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.
{ 9 comments }
Walter 08.01.03 at 5:18 am
Here’s a naive, undergraduate question for you:
What, if anything, makes Cohen’s thesis substantively different from the claim Kant makes about the fundamental practical law as a priori? It seems to me that Cohen’s fact-dependent principles just take the place of specific maxims, with the fact-independent principle taking the place of the a priori practical law.
Jon 08.01.03 at 2:07 pm
Walter – that’s a great question about Kant. (I wish all of my “naive undergraduates” asked questions like that!) The question is especially relevant to my final paragraph, when I discuss how Cohen and Rawls conceive the purpose of philosophy. When I wrote “For Cohen, pressing to find the ultimate normative grounding for principles of justice is something like an imperative of philosophy”, I was struck by how similar that sounded to Kant. I was going to mention this, but I decided I needed to give it some more thought. I still do, but thanks for the observation, I think you’re onto something.
Thomas 08.01.03 at 4:08 pm
“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.”
Isn’t there a crucial difference between TJ and PL? I daresay Rawls believed TJ to present a comprehensive doctrine. Didn’t he indicate just that in PL?
If there is such a crucial difference, wouldn’t Cohen’s argument best be understood as an argument against Rawlsian constructivism and not, as Sollum calls it, the political constructivism of PL?
Lawrence Solum 08.01.03 at 4:12 pm
I posted yesterday on this question from a different angle in a post titled “Bertram on Cohen.” I think Jon’s points are right, and that in addition, Cohen’s argument misses an important transition between Rawls’s early Kantian constructivism and his later political constructivism–this point being the main thrust of my post.
Scott Martens 08.01.03 at 5:09 pm
Y’know, it’s probably a bad idea to join a discussion of a paper you haven’t read (no university access until Fall) by an author you’ve never heard of, criticising a philosopher you’ve only barely read, talking about a branch of philosophy you haven’t ever taken too much interest in. But then, I’ve never let a bad idea stop me before.
First of all, I would think constructivism usually denies the notion that any part of our normative principles are justified, or derive in any part, from something outside of the real conditions of life. Unless the real conditions of life have ceased to consist of facts by some definition, I should think Cohen’s claim about fact sensitivity is trivially true of constructivism.
I mean, all you have to do is believe that cognition takes place in a purely physical medium to come to the conclusion that every conclusion you come to is the result of facts about the world. Of course, you might decide that the facts about the world you have to work with are at least in part a consequence of your principles. If one were to accept such a perspective (which also usually comes under some form of constructivist label), then there can be no derivation of principles free of other principles under any circumstances.
Second, did Rawls really say that constructivism “tries to avoid opposing any comprehensive doctrine”? You’ve got a citation, so I guess he did. It’s just, well, what’s the fun in that? I mean, if you can’t oppose comprehensive doctrines, why bother with philosophy at all?
I suppose he might have a point by claiming that since rational intuitionism is just as much a philosophy rooted in the physical conditions of philosophers’ lives as, say, constructivism, it has as much claim to validity. But, this undermines the whole dynamic nature of a constructivist worldview. The constructivist argument against a comprehensive doctrine usually goes something like: My principles are constructed just like yours, but mine are better anyway because they are more responsive to the real conditions of life, here and now.
Thomas 08.01.03 at 5:27 pm
I’ve always understood Rawls’s later political constructivism to be a projected related to, but separate from, his “Kantian constructivism.” I don’t read PL as a concession that Rawls’s earlier Kantian constructivism was somehow in error or that his views on that project were other than final.
micah 08.01.03 at 5:51 pm
I’m not sure why it matters whether Cohen targets Kantian or political constructivitism. What he really cares about is the material–the intuitions and facts–that is used in constructing the decision procedure for selection of the principles of justice. But the facts and intutions used to build Rawls’s decision procedure–the original position–are essentially the same in PL. What has changed is the justification for using that material. Instead of appealing to Kantian ideas about the freedom and equality of human nature, now the account appeals to the nature of citizenship in a certain kind of society. But the argument from the original position is ostensibly the same. The description of the parties in the original position hasn’t changed. And so the argument for the two principles of justice proceeds as it did before. (What’s changed is the argument for the congruence between justice and the good–taken up in the Part Three of TJ.) If that’s right, then Cohen’s criticism still holds. It’s still true that political constructivists appeal to facts about human psychology and human society when constructing principles of justice. And this is all Cohen needs to get his argument off the ground. Perhaps the appeal to facts is defensible, and perhaps political constructivists really are formulating principles of justice–as opposed to some other kind of social principles–but I don’t see what in Cohen’s criticism is threatened by the difference between political and other fact-sensitive constructivisms.
Loren 08.02.03 at 2:54 am
on Kantian and political constructivism, and the move from TJ to PL, people might want to read Robert Taylor’s piece in the same recent issue of P&PA — not sure I agree with the concluding points, but I like the exposition of the lexical priority of basic liberties, and it speaks (albeit indirectly) to some of these concerns.
Loren 08.02.03 at 3:51 am
Micah: “I don’t see what in Cohen’s criticism is threatened by the difference between political and other … constructivisms”
This started out being a minor comment but has turned into a long and rambling mess — apologies up front.
I think I may agree that the distinction between Kantian and political constructivism doesn’t really have a bearing on Cohen’s argument about facts and principles. But I also don’t think that Cohen’s argument does the critical work against Rawls that he has planned, and summarizes at the end of his P&PA piece.
I mean, if you think that the aim of your theory of justice is to find a freestanding political conception of a just basic structure, acceptable to parties with different ultimate principles, then I’m not sure why it’s a criticism to argue that our affirmation of normative principles can ultimately be pushed back to some fact-insenstive principle that conditions our belief about the relations between facts and other normative principles. Okay, so our conception of citizens as free and equal is grounded in (fact insensitive) beliefs about autonomy, or rational agency, or divine purposes. How does this undermine the aims and strategies evident in TJ and PL?
I suppose things appear in a different light if you think, as Cohen seems to, that our principles of justice ought to be our ultimate (fact insensitive) normative commitments. Then you would think of Rawls as a something of a tinkerer with delusions of grandeur, confusing his regulatory fiddling with the true craft of political philosophy. But I worry that this may be little more than a definitional quibble about the meaning and aims of political philosophy, and not a damning critique of justice as fairness.
And if it’s a definitional quibble and/or an intradisciplinary boundary dispute, then what’s wrong with setting the intradisciplinary boundaries roughly as follows? The core concern of justice is figuring out how best to live together.
If our aim is to find a way that people can live together with very different ways of living their own lives (and thus very different ultimate moral commitments), then we may well worry that our account of justice is not exhausted, for instance, by finding ultimate fact-insensitive commitments that everyone agrees with or is compelled by reason to accept.
Finding such principles (citizens as free and equal, reasonable and rational beings, say) may not get us very far towards an answer to the question “how best to live together?”
And I’m not sure the answer is — as Cohen seems to hint in his rejoinder to Anderson and (by implication) Scheffler — to say that our account of justice must be somehow pure, tied to our ultimate normative principles, which may then be subject to some regulative compromises and tinkering. That doesn’t seem very satisfying to me. Why not try to formulate your account of justice in a more integrative way, instead of asserting some fact-insensitive principle (“justice is equality of resources”, or the like) and then tinkering with messy details after the fact? If you think that the central question of justice is “how best to live together?” then this “assertion-tinkering” model is probably not very appealing: it seems to say “we can best live together by asserting a substantive, fact-insensitive principle of justice, arguing for this principle without critically depending on claims of fact, and then seeing what we have to compromise in the real world in approximating our ideal.”
Probably this is not much more than a confused restatement some of the remarks already posted by Jon and Chris and others, but it’s Friday night and I’m lazy.
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