Abstract
The debate between Jürgen Habermas and John Rawls concerns the question of how to do political philosophy under conditions of cultural pluralism, if the aim of political philosophy is to uncover the normative foundation of a modern liberal democracy. Rawls’s political liberalism tries to bypass the problem of pluralism, using the intellectual device of the veil of ignorance, and yet paradoxically at the same time it treats it as something given and as an arbiter of justification within the political conception of justice. Habermas argues that Rawls not only incorrectly operationalizes the moral point of view from which we discern what is just but also fails to capture the specificity of democracy which is given by internal relations between politics and law. This deprives Rawls’s political philosophy of the conceptual tools needed to articulate the normative foundation of democracy.
Introduction
In this article, through a reconstruction of the debate between Jürgen Habermas and John Rawls, I argue that democratic politics should not be understood, from the normative point of view, as applied morality, that is, mainly in terms of institutionalized justice. Following Habermas, I equate here morality with justice, both of which refer to what is in the equal interest of all. 1 Politics should not be conceptualized as justice embedded in legal forms; rather it should be understood, from the beginning, as a normative domain that is distinct from justice. In the first section, I provide an overview of Rawls’s ‘political turn’ as a point of reference for Habermas’s critique of political liberalism. Then, in the second section, I present the critique, which is an immanent one and concerns a proper way of explicating the moral point of view, that is, the perspective from which we discern what is just. There are three parts to the critique. In the first, I deal with the problem of justification of the principles of justice in the context of cultural pluralism. In the second, I argue, following Habermas, that Rawls’s political liberalism lacks a public, common perspective. In the last part, I distinguish between two kinds of normativity to get a better grasp of Habermas’s concept of justification. The presentation of the critique of execution of Rawls’s normative project is to help us, in the last section, to reach a better understanding of what kind of validity claims justice raises and why, according to Habermas, democratic politics cannot be conceptualized solely in terms of justice. Because of the special kind of validity claims it makes, democratic politics is different from morality and requires a different kind of justificatory discourse.
Rawls’s political turn
The main focus of the debate between Jürgen Habermas and John Rawls 2 was the latter’s late political philosophy, that is, political liberalism. 3 During the debate, Habermas’s own ideas were exhibited only in contrast and argumentation with those of Rawls. 4 Therefore, Rawls’s ‘political turn’ 5 constitutes a key context in which the debate took place. The political turn refers to the reformulation of the main ideas of justice as fairness, that is, the conception of justice presented in Rawls’s seminal work A Theory of Justice (1971). The task of a conception of justice is to lay the normative foundations of democracy, namely to specify ‘the fair terms of social cooperation between citizens regarded as free and equal, and as fully cooperating members of society over a complete life, from one generation to next’ (Rawls, 2005, p. 3). In other words, a conception of justice should provide ‘a basis of a reasoned, informed, and willing political agreement’ (Rawls, 2005, p. 9). This task is particularly challenging if we consider that a basis of agreement must be found amid wide disagreement, namely pluralism (Waldron, 1994). It requires drawing new distinctions and expanding philosophical vocabulary.
The novelty of political liberalism lay in its distinction ‘between moral and political philosophy’ (Rawls, 2005, p. xv). In A Theory of Justice, the conception of justice as fairness was presented as a part of moral theory, which meant that the principles of justice were moral principles applied to a specific subject, namely ‘the basic structure of society’ (Bedau, 1978; Rawls, 1971, p. 3). It is tempting to think of the basic structure of society as simply a set of major social institutions, but Rawls stresses their organization into ‘one system’ (Rawls, 1977, p. 159) and the effects of their workings on the lives of individuals. The institutions assign rights and duties and distribute advantages and burdens of social cooperation. In other words, they determine the position of an individual in a society and her life prospects (Rawls, 1971, p. 7).
Rawls distinguishes two parts of the basic structure of society, to which his two principles of justice correspond. The first consists of institutions determining the status of citizenship through assigning liberties and rights. The second covers economic institutions (Rawls, 1971, pp. 61–65). All these institutions are politically structured. This political aspect of the institutions is a defining characteristic of the special domain to which the principles of justice are applied. Political organization of the basic structure means, on the one hand, that compliance with its rules is backed by a coercive sanction and, on the other, that the main institutions are involuntary in the sense that we cannot freely decide about our access to them. Rawls conceives of the basic structure as one which ‘we enter only by birth and exit only by death’ (2005, p. 445).
However, the application of the principles of justice to the specific, political subject was nothing new. This idea was already present in A Theory of Justice. That novelty was a way of justifying the principles. Before the political turn, the justification was conceived as a philosophical enterprise in grounding universally valid principles in reason. As it turned out, reason plays a limited role in securing an agreement on the principles of justice because it is a source of disagreement rather than agreement. The result of ‘the powers of human reason at work within the background of enduring free institutions’ (Rawls, 2005, p. 4) is a pluralism of irreconcilable but at the same time reasonable ‘comprehensive doctrines’ (Rawls, 2005, p. 13), that is, doctrines which cover non-political areas of our life (moral in the Rawlsian sense, philosophical, and religious) and which may, in principle, aspire to cover all aspects of our life.
The fact of ‘reasonable pluralism’, as Rawls called it (2005, pp. 36–37), imposes some constraints on the justification of the principles of justice. The justification cannot proceed from any of these doctrines. In other words, the political conception should be presented as a ‘freestanding view’ (Rawls, 2005, pp. 10–13), worked out independently from comprehensive doctrines. The other condition is that the political conception of justice could be the focus of an ‘an overlapping consensus’ of reasonable comprehensive doctrines (Barry, 1995; Rawls, 1987, 2005, pp. 133–172). This means that the principles of justice may be accommodated into these doctrines, fitting within them as a part or ‘module’ (Rawls, 2005, p. 12). Instead of developing the political conception out of comprehensive doctrines, Rawls proposed to construct it out of fundamental, intuitive ideas present in the political culture of a democratic society. These ideas are ‘those of political society as a fair system of social cooperation, of citizens as reasonable and rational, and free and equal’ (Rawls, 1995, p. 135). Their normative content is fully articulated – using familiar intellectual devices as the ‘original position’, the ‘veil of ignorance’ and so on – in the form of the principles of justice.
The meaning of political philosophy is therefore given not only by the specific subject (the basic structure of society) but also and indeed primarily by the new way of justification and presentation of the principles of justice. Political justification is based on the contrast between the conception of justice and comprehensive doctrines, and the normative content of the principles of justice is expressed in specific terms of ‘political’ values, as Rawls called them, namely the ideas of society, of citizens and their derivatives. As such, the political turn meant that political philosophy was granted a considerable degree of autonomy: its own subject matter, an independence from other domains of intellectual enquiry and its own content.
We may regard the political turn as the way in which Rawls responded to the sociopolitical changes and expectations of the late 1980s and 1990s. There were two factors at play here. The first was religious and cultural pluralism. The second was a growing disappointment in the face of the abstract individualism of liberalism and an increasing need to recognize the value of community.
The reading of Rawls’s philosophy as a reaction to pluralism seems quite obvious. The idea of the reasonable pluralism of comprehensive doctrines is a philosophical (in the sense of political philosophy) interpretation of the sociological fact of the diversity of beliefs and worldviews in modern, liberal societies. By ‘philosophical interpretation’ I mean that Rawls tried to show how this pluralism could be vindicated, namely to show that reason and freedom combined lead to profound differences in our worldviews. He argued that this pluralism is justifiable, hence the pluralism is a reasonable pluralism, not just a pluralism. 6
The reading of Rawls’s political liberalism as a way of expressing values of political community may seem less convincing since he rejected the interpretation of his political turn as a reaction to the communitarian critique of A Theory of Justice (Rawls, 2005, p. xvii, n. 6). 7 In A Theory, the principles of justice seemed to be grounded in reason alone. They claimed universal validity which transcended the boundaries of any particular political community. In Political Liberalism, although Rawls did not abandon all talk of reason, the justification is based on those ideas we find present and shared in a particular form of political community, namely Western liberal democracies. This political community is not only highly diversified, which puts it at risk of conflict, it also has a reservoir of shared values which can be stabilizing forces. Rawls’s political philosophy was, therefore, an attempt to explain these two aspects of a liberal democracy: the plurality of worldviews and the unity of fundamental values. By articulating the normative content of shared ideas in terms of the principles of justice, Rawls’s theory was intended to help stabilize liberal democracy as well.
Habermas’s critique
In his widely cited article, Habermas claims that not only does he admire Rawls’s theory of justice but he also shares ‘its intentions’. As such, he notes, ‘the dissent I express here will remain within the bounds of a familial dispute’ (Habermas, 1995, p. 110). The intentions that Habermas shares with Rawls are mainly of a normative character. Habermas’s critique pertains mainly to the execution of Rawls’s normative project. His conclusion is that Rawls’s relative failure to properly carry out his project may compromise its normative results.
The general aim of Rawls’s philosophical project was, according to Habermas, to resolve the deeply embedded conflict within democratic traditions and practices between the claims of liberty and the demands of equality. This conflict splits democratic thought into liberalism and republicanism. Liberalism cherishes ‘the liberties of the moderns’, namely liberties protecting our individual freedom to lead a life without interference from a government, society and other individuals, while republicanism gives priority to ‘the liberties of the ancients’, that is, rights to participate in political life which has intrinsic value. Habermas recasts this conflict in terms of two kinds of autonomy: private and public. Private autonomy is secured by ‘the liberties of the moderns’, and public autonomy, which finds expression in ‘the democratic principle of legitimation’, is guaranteed by ‘the liberties of the ancients’ (Baxter, 2011, pp. 80–81; Habermas, 1995, pp. 110, 127–128). 8 The aim of philosophy is to show how these two kinds of autonomy are co-original and do not dominate one another. To do so, we need to formulate principles of justice which can successfully combine the claims and demands of liberty and equality into a coherent whole. 9 Unfortunately, Rawls’s theoretical decisions and moves, claims Habermas, prevented him from achieving this.
An operationalization of the moral point of view
First of all, Rawls failed to properly operationalize the moral point of view, that is, the point of view from which we are able, in an impartial manner, to determine what norms are in the equal interest of all. The task of expressing this point of view, from which we could establish the principles of justice, is especially challenging under conditions of pluralism. This is so because interests can be expressed, communicated and understood only in terms of values which are weaved into an intricate web of philosophical or religious beliefs. Then, only those interests that can be accepted from the impartial moral point of view, or can be universalizable, are legitimate. So, if we adhere to different worldviews and then articulate our interests in different ways, how could we reach an agreement on the principles which express only legitimate interests? Setting out how best to achieve this end marks the crucial point of disagreement between Habermas and Rawls.
Rawls put forward two proposals for dealing with differences of interests and values attached to those interests. The first, which I will call negative, is the well-known idea of the ‘original position’ alongside that of the ‘veil of ignorance’. I call it negative because the main objective of the veil of ignorance is to filter out those interests that are not permissible (Rawls, 2005, pp. 24–25). The second, which I will call positive, is the idea of overlapping consensus, which sets out the condition that principles of justice must be the subject of the consensus of reasonable comprehensive doctrines. This means that we must weave interests, which have already been established as legitimate at the level of the original position, into the web of our beliefs, or comprehensive doctrines. Only if each citizen is able to incorporate the principles of justice into her other beliefs can we say that the conception of justice is neutral to all reasonable comprehensive doctrines and finally justified.
Habermas thinks that Rawls’s way of proceeding here is wrong. First, if we look at the design of the original position, Habermas claims, we see that the aim of the veil of ignorance is to rule out all our beliefs and pieces of information that can impair the impartial choice of the principles of justice which should only express legitimate interests. And in so doing, the veil of ignorance imposes the common perspective on the parties in the original position. The parties do not know what their particular interests are, and therefore they can secure only those interests that are common to all. In other words, they are forced to secure only what is in the equal interest of all. However, this means that a philosopher who designs the original position and draws the veil of ignorance has to already know what constitutes a legitimate interest and what can impair our choice of the principles of justice. Thus, the philosopher carries the burden of discerning what is in the equal interest of all. Therefore, Habermas concludes, the substantial, normative convictions and ideas of the philosopher play an essential role in formulating the principles of justice.
Rawls makes another contestable move as well. Even if these normative ideas, out of which the conception of justice is worked, are implicit in a public political culture of a democratic society, and we can presuppose that their institutionalization means that they are shared by all reasonable citizens, we need to make sure ourselves whether the conception of justice is acceptable to all of them or can become the subject of an overlapping consensus. If the conception of justice is to be a normative basis for social cooperation and to stabilize a democratic society, it cannot be divisive. Citizens must have reasons embedded in their comprehensive doctrines to acknowledge this conception of justice and its articulation of the principles of justice. Therefore, according to Rawls, only if all citizens accept, from the perspective of their comprehensive doctrines, the conception of justice can we say that this conception is publicly justified. And only then the consensus on the conception of justice is not a modus vivendi, a compromise grounded in our prudential reasons, but a consensus based on moral in the Rawlsian sense, philosophical or religious reasons. 10
Although the intuition behind the idea of an overlapping consensus seems quite uncontroversial, since it simply states the principle of neutrality, namely that justified principles should be acceptable to all and should not favour any comprehensive doctrine, for Habermas, the above solution proposed by Rawls is untenable. The main gist of his criticism is that Rawls deals with pluralism incorrectly and reverses the order of justification. While the pluralism of comprehensive doctrines is qualified, that is, it is reasonable pluralism, 11 it is the fact that the overlapping consensus obtains which is the ultimate arbiter of whether we can recognize the conception of justice as justified. Therefore, the justification of the conception of justice depends finally on some kind of facticity. Philosophy can only require, anticipate or hope that the overlapping consensus obtains, meaning that the justification of the principles of justice seems to lie beyond the reach of philosophy. As a result, Habermas argues, ‘the distinction between its [the conception of justice] justified acceptability and its actual acceptance’ has collapsed (1995, p. 122).
Habermas argues, therefore, that resting the dependence of justification of the principles of justice on the fact of obtaining an overlapping consensus entails a reversal of the relation between the public and the private. The conception of justice should be justified in terms of public reasons, that is, reasons that are accessible to all. Because of a pluralism of worldviews, even if this is reasonable pluralism, reasons based on comprehensive doctrines cannot be public in this sense. There is no comprehensive doctrine which would be shared by all. As the opposite of the public, reasons based on comprehensive doctrines are private. I can recognize your reasons as reasonable because they belong to a reasonable doctrine, but I cannot comprehend them because they belong to a different comprehensive doctrine from mine. Therefore, the dependence of justification of the principles of justice on the reasonable comprehensive doctrines means that they are justified in terms of mutually incomprehensible reasons. In a well-ordered society, or simply in a just society, every citizen accepts the same conception of justice (or a family of liberal conceptions of justice), but they accept it for different reasons.
Rawls’s two philosophical moves – introducing the veil of ignorance and an overlapping consensus – have, for Habermas, the following consequences. First, there is a risk that highly substantial content will be introduced, by a philosopher, into an allegedly procedural design of the original position with the veil of ignorance. Second, the dependence on the overlapping consensus, in the case of justification of the conception of justice, means blurring the distinction between normativity (‘justified acceptability’) and facticity (‘actual acceptance’). Third, it also means that Rawls gives priority to private reasons over public ones.
Universal we-perspective
In this light, we can ask: what went wrong? As stated above, Habermas argues that Rawls wrongly operationalized the moral point of view. To unpack this claim, we need to understand how, according to Habermas, the moral point of view should be explicated. To do this, we need to return to Rawls for a moment. In his ‘Reply to Habermas’, Rawls distinguishes three levels of justification: ‘first, pro tanto justification of the political conception; second, full justification of that conception by an individual person in society; and, finally, public justification of the political conception by political society’ (1995, p. 142). The first corresponds to a freestanding justification of the conception of justice; the last one stands for an overlapping consensus of reasonable comprehensive doctrines. The second, intermediate level of justification means that a citizen is supposed to interweave the conception of justice with her comprehensive doctrine. At the third level, every citizen does so, taking into account that all others have done the same.
If we take a closer look at the different levels of justification, we can see two kinds of change in the perspectives. As previously noted, at the first level, in the case of freestanding justification of the conception of justice, we adopt a public and, at least in principle, common perspective. This is a public point of view because the conception of justice is directly worked out of ideas of practical reason, as seemed to be the case in A Theory of Justice, or out of ideas present in a public political culture, as was the case in Political Liberalism. Then, we need to change the perspective from public to private. First, as a philosopher, I am trying to formulate a public conception of justice, and after that, as a citizen of the democratic society, I need to fit this conception into my comprehensive doctrine. As Habermas insists, reasons based on comprehensive doctrines are private because they are not comprehensible to all. As such, justifying the principles of justice from within my comprehensive doctrine is something I do as a private person.
The shift from a public point of view to a private one is not the only contentious move that Rawls made, because when I have justified the conception of justice in terms of my comprehensive doctrine, I have to see that others have done so as well. This is the idea behind the overlapping consensus. We reach the last stage of justification when the fact of the overlapping consensus obtains. This means that I have to change my perspective once again. However, this time, the shift is not from a public perspective to a private one, but rather from the perspective of a participant to that of an observer (Habermas, 1998b, pp. 83–84). 12 As someone who is engaged in working out and justifying the principles of justice, I am doing this with a practical intent, namely to determine fair terms on which I will cooperate with others whom I recognize as free and equal persons. The same is true in the case of the second step in justification. I fit the principles of justice into my overall life plan or into the conception of the good based on a comprehensive doctrine I profess. I recognize them as the principles which are to govern my relationships with others, which are part of my conception of a good life. However, when I try to ascertain that others have accepted the conception of justice on the basis of their comprehensive doctrines as well, I can only observe this as a fact. At this level, I cannot engage in the process of justification carried out by others. I am merely an observer of an external process and its results.
Although Rawls calls justification at the last level the ‘public justification of the political conception by political society’ (1995, p. 142), Habermas argues that it is not a public justification and it is not a justification by political society. And this is so not only because reasons on which the justification is based are not public – in that sense, the public character of justification had already disappeared at the second level – but also because in Rawls’s theory, it lacks a truly common and public perspective from the outset. At the first stage of a justification, the common perspective is artificially created by a philosopher and externally imposed on the parties, which are artificial agents themselves, in the original position. Thereafter, at the second level, the justification is individually carried out by a flesh-and-blood citizen. Finally, at the last level, every citizen links the conception of justice with their comprehensive doctrines. However, they do so separately, not jointly; therefore, there is no point in saying that the conception is justified by political society. It is justified by individual members of political society, not by political society taken as a whole. When the overlapping consensus obtains, all we can say is that all citizens have justified the conception of justice, but we cannot say that they have done it jointly.
The lesson that can be drawn from Habermas’s critique of Rawls is not only that the moral point of view should be conceptualized as a common perspective, and not simply as an individual perspective shared by all, but also that we should be careful to avoid incorporating from outside any substantial content into the moral point of view. Or, as Habermas puts it, we should proceed ‘in a strictly procedural manner’ (1995, p. 116). The content of moral norms, which are in the equal interest of all, cannot be determined under the conditions of modern pluralism by an individual in her thinking. She brings in her background normative presuppositions and has limited opportunities to transcend them individually. These presuppositions are necessary to express any interests, but at the same time they are particular and context-dependent. Therefore, they need to be reformulated so that we can acquire norms which are in the equal interest of all. This is only possible if we engage in a joint enterprise of working out a common perspective. In other words, an individual, who is seeking universal norms, needs, as Habermas claims, to move from the I-perspective, which is already given, to a we-perspective, which is being worked out, for example in a ‘joint process of ‘ideal role taking’’ (Habermas, 1995, p. 117; Nunner-Winkler, 2018, pp. 578–579). Here, Habermas radically diverges from Rawls. For the latter, the principles of justice as fairness are worked out by a philosopher in her thinking, not jointly by all interested individuals. It is worth noting that a we-perspective, from which it is possible to discern what is just, is not a perspective of a given community of shared attitudes, beliefs and values. It has to be worked out in a joint enterprise which requires transcending every already established community.
Even if the universal content of the principles of justice could be determined in a monological way by an individual, this would not suffice, because norms must be not only in our equal interest but also self-legislated. This is the core of the Kantian conception of autonomy. Only those norms are binding on us which have been accepted by us. It is obvious that some ideal conditions must be satisfied in order that the agreement on the principles of justice could be valid; however, it is important here that justificatory discourses must be actually carried out. Otherwise, we are robbed of our autonomy. This means that the realization of our autonomy is an open-ended process and cannot be modelled by philosophers. Nor can the results of its use be simply anticipated.
Normativity of proceduralism
The requirement that we should avoid bringing normative content into the procedure from outside might be a tricky one to meet, because it may suggest that strict proceduralism does not presuppose any normativity and that any normative consequences follow from it. This is not the case. Rawls’s proceduralism is highly normative. The design of the original position reflects some normative ideals – such as the idea of a reasonable, rational, free and equal person and that of a society as a fair system of cooperation. Unlike Rawls, Habermas does not ground his proceduralism on normative ideals; instead, he reconstructs ‘‘unavoidable’ pragmatic presuppositions’ (Habermas, 2008, p. 82) of the ‘public practice of argumentation’ (Habermas, 1995, p. 127). The task of a philosopher, therefore, is not to construe the moral point of view out of moral ideals and beliefs, but rather to reconstruct the presuppositions of argumentation already present in everyday practice.
The ‘most important’ of these presuppositions are as follows: inclusivity: no one who could make a relevant contribution may be prevented from participating; equal distribution of communicative freedoms: everyone has an equal opportunity to make contributions; truthfulness: the participants must mean what they say; and absence of contingent external constraints or constraints inherent to the structure of communication: the yes/no positions of participants on criticizable validity claims should be motivated only by the power of cogent reasons to convince (Habermas, 2008, p. 82).
These presuppositions impose some normative constraints on participants in justificatory discourses. However, the normativity of the constraints expressed by these presuppositions is of a different kind from that of morality, or justice. Instead, this is a ‘transcendental’ 13 normativity, which specifies the conditions of the possibility of some kind of practice. Participants in a practice must obey some rules, which are constitutive of this practice, if they want to take part in it at all. Otherwise, the practice would be destroyed.
If we look at the practice in question as the practice of public argumentation about the principles of justice, we can see why Habermas insists that his way, in contrast to Rawls’s, of operationalizing the moral point of view is free from normative assumptions. Not only are these different kinds of normativity, but they also operate at different levels. Habermas claims that the rules of argumentation are binding ‘within discourses’, but not ‘outside’ of the practice of argumentation (2008, p. 83). For example, ‘the presupposition of noncoercion refers only to the constitution of the process of argumentation itself, not to interpersonal relations outside of this practice’ (Habermas, 2008, p. 83). ‘The presupposition of noncoercion’ entails that consensus should be achieved under conditions free from coercion (understood as physical constraints or psychological manipulation) and based on the ‘force of the better argument’. However, Habermas’s claim that this presupposition refers only to the argumentation, not to interpersonal relations, means that we cannot easily transfer the rules that are applicable to one domain (the practice of argumentation) to another domain (interpersonal relations). This does not mean that similar rules, that is, rules that express similar content (e.g. lack of coercion), cannot regulate another domain.
The difference between the rules of argumentation and the rules applicable to interpersonal relations is the difference between constitutive and regulative rules (Searle, 1964, pp. 55–56). The former constitutes and regulates the practice of argumentation. We cannot take part in the argumentation if we do not follow its rules, just as we cannot play chess if we do not follow the rules of the game. The latter regulates an already given practice. If we do not obey moral rules, we can still have relationships with others. These relationships may be based on coercion, exploitation or simply put they might be unjust, but they are still relations with others. The gist of Habermas’s argument here is that even though the rules applicable to the discourse seem to have moral content, they operate within different areas of practice and perform different functions (‘constitutive’ and ‘regulative’) within them. Therefore, if we look at these rules from the perspective of their function rather than that of their content, it is not so obvious that we can directly translate one kind of rules into another.
The ‘normativity’ of the moral point of view is the normativity of the infrastructure of public argumentation in which the principles of justice, which have a proper binding, normative force on us, are being worked out by citizens. In other words, the ‘normativity’ of moral discourse about the principles of justice is at a different level from the normativity of the principles themselves. For Rawls, however, the normativity of the original position, that is, the moral point of view, is the same as the normativity of political ideals from which it is constructed.
This means that the task of the philosopher is not to substitute the practice of argumentation for philosophical reflection but to reconstruct the conditions of a joint and public practice of working out and justifying the principles of justice. Habermas’s criticism means that bracketing the pluralism of comprehensive doctrines in the original position and its subsequent reintroduction as a requirement of an overlapping consensus is the wrong way of dealing with the diversity of worldviews. They provide a substantial input into moral discourse whose outputs are universalizable principles of justice (Habermas, 1998a, pp. 42–43).
Conclusion: Democratic politics is not applied morality
So far, I have focused on moral discourse and the principles of justice. Habermas criticizes the way in which Rawls conceptualizes the moral point of view, but he is also critical of how Rawls conceives of democratic politics. The principles of justice, for Rawls, provide a normative foundation for democratic societies. Such a view entails that there is a hierarchy between justice and democratic politics. The latter is, unsurprisingly, constrained by the requirements of justice; however, in Rawls’s philosophy, the principles of justice are worked out independently of, and prior to, the conceptualization of democratic politics. As such, we can say that the principles of justice are imposed on democratic politics from the outside. This is because, as Habermas claims, Rawls considers democratic politics primarily from the moral point of view, so it escapes his attention that it is being realized through the medium of law.
Habermas clearly differentiates between moral and legal norms and between, respectively, the moral principle, or the principle of universalization (U), on the one hand, and the democratic principle, on the other. These two spheres – that of morality and that of politics and law – which have gone through the process of differentiation in modernity (henceforth, when I speak about law, morality and so on, I have in mind modern law, modern morality and so on), are autonomous. It is important here that law is not derived from morality, but they are worked out and justified independently from each other. However, both the moral principle and the democratic principle are derived from the same principle, the so-called discourse principle (D). This is the fundamental, abstract and general principle of validity of action norms (both moral and legal), which lays down the condition of justification under conditions of postmetaphysical thinking where the justification cannot be founded in the objective order of reality, but in a social practice of argumentation and communication.
The discourse principle (D) holds that ‘just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses’ (Habermas, 1996, p. 107). There are here two terms which must be specified: ‘action norms’ and ‘rational discourses’. As we have already noted, Habermas distinguishes between two kinds of norms that govern human action and interactions: namely moral and legal norms. Respectively, there are two kinds of rational discourses whose nature is captured by the moral and democratic principle.
If we combine the discourse principle (D) with the moral requirements of universality and impartiality, we get the moral principle. This principle states that ‘A norm is valid when the foreseeable consequences and side effects of its general observance for the interest and value-orientations of each individual could be jointly accepted by all concerned without coercion’ (Habermas, 1998a, p. 42). If we combine the discourse principle with the ‘form of law’, namely when we think of action norms as embedded in legal forms, we get the democratic principle, which says that ‘only those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted’ (Habermas, 1996, p. 110).
Both morality and law regulate interpersonal relations and adjudicate between conflicting claims, yet they do so in different ways. Morality deals with our inner, properly determined attitudes towards others, and as such it is based on a specific kind of motivation, for example, on a sense of duty or respect for others. From the perspective of law, it is only important that ‘external relations of one person to another’ (Habermas, 1996, p. 105) are in conformity with law. This conformity is backed by the threat of sanctions, while the motivational force of morality is weaker. Morality requires a great deal more effort on the part of a subject to act morally than to act legally. She has to internalize ‘a form of cultural knowledge’, apply this knowledge to a particular situation and act on it. Law relieves this burden imposed on acting individuals. It does not require such a sophisticated kind of motivation and reasoning to act on it.
The coercive aspect of law points to a relation between law and the state, which guarantees that the law is obeyed. However, law is not only backed by the state; it is also created by the state. There is, therefore, an inner relation between law and politics. The process of opinion- and will-formation which results in law must be, at the same time, legally institutionalized and protected, because an appropriate structuring of the exercising of political will lends legitimacy to law (Habermas, 2008, pp. 91–92). This means that, for example, equal political rights, or in Rawlsian terms ‘the liberties of the ancients’, must be granted. These rights create a space for political engagement and protect it.
14
And here we can see how Habermas solves the puzzle of reconciling ‘public’ and ‘private’ autonomy or ‘the liberties of the ancients’ and ‘the liberties of the moderns’. These two kinds of autonomy presuppose one another: [T]here can be no law at all without actionable subjective liberties that guarantee the private autonomy of individual legal subjects; and no legitimate law without democratic law making by citizens in common who, as free and equal, are entitled to participate in this process. (Habermas, 1995, p. 130)
This has political consequences as well, for it seems to negate the core of democratic politics, namely the principle of democratic self-determination. The principles of justice, which are envisaged in philosophical reflection, gradually become institutionalized through real political processes like constitutional politics, the enacting of laws and statutes or everyday politics. However, these principles are constraints externally imposed on the democratic process. Even if, as Rawls claims, the voice of a philosopher is but one among many citizens’ voices, the theory of justice, so Habermas’s critique goes, excludes citizens from jointly working out the terms of their cooperation and solving the problems they face.
The split between law and morality does not mean that law cannot have moral content. First of all, it means that law and morality are different normative systems. The difference here lies in the way of justification, which is a consequence of their functions. Both law and morality must be justified in a postmetaphysical way or taking into account the fact of pluralism. This is captured by the discourse principle (D). However, the task of morality is to discern what is in the equal interest of all (members of the human community). This is captured by the principle of universalization (U). The task of law is to organize, or more precisely to structure, the social life of a given community in all its aspects (cultural, economic and so on). In that sense, unlike morality, which confines itself to just relations between individuals, law extends itself to all aspects of social life. The wider scope of politics explains why the democratic principle is more inclusive than the moral one in terms of reasons which are appropriate in respective kinds of discourses. The democratic principle admits different kinds of reasons, not just moral, but also ethical, pragmatic and so on.
Democratic politics has its roots in the history and reality of a concrete community as it tries to express that community’s self-understanding and to advance its particular interests. At the same time, however, democratic politics transcends the boundaries of the concrete community as it is constrained by moral requirements and happens to embody moral imperatives. It is important here to try to fully grasp what Habermas has in mind when he differentiates between law and morality and, at the same time, restricts law with morality in some way. A kind of priority that morality has over law does not mean that law is worked out of or grounded in morality; rather it means that moral imperatives are overriding. The legitimacy of law depends on the discursive procedure of lawmaking, not on its conformity with morality. That said, politics and law which are clearly against morality are not only unjust, but also illegitimate.
Both Rawls and Habermas try to account for the autonomy of politics. According to Rawls, the specificity of democratic politics is given by a specific subject (a basic structure of society) and a political way of justification. However, as Habermas claims, Rawls does not clearly differentiate between ways of postmetaphysical justification, or justifications under the conditions of pluralism, as expressed by the discourse principle (D). As a consequence, Rawls models his conception of political justice on morality (in Habermas’s sense). Therefore, he grounds law and politics in justice (morality) and preserves the hierarchy between them. In other words, Rawls does not go deep enough to uncover the normative ground of democracy.
Many problems we face today seem to be unresolvable in political terms as Rawls understood them. Some such problems are global in scope, such as climate change and environmental justice, which require articulating universalizable interests and where there seems to be a lack of a common ground on which the challenges could be met. Yet this common ground must be worked out. Other problems, such as the rise of populism, raise serious doubts as to the possibility of an overlapping consensus. In other words, there is no political, in the Rawlsian sense, vocabulary with which to articulate the conception of justice. There are communicative powers of the citizenry, which, of course, are under threat today, but such powers should not operate under any philosophical illusions as to the prior existence of substantial consensus on normative assumptions.
According to Habermas, the weakness of Rawls’s normative project lies in (1) a faulty conceptualization of the moral point of view, which results in blurring the distinction between justification and acceptance, and a reversal of the relation between the public and the private; and (2) a kind of reduction of democratic politics to questions of justice. Democratic politics is not, Habermas argues, applied morality, but rather constitutes its own sphere of validity claims, distinct from, but at the same time related to, justice.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
