explained in 7.3.1, the veil of ignorance is partially lifted so that delegates know the general facts about their own particular society. However, “the idea of the original position is not affected”88 by this partial lifting of the veil, because delegates still have no information about their own social position, and are thereby bound to choose a constitution which should be acceptable to all. The constitution they

87 Rawls, Theory, 351/308 rev. We saw, in Chapter 1.1.2, that Theory determines the limits of justice by constructing an ideal theory, that is, a theory which assumes strict compliance on the part of the parties to the decision on principles (8-9/7-8 rev.; 246-247/216-217 rev.; 351-352/308-309 rev.). Ideal theory is able to work out what a perfectly just society would be like under ideal conditions, that is, under conditions of strict compliance. However, one must also deal with non-ideal theory, anticipating the outcomes of real- world conditions which are less than favourable under which partial, not strict, compliance, is to be expected. The political duty to comply with unjust laws is thus, in Theory, part of non-ideal theory (351- 352/308-309 rev.). For further discussion of the difference between ideal and non-ideal theory in Theory, see Patrick Hayden, John Rawls: Towards a Just World Order (Cardiff: University of Wales Press, 2002), 27. 88 Rawls, Theory, 198/174 rev.

285 choose must not only protect the basic liberties but also specify procedural arrangements which are likely to lead to a just and effective system of legislation. In the third stage, the legislative stage, proposed bills are assessed from the perspective of a representative legislator who knows nothing about himself, thereby maintaining the practical intent of the original position. Statutes must satisfy not only the principles of justice but also the limits laid down in the constitution. In the final stage, we assume the role of judges, interpreting the constitution and laws as members of a judiciary.

Now, at the level of the constitutional convention, only the first principle (the equal liberties principle) is to be included as a constitutional principle.89 The second principle (the fair equality of opportunity and the difference principle) is to be taken up at the legislative stage, aiming to maximise the long-term expectations of the least advantaged, under conditions of fair equality of opportunity. This is because the factors involved in their pursuit are often the subject of controversy: their application normally requires more information than we can expect to have. It is impractical for principles, whose nature and pursuit are subject to reasonable debate, to be included in a constitution which must be seen to be upheld by public institutions.90

The first point to note is that injustices are to be expected because only imperfect procedural, and not perfect procedural, justice can be achieved. Like a criminal trial, no fair procedure can ever guarantee a just outcome. The second point to note is that the injustice of an outcome is measured against the principles of justice to which all citizens should agree. As I argued in Chapter 3.1.1.4, Political Liberalism modifies this, requiring that agreement obtain only on a more limited range of shared political values and on constitutional essentials themselves. In Theory, however, the constitutional essentials are themselves selected by delegates who have already agreed to justice as fairness. The justice or injustice of an outcome of the imperfect procedures of a fair

89 Note that Rawls modifies this view in Political Liberalism, affirming that the first principle and a weaker version of the second part of the second principle (some sort of opportunity principle such that careers are open to talents) should be embodied in the constitution. He concedes that both the fair equality of opportunity principle (which requires more than the principle of careers open to talents (Theory, 266 and 73)) and the difference principle are too demanding and are unlikely to be the object of an overlapping consensus. As for the difference principle, as in Theory, Rawls once again leaves the determination of principles for social and economic inequalities to the legislative stage, subject to reasonable differences of opinion. See Political Liberalism, 227-230. 90 Rawls, Theory, 198-199/174-175 rev.

286 constitutional convention is judged by comparison with the principles of justice themselves. Unjust outcomes may well be procedurally just without necessarily conforming to the principles of justice.91

When constitutional procedures permit majority outcomes which are less than just, Rawls believes that citizens face “a conflict of duties”,92 that is, a conflict between two opposing political duties; the duties to comply with, and to resist, unjust laws. Thus Rawls asks: At what point does the duty to comply with laws enacted by a legislative majority (or with executive acts supported by such a majority) cease to be binding in view of the right to defend one’s liberties and the duty to opposed injustice?93

To know which duty has priority, we need criteria to determine how to balance them.94

His answer is as follows: we are to comply with unjust laws, unless their injustice exceeds certain limits.95 Compliance is a duty for two reasons. First, once we take up the viewpoint of the constitutional convention, we must choose among the very limited number of feasible procedures which have a chance of being accepted at all, and none of these feasible procedures will always be decided in our favour. Outcomes which appear unjust to us are to be expected even when we think that the constitutional procedures which permit them are fair. Second, consenting to one of these procedures is preferable to no agreement at all. Accepting the advantages of an effective constitution implies accepting the risks of suffering the defects of each other’s knowledge. There is, states Rawls, no other way to manage a democratic regime.96

However, compliance with unjust laws is no longer a duty when injustice exceeds certain limits. We saw, in the previous section, that these limits are exceeded in two

91 Ibid., 198/173 rev. In “Reply to Habermas”, Rawls refers, instead, to procedurally just outcomes as “procedurally legitimate” as opposed to “just”. Rawls, “Reply to Habermas”, 427-430; and Rawls, “The Idea of Public Reason Revisited”, 578. 92 Rawls, Theory, 363/319 rev. 93 Rawls expresses a similar point in an earlier section of Theory, writing that “there is a conflict of principles in these cases” (351/308 rev.). “Some principles counsel compliance while others direct us the other way” (351/308 rev.). 94 He thus attempts to determine how “the claims of political duty and obligation must be balanced by a conception of the appropriate priorities”. Ibid., 351/308 rev. 95 “Whether noncompliance is justified depends on the extent to which laws and institutions are unjust”. Ibid., 352/308 rev. 96 Ibid., 355/312 rev.

287 cases: first, when the basic liberties are not upheld, and second, when citizens do not share equitably in the inevitable injustices. Rawls adds, however, that when working out whether citizens share equitably in injustices, social and economic injustices (that is, violations of the “difference principle”, which requires that inequalities maximise the expectations of the worst off) can not be considered. This is because infractions of the difference principle are not easy to ascertain and are thus unlikely to be the object of agreement. Disagreements over social and economic injustice are to be expected given the difficulty of weighing up statistical and other information. There is usually a wide range of conflicting yet rational opinion as to whether this principle [the difference principle] is satisfied. The reason for this is that it applies primarily to economic and social institutions and policies. A choice among them depends upon theoretical and speculative belief as well as upon a wealth of statistical and other information, all of this seasoned with shrewd judgment and plain hunch.97

This suggests that when the basic liberties are upheld (the first requirement), the requirement to share equitably in inevitable injustices (the second requirement) only applies to particularly “blatant” 98 and obvious violations of the principle of fair opportunity because such infractions are easier to identify.

By defining the acceptable limits of injustice in this way, Rawls restricts the duty to resist unjust laws to obvious and clear cases of substantial injustice and, more particularly: to serious infringements of the first principle of justice, the principle of equal liberty, and to blatant violations of the second part of the second principle, the principle of fair equality of opportunity.99

In this way, he hopes to limit the duty to resist unjust laws to only those injustices which can be seen to be obviously and clearly wrong by both the minority and the majority alike. Thus when certain minorities are denied the right to vote or to hold office, or to own property and to move from place to place, or when certain religious groups are repressed and others denied various opportunities, these injustices may be obvious to all. They are publicly incorporated into the recognised practice, if not the letter, of social arrangements.100

97 Ibid., 372/327 rev. 98 Ibid., 372/326 rev. 99 Ibid., 372/326 rev. 100 Ibid., 372/327 rev., emphasis added.

288 Unlike the evaluation of violations of the difference principle, “the establishment of these wrongs does not presuppose an informed examination of institutional effects”.101 Rawls thus concludes that civil disobedience must be limited, in principle, to clear and obvious infractions which all persons with a sense of justice are capable of recognising.

The implications are important. Rawls obviously thinks that the duty to resist injustice is limited to securing our civil and political liberties, but not to correcting injustices in income, housing, education, and social mobility. The latter are to be tolerated because, due to the difficulties of weighing the evidence, it is not obvious to all that they are even injustices. Moreover, Rawls thinks that as long as our civil and political liberties are guaranteed, then normal political processes – like majority voting – can be relied upon to correct the aforementioned social and economic injustices.

Rawls is certainly too optimistic here. I agree with Vinit Haksar that a minority often has the liberty to vote, freedom of speech, freedom of association, and formal equality of opportunity to access good schools, sporting facilities, jobs, and government posts etc. without, for all that, being able to defend itself from being outvoted for long periods on issues such as income, housing and education.102 Guaranteeing civil and political liberties is not enough to prevent the existence of permanent minorities who have suffered from socio-economic injustice for many years. Rawls believes, on the one hand, that economic and social injustices must be tolerated due to the difficulties of weighing the evidence. However, on the other hand, he also agrees that, in view of the complexities, “it is difficult to check the influence of self-interest and prejudice”.103 As Haksar argues, in the case of substantial but less obvious cases of injustices, even high- minded people can perpetrate injustices for long periods of time, believing that they are doing what is right and just.104

It is not clear, then, that the duty to resist should not also include those cases in which injustice is not obvious but is nonetheless weighty. Indeed, Rawls should agree, given

101 Ibid., 372/327 rev. 102 See Vinit Haksar’s article, “Rawls and Gandhi on Civil Disobedience”, in John Rawls: Critical Assessments of Leading Political Philosophers (Volume 2), ed. Chandran Kukathas (London and New York: Routledge, 2003), 371-406. 103 Rawls, Theory, 372/327 rev. 104 Haksar, “Rawls and Gandhi on Civil Disobedience”, 388.

289 his comments in Theory and elsewhere, that the injustices “should not weigh too heavily in any particular case”.105 We saw earlier, that he even affirms, explicitly, that “the duty to comply is problematic for permanent minorities who have suffered from injustice for many years”.106 However, he does not recognise that, in a near-just society, the injustice which permanent minorities undergo does not always fall into the category of infringements to the principle of equal liberty or to particularly blatant violations of the principle of fair opportunity. Their injustice can endure even when all have the liberty to vote and all have fair access, in law, to attend good schools, live in safe neighbourhoods, access sporting facilities, apply for jobs and government posts on the basis of merit, and so on. The social and economic injustice which permanent minorities face tends to go unscrutinised by the majority and by the courts precisely because the basic liberties and the principle of fair opportunity are maintained.

Against Rawls then, it appears difficult to determine, in advance, the criteria by means of which the duty to comply can be balanced against the duty to resist.107 Such criteria should not always be limited, as Rawls suggests, to those breaches which are more obvious and capable of being accepted by the majority, for this excludes other breaches, no less serious which, given the difficulties of weighing up statistical and other information, are less likely to be the object of reasonable agreement. In Theory, justice as fairness cannot provide criteria to determine when the injustice of legitimate laws is acceptable or unacceptable because it is unlikely that persons can agree, even when they employ their sense of justice.

105 Rawls, Theory, 355/312 rev. See also Rawls, “The Justification of Civil Disobedience”, 180; and Rawls, “Reply to Habermas”, 428. 106 Rawls, Theory, 355/312 rev. 107 Joel Feinberg agrees that it is difficult to determine, in advance, the criteria with which to resolve this “conflict of duties”. Feinberg thereby suggests that Rawls’ account of civil disobedience collapses into intuitionism because irreducible value pluralism cannot be evaluated on rational grounds. Joel Feinberg, “Rawls and Intuitionism”, in Reading Rawls: Critical Studies on Rawls’ A Theory of Justice, ed. Norman Daniels (Stanford: Stanford University Press, 1989), 108-124, especially 116-124. I have suggested that I agree, to some extent, with Feinberg. For a rebuttal of Feinberg’s argument, see Andrew Sabl’s “Looking Forward to Justice: Rawlsian Civil Disobedience and its Non-Rawlsian Lessons”, in John Rawls: Critical Assessments of Leading Political Philosophers (Volume 2), ed. Chandran Kukathas (London and New York: Routledge, 2003), 407-430 at 412-413. For another discussion of some of the problems with Rawls’ account of the political duty to comply, see Daniel Farrell’s “Dealing with Injustice in a Reasonably Just Society: Some Observations on Rawls’ Theory of Political Duty”, in John Rawls’ Theory of Social Justice: An Introduction, ed. H. Gene Blocker and Elizabeth Smith (Athens: Ohio University Press, 1980), 185-210.

290 This should not however suggest that the idea of impartiality between autonomous persons, interpreted by the original position, is not worth pursuing. Rather, as I suggested earlier, a definitive determination of its content indeed makes no sense, given the fact of social complexity, the need to accept reasonable disagreement, and society’s tendency to change. This is why I am suggesting that outcomes of the original position procedure are necessarily revisable. The original position procedure, applied to the constitutional convention and to legislative and judicial outcomes, cannot be exhausted by those values which are likely to be the object of reasonable agreement, for this excludes those considered reflections about unjust outcomes which are not yet recognised by the majority. As Rawls will affirm in his later work, this intimates that it always necessary to re-enter the original position, and call on others to do likewise, so as to assess the values which are embodied in a constitution against changing considered judgments about justice. Any determination of the content of the idea of impartiality must remain revisable, in principle.

7.3.2.2 Compliance in Political Liberalism: the undecidability of the political values

I will now examine whether Rawls’ mature account of shared political values, on which overlapping consensus obtains, can provide the desired criteria. I will argue that, under conditions of value-pluralism, shared political values, on which an overlapping consensus obtains, cannot determine, in advance of the consideration of reflective judgments about new injustices, the reasonable limits of the inevitable injustices of a constitutional regime. This is because these shared political values are taken up by different liberal, political conceptions, in often conflicting ways and this leads to disagreement on where to draw the line between acceptable and unacceptable injustices. In order to determine the reasonable limits of injustice, it must be possible to re-enter the original position at any time, to reassess public political values and principles against considered judgments about new injustices. Once again, this means that outcomes of the original position procedure, which models the standpoint of impartiality, remain revisable in principle. I will attempt to explain what I mean.

291 First of all, we must recall that, in Political Liberalism, Rawls recognises that the gross coercion required to enforce the public conception of justice as fairness would effectively invalidate it as an acceptable public point of view (3.1.1.2). Revising his account, Rawls argues that the public conception of justice, which all persons affirm, includes only those shared public values which a variety of different, often incompatible, liberal political conceptions are able to endorse. In any actual society, a number of differing liberal political conceptions compete with one another in society’s political debates. Thus, political liberalism must explain how a well-ordered society is possible given not only reasonable pluralism in comprehensive doctrines but also reasonable pluralism in liberal political conceptions of justice.108 After defining the conditions which a liberal political conception must satisfy, Rawls claims that an overlapping consensus between liberal political conceptions of justice can obtain on certain, more basic, public values which each conception shares with the others.

As indicated in Chapter 3.1.1.2, a liberal political conception must satisfy the following conditions: 109 first, it must specify certain liberties (familiar to democratic regimes); second, it must assign a special priority to these freedoms; and third, it must include some form of equal opportunity principle, allowing citizens to access all-purpose means to use their liberties. Now, different liberal political conceptions will satisfy these conditions in different ways. Rawls concedes that other liberal political conceptions might prefer to substitute, for justice as fairness’ difference principle and fair equality of opportunity principle, a principle which guarantees for everyone a sufficient level of adequate all-purpose means.110 Given the burdens of judgment (see Chapter 3.1.1.3), we must recognise that different liberal political conceptions, which are incompatible with the one that we happen to affirm, are not, for all that, unreasonable, if they satisfy the above three conditions.111 This basically affirms that an overlapping consensus between conflicting liberal political conceptions (and not just conflicting comprehensive moral

108 Rawls, Political Liberalism, xlviii. Once again, I insist that the introduction to the second edition of Political Liberalism (“New Introduction” or “Introduction to the Paperback Edition”), “Reply to Habermas”, and “The Idea of Public Reason Revisited” are the best statements of Rawls’ mature views. Indeed, as I indicate on occasions in the body of this chapter, I believe that the final statement, Justice as Fairness: A Restatement, does not express some of the ideas which Rawls airs in the aforementioned articles. 109 Rawls, Political Liberalism, xlviii-xlix and 6. 110 Ibid., xlix. 111 Ibid., xlix.

292 doctrines) can only obtain on those more general public values (namely, the three conditions cited above), for these are the values which each liberal political doctrine interprets in often conflicting ways.

This conception of a well-ordered society, in which reasonable but conflicting liberal political conceptions of justice also achieve overlapping consensus on more general, shared political values, is aired in the second edition of Political Liberalism and implied by “The Idea of Public Reason Revisited”. It contradicts, in my view, Rawls’ final statement of the bases of a well-ordered society in Justice as Fairness: A Restatement, which affirms that everyone accepts, and knows that everyone else accepts, the very same political conception of justice.112 Although this conception of the well-ordered society does not, as in Theory, require that everyone accept the same conception for the same reasons, it nevertheless surrenders the insight of the second edition of Political Liberalism. This insight, as I indicated in the previous paragraph, is that overlapping consensus obtains only on those more basic political values which a family of reasonable liberal political conceptions can together endorse. All political conceptions in this family must include and prioritise the basic liberties (the first two conditions listed in the preceding paragraph), and affirm some sort of equality of opportunity principle, ensuring that citizens have adequate means to pursue these liberties (the third condition listed in the preceding paragraph).113 Rawls writes: While I view [justice as fairness] as the most reasonable (even though many reasonable people seem to disagree with me), I shouldn’t deny that other conceptions also satisfy the definition of a liberal conception [presented on page xlviii]. Indeed, I would simply be unreasonable if I denied that there were other reasonable conceptions satisfying that definition, for example, one that substitutes for the difference principle, a principle to improve social well-being subject to a constraint guaranteeing for everyone a sufficient level of adequate all-purpose means.114

In this sense, while affirming one’s own particular political liberal conception, one must also accept that other political conceptions, which include the three aforementioned political values, are reasonable, even if their interpretation of these political values conflicts with one’s own. One must concede that disagreement over the interpretation of these political values is reasonable. The basic public political values on which

112 Rawls, Justice as Fairness, 8. 113 Rawls, Political Liberalism, xlviii-xlix, 6. 114 Ibid., xlix.

293 overlapping consensus obtains thereby invite, and permit, a plurality of different, indeed conflicting, interpretations, and, under conditions of reasonable pluralism, this disagreement is to be expected and accepted.

Now, the question arises as to whether these more basic, political values, which all reasonable political liberal conceptions endorse, are indeed sufficient to resolve the problem of determining when the inevitable social and economic injustices of a constitutional regime are no longer equitably shared. In all cases, it is clear that the basic liberties are to be upheld. This is non-negotiable. However, as concerns social and economic injustice, it seems unlikely that referring to the three, more basic, political values affirmed in overlapping consensus can allow us to convince each other that social and economic injustices are no longer equitably shared. These political values are very general and thereby invite, and permit, conflicting interpretations. 115 This leads me to believe that they cannot provide the desired criteria. Consequently, although citizens can indeed succeed in convincing others, in public reason, that their own political conception is, at least, based on values which the others can reasonably be expected to endorse, they cannot reasonably expect these others to endorse their own specific interpretation of these basic, public values. Disagreements over the specific interpretation of these shared political values and, consequently, over the interpretation of the line between unjust and just social and economic injustices, must be accepted as reasonable.

We saw, in Chapter 3.1.1.4, that, faced with the problem of reasonable disagreement over the interpretation of shared political values, Rawls believes it is urgent for citizens to reach agreement, at the very least, on constitutional essentials, by which he posits, first, fundamental principles, which specify the general structure of government and political process (including some form of majority voting), and second, equal basic rights and liberties of citizenship which legislative majorities are to respect.116 These principles and procedures basically institutionalise the three, general, political values which all liberal, political conceptions must endorse. We saw that the liberal principle of legitimacy, expressed in accordance with the criterion of reciprocity, demands that

115 Ibid., xlviii-xlix, 6. 116 Ibid., 227.

294 political power be exercised in accordance with those constitutional essentials which all free and equal citizens may reasonably be expected to endorse, in their capacity as Reasonable and Rational.117 Given that each conflicting liberal, political conception must include the three conditions which I mentioned earlier (namely, the affirmation and prioritisation of the basic liberties and the inclusion of some sort of equality of opportunity principle), only these basic political values can be specified in a constitution. Consequently, Rawls concedes that neither the fair equality of opportunity principle, which justice as fairness defends, nor the difference principle, can be included as a constitutional essential because their interpretation of equality of opportunity is more demanding than other alternative interpretations and cannot be institutionalised in a constitution without unreasonable coercion.118

As in Theory, Rawls thinks that, although both are related, there is an important difference between legitimacy and justice. From the perspective of citizens who affirm, for different reasons, one of a family of reasonable, liberal, political conceptions, an outcome can be said to be legitimate but not just. An outcome is legitimate when enacted in accordance with a constitution whose procedures and basic equal liberties embody the political values which liberal, political conceptions endorse. However, as Rawls states, “legitimacy allows an undetermined range of injustice that justice might not permit”.119 That is, a legitimate procedure may permit outcomes which are unjust from the perspective of any one reasonable, liberal, political conception of justice. For example, someone who affirms Rawls’ public conception of justice as fairness and who believes that an outcome accords with constitutional procedure, upholding equal basic rights and liberties, might not, for all that, think that the social and economic inequalities which the outcome permits can be said to satisfy either the more demanding, fair equality of opportunity principle or the difference principle. Compliance with legitimate outcomes, which one believes to be unjust, however, is a political duty. This political duty is limited to injustices which “cannot be too gravely

117 Ibid., 137, 216, 217. 118 Ibid., xlviii-xlix, 6. 119 Rawls, “Reply to Habermas”, 428.

295 unjust”. 120 At some point, “the injustice of the outcomes of a legitimate democratic procedure corrupts its legitimacy”. 121

But at what point does the injustice of outcomes corrupt the legitimacy of democratic procedure enacted in accordance with a constitution which embodies the three, publicly affirmed values? Rawls can no longer state, as in Theory, that injustice is objectively measured against the two principles of justice which he defends, because he now concedes that it is not reasonable to require that all citizens agree to these two principles. This means that the extent to which an outcome is judged unjust will differ as a function of the particular kind of public liberal conception which a citizen affirms. It appears then that when a minority is unconvinced that a majority outcome is just, they have three main options available to them. The first is to argue that the outcome does not satisfy the constitutional essentials which embody the shared political values that each reasonable citizen affirms. In the case that either the basic liberties or the equality of opportunity principle have not been upheld, the injustice lies in the deviation of the outcome with the constitutional essentials to which all agree, and this injustice can be referred to the courts. As Rawls himself agrees, when the basic liberties are not upheld, such injustice is easy to recognise. The second option is to convince the legislature that the shared political values which the constitution embodies are not satisfied by an unjust socio-economic outcome and that new legislation is needed to amend the injustice. Convincing the legislature is harder, in this case, because such injustice “is far more difficult to ascertain”. These matters are nearly always open to wide differences of reasonable opinion; they rest on complicated inferences and intuitive judgments that require us to assess complex social and economic information about topics poorly understood.122

The third option is to convince the majority that the constitution no longer embodies the shared political values and can no longer be said to satisfy the liberal principle of legitimacy. The argument turns, in each case, on the political values which citizens share.

120 Ibid., 428. As indicated earlier, Theory includes the same proviso, requiring that “in the long run the burden of injustice should be more or less evenly distributed over different groups in society”. Rawls, Theory, 355/312 rev. See 7.3.2.1. 121 Rawls, “Reply to Habermas”, 428. 122 Rawls, Political Liberalism, 229.

296 In each situation, Rawls thinks that it is necessary to re-enter the impartial standpoint modelled by the original position, calling on others to do likewise, so as to test our publicly instituted constitutional principles, and legislative and judicial outcomes, against the changing set of considered judgments about the injustices we face, judgments which are raised, for the consideration of all, in public reason. Although, from the standpoint of the original position, not everyone may share the same considered judgments about socio-economic differences, we must nevertheless include, in our considerations, the considered judgments of others when these others sincerely believe that certain outcomes are too unjust to accept. Such judgments make up the new set of considered judgments about justice, which must be included in our impartial considerations. The framework thereby “extends the idea of the original position, adapting it to different settings as the application of principles requires”.123

Under conditions of value-pluralism then, we cannot say, in advance of the consideration of others’ reflective judgments about justice, which inevitable injustices of a constitutional regime can be objectively determined as “too gravely unjust”. Such determination indeed depends on the considered reflections of those who, like us, are subject to the constitution. When citizens enter the original position to assess, from the perspective of impartiality, both their public values, embodied in the constitution, and particular legislative and judicial outcomes, new values may very well be needed to account for the new set of considered judgments which citizens raise for consideration in public reason. It follows that the principles, ideals and standards of public reason will change over time, so as to account for new political problems and associated, considered reflections about justice.

The original position’s content cannot be determined, once and for all. Its content cannot but be informed by considered judgments about justice, which change over time in the light of new problems. As a constructive procedure, it must leave open the essential possibility of revising and reformulating public values so as to account for the set of considered judgments about justice before which it is accountable. This is why

123 Rawls, “Reply to Habermas”, 398.

297 Rawls insists on a “present-time-of-entry interpretation of the original position”.124 It is possible, in principle, to re-enter the original position’s standpoint of impartiality at any time, to re-assess public principles, constitutional essentials and legislative and judicial outcomes. Indeed, this inherent possibility allows the standpoint of fairness to retain its critical function. On occasions, Rawls himself affirms this idea explicitly: It is crucial that public reason is not specified by any one political conception of justice, certainly not by justice as fairness alone. Rather, its content – the principles, ideals, and standards that may be appealed to – are those of a family of reasonable political conceptions of justice and this family changes over time… Social changes over generations also give rise to new groups with different political problems. Views raising new questions related to ethnicity, gender and race are obvious examples, and the political conceptions that result from these views will debate the current conceptions. The content of public reason is not fixed, any more than it is defined by any one reasonable political conception.125

Rawls thus recognises that the principles, ideals and standards of public reason are liable to change. From the position of impartiality, such principles and standards are accountable before the considered reflections of a democratic society on its own institutions and their effects. Given that these considered reflections take, as their object, the acceptable limits of the inevitable imperfections of a constitutional regime, it is likely that such reflections will change as a function of the particular injustices and political problems which a civil society faces.

Now, I expect that someone will remind me that Rawls does lay claim to the objectivity of the content of political constructivism. As I argued, in Chapter 3, Rawls continues to defend the objectivity of the content of his theory because he believes that political constructivism can satisfy the requirement that its content be given in terms which are acceptable to all. It does so, we saw, by specifying basic political values and constitutional essentials to which persons who affirm conflicting comprehensive doctrines and, indeed, very different liberal public conceptions can agree. It is the claim to the complete determinability of constructivism which I am here questioning. Reasonable public values and constitutional essentials both can and cannot determine the limits of acceptable imperfections. Outcomes of the original position decision procedure are to remain open to contestation at any time and must be checked and re-

124 Rawls, Justice as Fairness: A Restatement, 106. See, in particular, 86-87. See also “Reply to Habermas”, 399. 125 Rawls, Political Liberalism, liii.

298 checked against the reflective, considered convictions of citizens in civil society, convictions which are liable to change.126

This is one area where Derrida’s own interventionist analyses of the possibility and impossibility of justice can productively be brought to bear on Rawls’ theory. On the one hand, justice as fairness “assumes that a just constitution is realisable”.127 We assume that, by entering into the original position at a particular moment in time, we can determine the principles which parties, as our rational representatives, should adopt. On the other hand, Rawls continues that, “from the point of view of civil society, it turns out that a just constitution cannot be fully realised”, and that, “it is a project to be carried out”.128 Citizens in civil society can re-enter the original position “at any time”,129 thereby re-checking principles against our reflective considered judgments about new imperfections.

Indeed, like Habermas, Rawls himself goes some way to recognising that the complete determinability of the impartial standpoint, modelled by the original position procedure, would undermine its critical function. Like Habermas, he recognises that the content of the original position procedure remains open to contestation, in principle.130 The complete determinability of the original position procedures would absolve the need to revisit its procedure. Rawls assumes the possibility of completely determining the content of the original position while conceding the impossibility of doing so. In this sense, Habermas’ acknowledgement of the self-defeating character of a definitive rational consensus can be said to apply to Rawls’ account of the function of the original position. A definitive determination of the original position procedure “would be the end of human history”. 131

126 Rawls, “Reply to Habermas”, 399. 127 Ibid., 398, emphasis added. 128 Ibid., 398, emphasis added. 129 “I use the idea of the original position as a natural and vivid way to convey the kind of reasoning the parties may engage in…We can enter it at any time. How? Simply by reasoning in accordance with the modelled constraints, citing only reasons those constraints allow”. Rawls, Justice as Fairness: A Restatement, 86. 130 Rawls, “Reply to Habermas”, 399. 131 Habermas, On the Pragmatics of Communication, 365.

299 Indeed, Rawls now affirms that no human institution, the constitution included, can ever be perfectly just. It is of great importance that the constitution specifying the procedure be sufficiently just, even though not perfectly just, as no human institution can be that.132

One page later, he continues the theme: In view of the imperfection of all human political procedures, there can be no procedure [which is purely procedural] with respect to political justice and no procedure could determine its substantive content.133

However, the concession that an objective determination of the content of justice for modern liberal democracies is not possible, in principle, does not prevent Rawls from defending its possibility. By affirming that outcomes of the original position procedure are revisable, in principle, Rawls effectively affirms the essential perfectibility of the impartial standpoint.

7.4 Celebrating perfectibility: the condition of justice’s critical function

In this final chapter, pursing the second stage of the thesis’ argument, I have defended the view that the projects of social justice which I have been referring to as the “art of the possible”, on one hand, and the “art of the impossible”, on the other, can productively inform each other.

In so arguing, I have taken a critical stand toward both traditions. On the one hand, I demonstrated that deconstruction, by defending both projects, indeed subscribes to the essential premise of constructivism and reconstructivism, namely, reasonable faith in the possibility of justice. However, I also argued that Derrida’s account of the constitutive failure of democracy does not apply to the accounts of justice which Rawls and Habermas defend, because both limit the operation of the majority principle by the absolute value of the liberty of particular individuals. In this sense, I argued, the constructive and reconstructive projects can be understood to negotiate the conflicting demands which Derrida believes justice includes, namely, the responsibility to respond

132 Rawls, “Reply to Habermas”, 428. 133 Ibid., 429.

300 to the individual in his or her particularity (albeit as a moral person) and the need for impartiality in application. On the other hand, I argued that Derrida’s own interventionist analyses of the possibility and impossibility of justice can productively be brought to bear on the theories of justice which Rawls and Habermas defend. I attempted to demonstrate that both Rawls and Habermas in fact come to concede the impossibility of achieving an objective determination of justice’s content.

Here, I wish to conclude that the impossibility of determining justice’s content is not to be regretted but celebrated. In what follows, I will attempt to show why both Rawls and Habermas should celebrate this impossibility as the very condition for the possibility of pursuing justice in the present. The very perfectibility of justice is the condition for the critical function which it plays in each of their theories.

We saw, in earlier chapters, that both Rawls and Habermas ascribe critical force to the idea of an acceptable public point of view. Both think that society’s public institutions can be either criticised or affirmed, depending on the extent to which they are regulated by the substantive public conception (Rawls) or appropriate public procedures (Habermas). What happens to this claim when, as both philosophers now agree, justice is not exhausted by its determination in either a substantive public conception (Rawls) or in appropriate public procedures (Habermas)? Does the concept of justice surrender its critical function?

On the contrary, the critical function depends on the practical possibility of revisiting justice’s imperfect forms. Indeed, I have suggested that both philosophers implicitly affirm that the impossibility of achieving a fully objective determination of justice is actually necessary for the very pursuit of justice itself. Following Thomassen, I demonstrated that Habermas comes to acknowledge that, if actually achieved, rational consensus would render further communication unnecessary because its content would be non-revisable and absolute. This situation, however, would contradict the merely hypothetical status which reconstructive justification is entitled to claim for its results. We saw Habermas claim that the results of reconstructive analysis are necessarily

301 revisable and that “we have to put our reconstructions up for discussion…”,134 thereby checking them against future cases of interaction. I have suggested that the non- revisability of a fully rational consensus would effectively contradict the necessarily revisable status which immanent analysis can claim. Habermas thus attempts to account for the impossibility of rational consensus in a processual account of discursive testing, whereby the results of discourse are to remain open to contestation, in principle. The concept of a fully rational consensus is self-defeating because it “would be the end of human history”.135 I thus suggested that Habermas comes to affirm that justice, as an ideal to work towards, retains a critical function only because it is not exhausted in an actual consensus. Otherwise, one would need nothing more than the actual, that is, a state of full, rational consensus. As Chantal Mouffe states, “Perfect democracy would indeed destroy itself. This is why it should be conceived as a good that exists as good only as long as it cannot be reached”.136 The impossibility of justice in the present is the condition for the possibility of its critical function for the present and for future presents.

I then argued that something similar can be said for Rawls’ mature account of justice. Rawls now believes that the content of justice cannot be fully determined and that it remains possible, in principle, to revisit the original position at any time. On the one hand, we saw him claim that no human institution, the constitution included, can ever be perfectly just. On the other hand, we saw that he nevertheless defends the possibility of justice. He states: Political philosophy assumes the role Kant gave to philosophy generally; the defence of reasonable faith. As I said then, in our case, this becomes the defence of reasonable faith in the possibility of a just constitutional regime.137

I have argued that reasonable faith with respect to possibility of a just constitutional regime equates to the defence of the essential perfectibility of the impartial standpoint. Although a fully objective determination of the content of justice is not possible, in principle, this does not prevent Rawls from defending its possibility.

134 Habermas, Moral Consciousness and Communicative Action, 97. 135 Habermas, On the Pragmatics of Communication, 141. 136 Mouffe, The Democratic Paradox, 137. 137 Rawls, Political Liberalism, 172, emphasis added.

302 Why does Rawls think we should even seek after justice if we cannot achieve it, in principle? As I indicated in the Introduction, Rawls suggests that to concede that justice is not possible leaves us wondering whether it is even worthwhile to live on the earth. If a reasonably just society which subordinates power to its aims is not possible and people are largely amoral, if not incurably cynical and self-centred, one might ask with Kant whether it is worthwhile for human beings to live on the earth?138

We must start with the assumption that a reasonably just political society is possible because it cannot even be approached without this assumption. Only by assuming the possibility of a just regime can we actually work toward achieving it. Only when we believe that justice can be approached and achieved can we present to each other ideas which appear, on reflection, to inform the content of the idea of a public standpoint which is acceptable to those who are to live according to its principles. Under conditions of value pluralism: one step in showing how it is possible is to exhibit the possibility of an overlapping consensus in a society with a democratic tradition characterised by the fact of reasonable pluralism.139

We discover these ideas within the democratic tradition which we all affirm, and we believe that these ideas are practicable and reasonable, more so than their alternatives.

However, the affirmation of the possibility of justice should not blind us to the fact that justice is not exhausted by its determinations. Indeed, it is precisely because justice is not exhausted by the various attempts to determine it that it retains its critical function as an ideal to be pursued. I have argued that both Rawls and Habermas come to affirm that the very perfectibility of justice is the condition for its functioning: “The ideal of a just constitution is always something to be worked toward… A just regime is a project as Habermas says, and justice as fairness agrees”.140 Were justice to be exhausted by a non-contestable rational consensus or a non-revisable original position outcome, the concept would lose its critical function. The idea of justice functions as a critical tool for the present precisely because its determined forms fail to exhaust the ideal.

138 Ibid., lxii. 139 Ibid., 172. 140 Rawls, “Reply to Habermas”, 401-402, emphasis added.

303 Both Rawls and Habermas, I have suggested, go some way to affirming this insight. I would like to finish by suggesting that an explicit affirmation of the inherent perfectibility of justice might encourage a more critical regard towards the actual liberal, democratic tradition, as Rawls presents it. I will attempt to explain why the affirmation of perfectibility encourages a more critical regard, by critiquing two of the four roles which Rawls ascribes to political philosophy in the final statement of his theory in Justice as Fairness: A Restatement.141

Rawls ascribes to political philosophy a role stressed by Hegel, namely, the role of reconciling citizens to their social world.142 Political philosophy has the ability to calm frustration and rage against society by showing how social institutions can be understood as rational and reasonable by those citizens who must live under them. Political philosophy can also play a further role, related to the previous one, namely, a realistically utopian role of probing the limits of practicable political possibility.143 The fact of reasonable pluralism limits what is practicably possible under the conditions of our social world and, within such limits, political philosophy can assist by determining a reasonable public point of view which is actually practicable.

Both roles emphasise the possibility of explaining how the actual social world might be seen to be rational and reasonable from the point of view of those citizens who must live under its principles. By emphasising this possibility, Rawls approaches these limits from the viewpoint of practicable political possibility. Society, he suggests, should try to realise justice in the form of ideals and principles which it can actually achieve, even if the ideal itself is, in principle, unachievable.

We saw that this emphasis leads Rawls to insist that one has a duty to comply with a certain range of injustices. Since no human institution can ever be perfectly just, we are required to uphold outcomes of legitimate procedures which we nevertheless think are unjust. These injustices, we saw, can even include serious and long-lasting social and economic injustices in income, housing, education and social mobility. Rather than defending the duty to resist such injustices, Rawls believes that minorities should place

141 Rawls, Justice as Fairness: A Restatement, 3-5. 142 Ibid., 3-4. 143 Ibid., 4-5.

304 their hope for improvement in the near-justice of constitutional procedure, and in the capacity of citizens to revisit the original position procedure, adjusting public principles and procedures to take into account new considered judgments. We also noticed that Rawls limits acts of civil disobedience to those infractions which should be obvious to a majority, that is, infractions of civil and political liberties and particularly blatant violations of the equality of opportunity principle. When the basic liberties are satisfied by democratic procedure, the aforementioned socio-economic injustices in income, housing, education and social mobility are to be tolerated due to the serious difficulty of weighing up complex evidence. Accepting the burdens of judgment leads to accepting reasonable disagreement about the extent to which such injustice is acceptable or not. As such, resistance is not a practicable possibility: not only is it unlikely to succeed, since the injustices which it seeks to undermine are perceived as acceptable by the reasonable majority, but it also risks disrupting the rule of law. Living with such injustices, Rawls suggests, is preferable to giving up the very ideal of justice itself.

However, when discussing the realistically utopian role of political philosophy, Rawls himself recognises that there is no reason why the limits of the possible are to be given by the actual, “for we can to a greater or lesser extent change political and social institutions, and much else”.144 I have argued, along Derridean lines, that we cannot determine, in advance, whether the civil disobedience, which Rawls would define as unreasonable, would not reap unforeseen rewards, contributing to a culture which is prepared to make the effort to take seriously not only infractions in civil and political liberties but also other injustices, no less serious, which are unfortunately more difficult to recognise. As Derrida writes, such norms are not absolute and ahistorical, but merely more stable than others. They depend upon socio-institutional conditions, hence upon non-natural relations of power that by essence are mobile and founded upon complex, conventional structures that in principle may be analysed, deconstructed and transformed.145

Although Derrida is referring, here, to “the norms of minimal intelligibility”, that is, norms by means of which we are able to share an understanding of words, gestures and expressions, his point can be said to apply to norms of justice. These norms are dependent on the considered reflections of a particular culture which are to a greater or

144 Ibid., 5. 145 Derrida, “Afterword: Toward an Ethic of Discussion”, 147.

305 lesser degree institutionalised in social practice. As such, norms of justice remain, in principle, transformable.

The inability to determine in advance the content of justice is not, I have suggested, to be regretted but celebrated. The critical function which Rawls and Habermas ascribe to justice cannot be pursued without heightened sensitivity toward the injustices which current determinations of justice leaves unchallenged. The perfectibility of justice, that is, the fact that justice cannot be exhausted, in principle, by its determined forms, leads to its always being possible to call on the ideal of justice so as to critique its own forms. It is this idea which we can productively take from deconstruction.

306 Concluding Remarks

This thesis set itself the task of examining the relation between constructive and reconstructive justice, on the one hand, and deconstructive justice, on the other. Formulating the argument in two stages, I first identified the central difference between the approaches. Given the almost unbridgeable differences between the goals, methods and styles of the two traditions, this task alone provided its own difficulties. However, I noted that Kant’s practical philosophy promised to provide the common vocabulary, facilitating my task of identifying the central difference between the four theories. By reconstructing each philosopher’s account of social justice in their professed relations to Kant’s moral and political philosophy, I was able to demonstrate, in Chapters 1 to 3, that both Rawls and Habermas emphasise the possibility of objectively determining the substantive (Rawls) or procedural (Habermas) content of Kant’s idea of an acceptable public point of view. Conversely, I argued in Chapter 4, that, by virtue of a rather non- Kantian interpretation of the practical intent of Kant’s moral principle, whereby ethics equates to non-formal obligation for the fate of another particular person, Levinas chose to emphasise the impossibility of determining the content of a justice which would satisfy ethics. Finally, I suggested in Chapter 5 that, distinguishing himself from all three, Derrida’s own interventions into Kant’s texts display a commitment to the undecidable and perfectible status of justice’s determination. I thus argued that, where Rawls and Habermas subscribe to the “art of the possible”, and where Levinas attests to the “art of the impossible”, Derrida can be said to commit to both projects, emphasising the “undecidable” or “perfectible” status of justice.

I thereby laid the groundwork for the second stage of the thesis, which argued that the “art of the possible” and the “art of the impossible” are complementary projects. Although I drew attention to the reasons why neither project can be said to complete or perfect the other, I also defended the view that each tradition nevertheless requires the

307 insights of the other. On the one hand, the Kantian apology for reasonable faith in the possibility of justice provides the needed assumption for the task of creating a society which we believe can be endorsed by every one of its members. On the other hand, acknowledging the ways in which actual determinations of justice inevitably fail is also central to justice’s critical function. With Drucilla Cornell, I argued that the gap between the actual and the possible must be affirmed as the very condition of justice itself. Those established norms and principles which we believe to be reasonably just most also be affirmed as imperfect and perfectible. Without the essential possibility of revising and transforming the actual in view of as yet unimagined possibilities, justice surrenders its critical function for the present.

In the Introduction to the thesis, I stated that I had three reasons for wishing to pursue the problem of the relation between each project. Concerned with the limits of each tradition, considered in isolation of the other, I cited, as my first reason, my growing dissatisfaction with the emphasis on the “impossibility” of reconciling difference and impartiality. Some sort of political apologetic, along Kantian lines, is needed if we are to be able to offer, to each other, a social ideal which appears to be worth pursuing. Rawls is correct to point out that if we do not defend the view that a reasonably just society is possible, “one might ask with Kant whether it is worthwhile for human beings to live on the earth?” 1 In pursing this line, my thesis took a critical standpoint toward the “art of the impossible”, arguing that it must be supplemented by reasonable faith in the possibility of justice and a commitment to all that such faith entails. Deconstructive intervention in the “here and now” lacks orientation when it does not also commit to an apologetic of reasonable faith with respect to the possibility of justice, thereby taking seriously the value of those norms which are together endorsed by citizens who are committed to impartiality in their institutions. In Chapter 6, I argued that this lack of orientation is particularly evident in Levinas’ work, which compromises the critical potential of ethical responsibility by overemphasising justice’s failure. Defending the view that Levinas needs to supplement his ethics with the explicit commitment to justice’s possibility, I argued that Levinas needs to commit, with Rawls and Habermas, to an ideal of the individual as a moral person, and not merely as a distinct Other. Nor did I withhold my criticism of Derrida’s own attempt to pursue the constructive

1 Rawls, Political Liberalism, lxii.

308 moment, arguing, in Chapter 7, that deconstruction must intervene in those texts and contexts which are more directly pertinent to our distinctly political tradition. I suggested that although Derrida opens up this opportunity, he cannot be said to pursue it effectively, lacking the required understanding of the conceptual nuances of contemporary, liberal democratic theory. If deconstruction is to pursue its own practical intent, it must engage more closely, I argued, with the pragmatic strategies which the constructivist and reconstructivist defends.

Presenting my second reason for examining the relation between the two traditions, I cited the concern that, without celebrating the “impossibility” of achieving justice, the Kantian defence of justice’s possibility also surrenders its critical intent. Rawls’ utopian desire to “prob[e] the limits of practicable political possibility” 2 compromises its critical potential because Rawls does not himself pursue the “deep question” of the extent to which the “possible” should be given by the “actual”.3 I expressed my dissatisfaction with what I saw to be a refusal to acknowledge a further condition of the critical function of justice. The gap between the actual and the possible is, I argued, essential to the concept of justice itself. With this in mind, I turned, in Chapter 7, to argue that both Rawls and Habermas indeed come to acknowledge the perfectibility of their own theories, although they do not explicitly affirm the implications of this acknowledgement. Taking up Derrida’s challenge and bringing deconstruction’s practical intent to bear on the theories which Rawls and Habermas defend, I argued that the irreducible gap between the actual and the possible should be explicitly affirmed as the condition of justice’s utopian potential.

Following Lasse Thomassen’s analysis of Habermas’ ideal of rational consensus, I demonstrated that Habermas’ discourse ethics fails, both empirically and conceptually, to reconcile the freedom of the moral person, as a distinct individual, with the freedom of all, as moral equals.4 Deferring the moment of their resolution to the future, Habermas concedes that a fully rational consensus in the present “would be the end of human history”.5 Pursuing the intuitive suggestion with which Drucilla Cornell

2 Rawls, Justice as Fairness: A Restatement, 4. 3 Rawls, Justice as Fairness: A Restatement, 5. 4 Thomassen, Deconstructing Habermas, see in particular 27-33 and 33-37. 5 Habermas, On the Pragmatics of Communication, 141.

309 concludes in Philosophy of the Limit, I argued that Rawls must affirm that the established political values which can be affirmed in an overlapping consensus remain essentially transformable, open to contestation, in principle.6 Citizens in civil society can, in principle, re-enter the original position “at any time”,7 and this possibility is essential to the concept of justice itself. Re-entering the original position allows one to adjust public principles against reflective considered judgments about justice, which change in time as new social groups give voice to unforeseen problems. The inability to determine, in advance, the content of justice is to be celebrated, I suggested, as the very condition of its critical function. Justice remains “to come” in the Derridean sense, and necessarily so. Reasonable faith in justice’s possibility thus needs to be balanced by the affirmation of its impossibility.

My third reason for examining the relation between the constructive and deconstructive traditions cited my extreme dissatisfaction with the dominant history of the consideration of the problem, expressing the desire to add my own voice to a small, dissident tradition. As I argued in the Introduction, the dismissal of deconstruction as incapable of rationally defending political positions is by far the dominant view among those working within the liberal tradition. Fraser and Habermas set the tone in the 1980’s, dismissing deconstruction as a “retreat from the political”8 which absolves philosophy “of the duty of solving problems”.9 Following in their footsteps, Thomas McCarthy, Seyla Benhabib and Amy Gutmann, among many others, rejected deconstruction for refusing to affirm the very value of impartiality, thereby denying the very resource which is central to politics itself. Put simply, we can now reject this prevalent and negative dismissal as untenable. While the early criticism finds some support in Derrida’s initial unwillingness to engage with the problem of the political, it certainly cannot be sustained when his later, overtly political writings, clearly defend particular normative positions over others. Moreover, my own thesis has certainly demonstrated that deconstruction can be brought to bear on the reconstructive tradition,

6 Cornell, The Philosophy of the Limit, 182. 7 “I use the idea of the original position as a natural and vivid way to convey the kind of reasoning the parties may engage in…We can enter it at any time. How? Simply by reasoning in accordance with the modelled constraints, citing only reasons those constraints allow”. Rawls, Justice as Fairness: A Restatement, 86. 8 Fraser, “The French Derrideans: Politicizing Deconstruction or Deconstructing the Political?”, 136. 9 Habermas, “On Leveling the Genre Distinction between Philosophy and Literature”, 210.

310 productively drawing attention to the distinct ways in which both Habermas’ and Rawls’ theories of justice deal with the problem of undecidability.

Conversely, I also distanced myself from the view, held by some early sympathisers of deconstruction, that it is anti-normative and that this is somehow productive. The politics of revolution, defended by Gayatri Chakravorty Spivak, and the quasi- transcendental analysis of the irreducibility of violence, pursued by Philippe Lacoue- Labarthe and Jean-Luc Nancy, both insist that deconstruction is antithetical with normativity, thereby provoking critical vigilance with regard to the inevitable violence of the political. The arguments which I have here presented certainly do not accord with this view, which once again fails to recognise that deconstruction can and does take up positions which are distinctly normative. By emphasising the undecidable status of established norms, Derrida does not withdraw his support from normativity in general. On the contrary, deconstruction commits to the very constructive moment which Rawls and Habermas defend.

By clearly demonstrating the inappropriateness of the negative dismissal of deconstruction, I have added my own voice to the dissenting few who believe that deconstruction can be brought to bear, in productive ways, on the constructive tradition. Moreover, I defended an even stronger claim, arguing for the complementarity of the two projects. In so doing, I wish to contribute to a more ecumenical approach to political theory, one which pursues not merely the possibility of consensus and harmony, but also acknowledges the impossibility of the project. In so doing, while I unite with those like Young, Mouffe, Cornell, Honig, Honneth, Patton, and Thomassen, affirming, with them, that deconstructive insights can yield productive results the dominant tradition, my own position does not always accord with their own view of the precise nature of deconstruction’s political relevance.

By arguing, first, for the irreducibility of the constructive and deconstructive projects and, next, for their complementarity, I effectively distance myself from Young, who ultimately believes that deliberative democracy can be enlarged to include asymmetrical responsibility. I do not agree that this is possible. Conversely, my complementarity thesis also distances itself from Mouffe, who, in my view, makes the opposite error.

311 Mouffe overemphasises the impossibility of achieving consensus, warning that the Kantian apologetic, which I defend as a key element of justice, actually puts the democratic project “at risk”. She suggests that the very assumption of the possibility of resolving conflicts ultimately negates “the positive value of diversity and difference”.10 I have argued, in this thesis, that the defence of impossibility is of little value without assuming the possibility of constructing new and better forms of justice. The latter moment coincides with the Kantian apologetic which Mouffe rejects.

Nor does my thesis completely coincide with Axel Honneth’s argument that moral responsibility for the concrete other cannot be reduced to the norm of equal treatment, although it does accord with some elements. On one level, Honneth is correct to point out that a plural concept of justice, which includes both conflicting demands, cannot be exhausted by its determination in the form of principles, laws and procedures. This insight certainly accords with my own presentation of justice as perfectible. However, in my own thesis, I have also indicated that Levinas, who emphasises the responsibility before the concrete Other, nevertheless needs to commit to the value of impartiality. I have also argued that Derrida himself explicitly defends Habermas’ norm of equal treatment. My own account of the relation between deconstructive and reconstructive justice highlights that it is inappropriate to pre-determine “undecidability” in the absolute terms which Honneth uses, that is, in terms of a distinction between impartiality and care. Rather, Derrida uses “undecidability” to describe a determinate oscillation between possibilities which are themselves highly determined within particular contexts. My own deconstructive analysis of Rawls’ and Habermas’ texts identified an undecidability within the viewpoint of impartiality itself, on its own terms, and not between impartiality and non-formal care. From within the impartial standpoint itself, and using its own concepts, I demonstrated that neither Rawls nor Habermas can fully reconcile the autonomy of moral persons, as distinct individuals with the autonomy of all, as moral equals. The “undecidability” that I identified was, in this sense, internal to the theories themselves.

The complementarity thesis is compatible with the account which Drucilla Cornell, Bonnie Honig and Lasse Thomassen defend. Cornell underlines both the need to

10 Mouffe, “Democratic Politics and the Question of Identity”, 44, emphasis added.

312 commit to justice and the imperfection of justice’s actual forms. She defends Rawls’ overlapping consensus as a realistic limit to the identification of principles, while refusing to identify its content with Justice itself.11 Although she does not provide further detail, I believe that my own reading of Rawls would coincide with her suggestion. Like Mouffe, Honig takes a distinctly negative tone when speaking of the “consensual” politics which Rawls and Habermas defend. However, unlike Mouffe, she explicitly defends the need for both consensus and contestation, arguing that the one must complement the other. In this sense, I believe my own account of the relation between constructive and deconstructive politics overlaps with her own. Thomassen, too, insists that his argument “does not imply the complete rejection of any consensus or of any appeal to justice”, acknowledging instead that these stand in need of a fundamental rethinking.12 Moreover, Thomassen productively brings deconstruction to bear on the consensual politics which Habermas defends, identifying some of the more concrete ways in which Habermas’ work fails to close the irreducible gap between the actual and the possible. My own thesis lends its support to these positions. We must subscribe to reasonable faith in the possibility of both justice and consensus even as we acknowledge that the determined forms which we defend are ultimately imperfect.

We recall that Paul Patton concludes his own articles on deconstruction and the political with the view that it is too soon to judge the value of deconstructive approaches for normative philosophy. I hope to have provided at least some reason to believe that deconstructive political philosophy can yield productive results for the constructive tradition. A more ecumenical approach to political theory, one which commits to the possibility of justice while drawing attention to its impossibility, has the potential to sustain and strengthen, by insisting on its irreducibility to present norms. In the process of defending the complementarity of the deconstructive and reconstructive project, I have indicated that the affirmation of the constitutive gap between the actual and the possible is essential to the concept of justice itself.

Deconstruction finds itself at home in Rawls’ statement that, “The ideal of a just constitution is always something to be worked toward… A just regime is a project, as

11 Cornell, The Philosophy of the Limit, 182. 12 Thomassen, Deconstructing Habermas, 27.

313 Habermas says, and justice as fairness agrees”.13 Justice is perfectible, both possible and impossible. This is why we can call on the ideal of justice, so as to critique its determined forms.

13 Rawls, “Reply to Habermas”, 401-402.

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