Abstract
Much recent debate within political theory is dominated by two different conceptions of how political theory should be undertaken. Drawing on different versions of Kantianism, constructivist approaches focus on the construction of normative principles, employing thought experiments and conceptual analysis as means for philosophical reflection. This perspective, which dominates much of Anglo-American political philosophy, often proceeds without reference to real-world analysis. This tradition is opposed by a tradition that is often claimed to have its roots in Hegel and claims to reconstruct empirically the material that is the point of departure for philosophical reflection. Typically, the former tradition has been associated with John Rawls, whereas the latter is normally connected to Jürgen Habermas.
The relationship between constructive and reconstructive theory is, however, not clear. This is partly due to the fact that there are elements of constructivism and reconstructivism in both Rawls’s and Habermas’s work (Forst 1999, 118) and partly because both Rawls and Habermas change their understanding of their respective methodology. The early Rawls talks about moral and Kantian constructivism, whereas the Rawls who writes Political Liberalism (1993) devotes a chapter to describe political constructivism. Similarly, the Habermas of the 1970s primarily speaks of reconstructive theory as a kind of conceptual analysis, whereas the Habermas who writes Between Facts and Norms (1992) refers to reconstruction also as an empirical enterprise.
This lack of clarity causes a number of confusions in the literature on Rawls and Habermas both when it comes to their individual work and regarding the relationship between them. Rawls is often considered to be a pure constructivist with no contact with the empirical world of real politics (Geuss 2008). And Habermas is often considered to be a traditional normative theorist, without taking into account his reconstructive methodology.
Hedrick’s book does a fine job in introducing the key elements of the debate between Rawls and Habermas. Hedrick demonstrates good command of the writings of Rawls and Habermas, as well as the extensive secondary literature. But as I argue toward the end of this review, he fails to clarify the constructive/reconstructive dimension, which is crucial to grasp fully one of the most important differences between the two thinkers.
The book is organized in nine chapters in addition to an introduction. The first three chapters include a presentation of Rawls’s key concepts as well as the descriptivist critique of Rawls represented by thinkers such as Joseph Raz and Habermas. In the fourth chapter, Hedrick sums up the criticism leveled at Rawls and turns to Habermas to find out whether there are resources available in his conception that make it possible to overcome the problems that Rawls came up against. Chapter 5 and 6 investigate Habermas’s theory, whereas chapters 7 and 8 turns toward the constitutional dimensions of Rawls and Habermas. In the final chapter, Hedrick discusses the political theory of Rawls and Habermas against objections from the “realist” camp within political theory (Richard Posner).
Allow me to say a few words on Hedrick’s overall project before we examine his detailed argument: First, his reading strategy is to read Rawls and Habermas as Hegelians. This means that instead of taking the more traditional view of reading them as Kantians or as theorists of deliberative democracy, Hedrick suggests that it is better to read them as thoroughly influenced by Hegel. When it comes to Rawls, the Hegelian reading involves focusing on the use of “public reason to reconcile opposed private worldviews at the higher level of political justice.” And in the case of Habermas, Hedrick sees him as “essentially siding with Hegel against Kant by maintaining that reason cannot be realized monologically, and in order to be actual must be mediated by social activity” (2-3). Second, Hedrick’s perspective is more influenced by Habermas than Rawls, but his defense of Habermas sometimes needs some Rawlsian elements to overcome some serious problems inherent in the theory. I come back to both of these aspects toward the end of this review.
Now, let us first examine the descriptive critique Hedrick levels at Rawls. To understand this criticism, we must remind ourselves that Rawls’s project in Political Liberalism is to work out a conception of political legitimacy to face the fact of reasonable pluralism. In short, Rawls’s claim is that this requires a politically freestanding conception of justice where people holding different comprehensive doctrines can establish an overlapping consensus on the principles that regulate the basic institutions of society, without expecting them to agree on the deeper justification of these principles. Introducing the criticism of this conception, Hedrick writes,
In the wake of the “political turn” in Rawls’ thought—inaugurated in the early 1980’s, institutionalized in Political Liberalism and extended in his final papers on public reason—both sympathizers and critics have worried that this metatheoretical reorientation transforms Rawls’ theory of justice into more of a description of the beliefs that reasonable liberals are likely to settle on, over time and with due consideration, than a prescriptive theory about what conception of justice ought to be applied to the basic structure of society. (27)
To make this general critique more concrete, Hedrick draws on Joseph Raz. Raz asks why we should accept that what we can agree on represents the conception of justice that we should endorse, in particular if what we can agree on is very different from our comprehensive conception of justice. According to Hedrick, this kind of question demands an answer that Rawls is not willing to give, because his conception of justice must be freestanding. Thus, Rawls cannot say, as Charles Larmore does, that it is a moral principle of equal respect that demands that we seek consensus. For Larmore, moral reasons inform us to seek a kind of overlapping consensus, because that is the only way to ensure equal respect for all (71). But for Rawls, this kind of moral foundationalism is precluded because the ambition is to come up with a freestanding conception of justice. On Hedrick’s view, this makes Rawls’s position vulnerable to the kind of criticism Raz presents.
Habermas has also presented a kind of criticism that Hedrick claims is another example of descriptive critique: we might see an overlapping consensus as something that might develop over time in a constitutional liberal democracy. But Rawls is, according to Hedrick, unable to provide us with a proper justification of why we as citizens are obliged to work for the establishment of such a consensus. Let us examine this line of criticism.
Hedrick’s point of departure is a passage in Rawls’s reply to Habermas in which Rawls outlines how a political conception, which one can expect there to be an overlapping consensus about, is established. Here, Rawls is denying that justice as fairness is worked out simply on the grounds that it will have a good chance to be accepted. Instead, “the political conception is worked out first as a freestanding view that can be justified pro tanto without looking to, or trying to fit, or even knowing what are, the existing comprehensive doctrines” (42). This means that the political conception of justice must not be shaped by the different comprehensive doctrines but must instead be developed based on its own logic. But that also means, as Habermas points out, that the initial formation of a theory of justice must leave the outcome of the acceptability test—that is, the test of whether the theory is able to establish an overlapping consensus—undetermined (42).
The problem according to Hedrick’s Habermasian reading is that Rawls, by making this move, pushes the justification of the political conception over to the different comprehensive doctrines. Hedrick claims that Rawls leaves it to citizens themselves to find out how justice as fairness fits into their comprehensive doctrines. That means that Rawls also leaves it to them to find out what that conception means in practice (26). The problem with Rawls’s design is, according to Hedrick, that “Rawls does not see the construction of a consensus in political liberalism’s sense of the term as a consciously undertaken process of collective will formation or coming to an understanding” (43). There is no exchange of arguments, where a binding decision can be reached; instead, Rawls has to rely on what Habermas refers to as a “lucky coincidence” for an overlapping consensus to come about. Thus, according to Hedrick’s criticism, Rawls is unable to grasp the intersubjective dimension necessary to establish a binding consensus.
On Hedrick’s analysis, there is, then, a crucial difference between Rawls and Habermas. Rawls cannot support any normative demands on the “process through which individuals develop their conceptions of justice, and through which an overlapping consensus might take place” (45). Habermas, however, can argue that “our common reason does dictate certain standards for action and belief that are independent of whatever is contained in our private worldviews” (77). To Hedrick, this raises a serious problem for Rawls, which involves an intricate question of the relationship between justification and application. The problem with Rawls’s model of consensus is that it is left to each individual citizen to embed the conception of justice in one’s comprehensive doctrine. In matters of application, where general principles have to be applied to concrete cases concerning constitutional essentials, it will, on Hedrick’s reading, become all too evident that such a consensus is too fragile to ensure the manner in which principles of justice can be applied: “The sharedness of the semantic content is due to a fortunate confluence in the political culture, rather than being established by rational discourse between citizens about the meaning and value of political principles” (164). Or, to put it differently, because the public principles of justice do not exist independently of how they are embedded in the different comprehensive doctrines, which is due to the lack of rational discourse, it will always remain unclear what it will mean to apply the public conception of justice to cases of constitutional essentials. This makes Rawls’s conception vulnerable to Frank Michelman’s critique of constitutional contractarianism, which claims that it cannot be rational to confer legitimacy on a set of abstract constitutional principles if one cannot know how these principles will apply in concrete cases.
Now, what about Habermas? Is he also vulnerable to such criticism? According to Hedrick, he is not, or at least not to the same extent as Rawls. I reconstruct Hedrick’s defence of Habermas in three steps. First, a rational consensus of the Habermasian kind is a consensus that promises to give a single right answer to questions of constitutional principles. This is in contrast to Rawls’s overlapping consensus, which is embedded in different private comprehensive doctrines and therefore cannot be univocal and objective in the strong sense. Hedrick quotes Habermas: “The democratic process promises to deliver an imperfect but pure procedural rationality only on the premise that participants consider it possible, in principle, to reach exactly one right answer for questions of justice” (171).
This understanding of a univocal consensus around constitutional principles is important also for the next step. Habermas maintains an important distinction between discourses of justification and discourses of application. In the former, parties consider which norms are in the interest of all affected, whereas in the latter, already-justified norms are to be applied to concrete situations. In a given situation, a number of norms can be relevant, and a discourse of application shall determine exactly which. According to Habermas, the justificatory discourses are typically carried out in the legislature, whereas the discourses of application are carried out in the judiciary. The crucial point is that the distinction opens up the possibility that serious disagreements about constitutional principles “are disagreements about application, which would not undermine any consensus achieved by prior discourses of justification” (171). But still, this does not preclude the possibility of disagreements on the level of justification, even though it reduces the potential for it.
A possible solution to that problem could be found in Habermas’s concept of constitutional patriotism. To Habermas, constitutional patriotism is the modern equivalent to a healthy kind of nationalism. It is an identity that citizens develop around the principles laid down in the constitution. It provides the necessary solidarity required to motivate citizens in a community that no longer can be integrated through a common conception of the good. It does a crucial job, which might make it possible for Habermas to overcome the problem raised by Michelman. Hedrick writes,
When citizens know one another to be constitutional patriots, similarly dedicated to a shared way of realizing a constitutional project, they can be reasonably confident that their disagreements over matters of justice and constitutional rights represents disagreement over application of the same principles, and not fundamental disagreements about the meaning of the principles themselves (177).
Thus, Habermas, on Hedrick’s account, is in possession of the conceptual resources necessary to overcome the critique, at least in a better way than Rawls. The more robust concept of consensus, the distinction between justification and application, and the concept of constitutional patriotism ensures this.
Hedrick’s main achievement is that he makes Habermas’s criticism of Rawls understandable. But I am not convinced that the criticism that Hedrick ends up with actually hits the weak spots in Rawls. But I have to leave that discussion open and focus on some general problems with Hedrick’s approach.
The first point involves Hedrick’s reading strategy. Hedrick is, in my opinion, correct in his insistence to read Rawls and Habermas as Hegelians, but he does not spell out to a sufficient degree what such a reading entails. Recently, James Gledhill has made important contributions that might illuminate this weak spot in Hedrick’s analysis. For instance, Gledhill (2011, 11), drawing on Burton Dreben’s writings on Rawls, demonstrates how Hegelian Rawls’s nonfoundationalist approach to political philosophy is.
Second—and this brings us back to the point of departure for this review—a more thorough examination of the Hegelian aspects of the two thinkers could have helped to produce a better understanding of the constructive and reconstructive elements operating in Rawls’s and Habermas’s writings. Given that Forst is correct in his observation that there are elements of construction and reconstruction in both thinkers, what is required is a detailed analysis of where and how Rawls and Habermas construct and reconstruct. Hedrick recognizes the centrality of this point and comes up with an interesting formulation of the problem:
A reconstruction attempts to capture the structure of a rational process that produces an outcome—such as an interpretation, a judgment, or a law—whereas Rawls’ constructivism begins with substantive outcomes (that is the basic intuitions of the modern moral worldview) and lays out an artificial process for synthesizing and extending them (82-83).
This is informative, but without any further discussion, it works more as a teaser than as a proper discussion that could have taken the understanding to a new level. However, it should be noted that the understanding of the difference between constructivism and reconstructivism is no easy task. As far as I know, no work to date has given a satisfactory analysis of this, which of course makes it an important research task for coming work in political theory. But despite the problems hinted at here, Todd Hedrick’s book does provide invaluable assistance for the general understanding of the Rawls-Habermas debate.