Like Chris, I spent the morning puzzling over Cohen’s recent article in Philosophy and Public Affairs. Although I don’t necessarily disagree with his conclusion, I don’t think the argument is strong. But I don’t want to discuss the substance of his argument – for helpful discussions, see Chris here and here, Brian here, Larry Solum here, and Matt Yglesias here. Instead, I want to argue that his stalking horse throughout the essay, John Rawls, simply does not hold the view that he criticizes. Cohen is wrong when he says that (among the several examples he mentions) “Rawls alone clearly affirms what I deny.”
As Chris points out, the position that Cohen criticizes is not naturalism but constructivism. Constructivists hold, Cohen says, that “principles that comprise x gain their validity through being the output of a privileged selection procedure.” Rawls is a constructivist in this sense, since he famously argues that the principles of justice can be seen as the result of a choice in the original position. As far as I can tell, however, Cohen has no objection to constructivism understood in this sense. But then he continues: constructivists believe that “all sound principles are, as I shall say, fact-sensitive, by which I mean neither more nor less than that facts form at least part of the grounds for affirming them.” (p.213) I don’t see why constructivists must say this, but this is the position to which he objects.
There are several places where Rawls apparently says just this kind of thing. For example, he writes: “Conceptions of justice must be justified by the condition of our life as we know it or not at all.” (TJ, p.454/398) Cohen then comments: “and he does not thereby mean to leave room for the affirmation of principles more ultimate than those of justice which do not depend on such conditions for their justification.”
But I don’t see why he doesn’t leave that room. What does Rawls say that closes off the possible appeal to further principles that themselves do not depend on facts, but which, together with facts, generate the principles of justice? In the specific passage quoted above, he means to be ruling out two possibilities. First, he is rejecting principles that violate his “publicity requirement” (such as Plato’s Noble Lie). Second, he is rejecting principles that depend on theological assumptions of an afterlife that will correct injustices of this world. His point has nothing to do with whether the principles can be grounded on the facts together with some non-factual principles.
At various points, Rawls also says things like this: the difference principle “relies on the idea that in a competitive economy … with an open class system excessive inequalities will not be the rule.” (TJ, p.158/137) Cohen rightly points out that “if he appraised the facts differently, he would [well, he might] reject the difference principle, because it permitted too much inequality.” Cohen concludes that “there is an unarticulated background principle of equality….” He’s right, but it’s not unarticulated, it’s perfectly explicit.
Rawls never denies that there are normative considerations that support the principles of justice and I don’t see that he ever takes a stand on whether these considerations are fact-dependent or not. As Cohen notes, Rawls himself points out that not everything in constructivism gets constructed – the procedure itself stands in need of some kind of justification, and it is not itself the outcome of a procedure. For Rawls, this further justification is ultimately provided by a reasonable comprehensive doctrine. In other words, the construction of the original position can be embedded as a module within different reasonable comprehensive doctrines, which themselves provide the ultimate grounding for the principles. It is up to these comprehensive doctrines, rather than political liberalism itself, to say how its ultimate principles are to be justified and whether they depend on facts.
Cohen claims that Rawls “disparages” rational intuitionism, which Cohen claims is the alternative to the view that fundamental principles of justice “are a response to the facts of the human condition.” It’s not obvious that his is how Rawls thinks of rational intuitionism, but in any event, Rawls doesn’t disparage it. On the contrary, he writes: “it is crucial for political liberalism that its constructivist conception does not contradict rational intuitionism, since constructivism tries to avoid opposing any comprehensive doctrine.” (PL, p.95) In A Theory of Justice, when he discusses intuitionism, his complaint is not that it relies on non-factual premises, but that it provides no basis – no justification of any sort – for weighing and balancing its multiple principles in one way rather than another.
Finally, Cohen seems to rest his case of Rawls on the fact that Rawls calls his principles “first principles of justice”. (Sometimes Rawls simply says “first principles” but the phrase “of justice” is implied since that is what they so clearly are.) Rawls apparently means by this that they are not derived from any other principles of justice. This does not imply that they cannot be grounded in any other normative principles (or procedures or normative models of the person or of society) which themselves may or may not be fact-dependent. In fact, the idea of a political conception of justice depends on their being able to be grounded in further normative doctrines.
Cohen’s confusion is revealed in the following (unfortunately convoluted) passage in which he initially writes of principles of justice but then simply of principles: “For Rawlsian constructivism, fundamental principles of justice, for all that they are fundamental, which is to say not derived from still more fundamental principles, reflect facts.” This is not right. Fundamental principles of justice, to be fundamental, must not be derived from still more fundamental principles of justice. They can be derived from more fundamental principles, and political liberalism assumes that they can be.
Cohen concludes that Rawls “misidentifies the question ‘What is justice?’ with the question ‘What principles should we adopt to regulate our affairs?’” He concedes that “facts undoubtedly help to decide what principles of regulation should be adopted…. But the principles that explain, with the facts, why a given set of principles is the right one to adopt do not reflect facts, and non-exposure of those more ultimate principles means failure to explain why we should adopt the principles that we should adopt.” Here, we are onto what seems to be a real disagreement between Rawls and Cohen. For Cohen, pressing to find the ultimate normative grounding for principles of justice is something like an imperative of philosophy. A person who fails to ground her principles in some fundamental principles simply does not have “a clear grasp both of what her principles are and of why she holds them.” “The question for political philosophy,” Cohen writes, “is not what we should do but what we should think, even when what we should think makes no practical difference.” Rawls doesn’t object to such an investigation, but his concern is with what we should do. Specifically, he is interested in identifying principles for use in designing the basic social institutions. Pressing to foundational principles is not always necessary for this task. And, indeed, Rawls thinks that in some cases, such as societies characterized by a diversity of religious faiths, insisting that we first identify the foundational principles may actually interfere with that practical task.