The Unseen Foundations: Rawlsian Constructivism and the Implicit Reliance on Factual Recognition — Epoche C1
What Rawls Built: The Original Position as a Constructivist Device John Rawls's A Theory of Justice (1971) belongs to the social contract tradition of Hobbes, Locke and Rousseau, in which the legitimacy of political arrangements is traced to an agreement among the people who must live under them. Rawls's innovation was to make the agreement explicitly hypothetical and rigorously idealised. He asks what principles for the basic structure of society would be chosen in the "original position": a situation in which rational parties select principles behind a "veil of ignorance" that hides from each of them their own social class, natural talents, sex, religion and conception of the good life. The veil is not a mystification; it is a modelling device for impartiality. Since no party knows which position in society she will occupy, none can tailor the principles to favour her own case, and so whatever is chosen is fair to every position — which is why Rawls calls his view "justice as fairness". From this standpoint, he argues, the parties would choose two principles: equal basic liberties for all, and social and economic inequalities arranged to the greatest benefit of the least advantaged and attached to positions open to all. The philosophical programme behind this device is what Rawls, in his 1980 Dewey Lectures "Kantian Constructivism in Moral Theory", called constructivism. The contrast term is moral realism, and in particular the intuitionism that dominated early twentieth-century British ethics: the view that there are moral facts standing independently of us, which we discover by a quasi-perceptual faculty of intuition. Constructivism denies that justification works by discovery. Principles of justice are correct, on this view, not because they mirror a prior moral order, but because they are the output of a procedure of construction — a procedure that itself models everything we are prepared to endorse about fair conditions of choice. Later, in Political Liberalism (1993), Rawls added the term the present essay leans on: the conception of justice is to be "freestanding", presented without dependence on any comprehensive doctrine — any full religious or philosophical account of the meaning of life, such as utilitarianism, Kantian ethics, or a religious worldview. Strictly speaking, then, a small correction to the compressed version of this essay is in order: "freestanding" is the vocabulary of the 1993 book, not of A Theory of Justice , and Rawls introduced it precisely because he had come to doubt that the earlier book's account of stability could work in a society whose members hold different comprehensive doctrines. That doubt is not incidental to our topic; it is our topic. The Stability Problem and the Sense of Justice A theory of justice must answer two questions, and it is vital to keep them apart. The first is justificatory: which principles are the right ones? The second is motivational: why will people who grow up under those principles actually comply with them, especially when compliance costs them something? Rawls took the second question with unusual seriousness — the whole third part of A Theory of Justice is devoted to it, under the heading of "stability". A conception of justice that human beings could not bring themselves to live by would be, in his word, utopian in the bad sense; the principles must generate their own support over time. His answer runs through an explicit moral psychology. In §75 of A Theory of Justice Rawls lays down three "psychological laws" describing how a sense of justice develops. First, a child who is loved and manifestly cared for by her parents comes to love them in return. Second, a person who benefits from a social arrangement whose participants evidently do their part develops friendly feelings towards them and becomes willing to do her own part — the morality of association. Third, someone who recognises that she and those she cares for are beneficiaries of just institutions acquires a desire to uphold the principles themselves — the morality of principles. Notice the form of these claims: they are presented as law-like regularities of human development, reciprocity written into our nature. Rawls then argues (the "congruence" argument) that in a well-ordered society, having a sense of justice belongs to a citizen's own good, so that justice and rational self-interest converge. In Political Liberalism this apparatus is recast as the demand for "stability for the right reasons": citizens must comply not from fear or habit but because each, from within her own comprehensive doctrine, can affirm the political conception — the hoped-for "overlapping consensus". The Implicit Factual Foundation Here is the internal tension this essay presses. The justificatory machinery is constructivist through and through: principles are made, not found. But the motivational machinery is not constructed at all — it is asserted , as a body of psychological fact. The three laws of moral development are empirical generalisations about how human beings respond to being treated well; the original position did not produce them and could not have. More deeply still, the entire scheme presupposes that when citizens recognise the fairness and rationality of the principles, that recognition moves them. This is a substantive assumption about the authority of reasons over human conduct: that seeing an arrangement to be fair, consistent and mutually justifiable exerts a pull on the will. Call this the factual recognition of reason's compelling power. It is a "fact" in the relevant sense — something taken to hold of human beings antecedently to any construction — and the theory's stability stands or falls with it. The saying of Confucius in the Analects (9.29), "The wise are not perplexed; the benevolent are not anxious; the brave are not afraid", is apposite here because it articulates the same pre-theoretical thought: that there are capacities of discernment and charact