Rawls and Habermas

REASON, PLURALISM, AND THE CLAIMS OF POLITICAL PHILOSOPHYBy Todd Hedrick

STANFORD UNIVERSITY PRESS

Copyright © 2010 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-7077-4

Contents

Abbreviations....................................................................................ixIntroduction.....................................................................................11. Freestanding Political Philosophy and the Descriptivist Critique of Rawls.....................172. The Rawlsian Apparatus of Justification.......................................................343. Rawls between Metaphysics and Proceduralism...................................................614. Procedure and Substance, Construction and Reconstruction......................................815. Discourse Theory and the Constitutional Democratic State......................................1036. Proceduralism and Functionalism in Habermas's Theory of law and Democracy.....................1257. Rawls and the Critique of Constitutional Contractarianism.....................................1498. Habermasian Constitutional Theory.............................................................1669. Conclusion: Idealizations and Power...........................................................184Notes............................................................................................197Works Cited......................................................................................225Index............................................................................................237

Chapter One

Freestanding Political Philosophy and the Descriptivist Critique of Rawls

In this chapter, I begin by outlining the basic methodological difference between Rawls and Habermas that Rawls draws our attention to in their exchange: the difference between "freestanding" and "comprehensive" theories. Rawls charges Habermas with being a comprehensive theorist, which implies that he is vulnerable to the same objection that Rawls levels against predecessors like Kant and mill. Habermas bases his theory of constitutional democracy on a "deep" account of the sources of normativity, using his theory of communicative rationality to locate it in the idealizations that he argues are presupposed and tacitly accepted by all participants in linguistically mediated communication aimed at mutual understanding. This "comprehensive" theoretical edifice, Rawls contends, puts Habermas in the company of Kant and mill, who base their accounts of liberalism on the values of autonomy and individualism, respectively. All three represent ways of justifying liberalism or constitutional democracy that are inherently controversial. It is possible that one of these accounts is true, and all three represent ways in which reasonable individuals might, for their own part, understand liberal principles to be justified. But a liberal society cannot expect a consensus on basic values, and so Habermas's theory cannot form a public basis for social cooperation and reciprocal justification-the task that Rawls insists is the central task for political philosophy-any more than Kant or mill can. After laying out this argument, I turn to explore some of the possible negative consequences of this "political turn," elaborating a broad critique of Rawls that I will be calling the descriptivist critique. The next two chapters are, then, largely concerned with trying to understand the extent to which the descriptivist critique is true.

1. FREESTANDING AND COMPREHENSIVE THEORIES

Rawls and Habermas follow the social contract tradition in western political thought in their focus on issues of justification. And a cursory glance at the content of the 1995 Rawls-Habermas exchange shows that the really pivotal differences between them circle around questions of justification. Both philosophers can be read as articulating what I will be calling frameworks of justification. Frameworks of justification are sets of principles, norms, criteria, or values that have a dual function: (a) they may be used to assess the legitimacy of the products of the lawmaking process, and (b) citizens may use the framework to offer justifications to their fellow citizens for their proposed uses of political power. There is, then, an active and a passive sense in which justification takes place through a framework of justification. On the one hand, Rawls and Habermas hold that a framework ought potentially to enable citizens to understand the laws whose coercive power they are subject to as legitimate (passive)-that is, if our laws are somehow made within the recommended normative framework, we should be able to see ourselves as having good reason to follow them. This point is clearly captured by Rawls's "principle of liberal legitimacy":

[O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in light of principles and ideals acceptable to their common human reason. (Pl, 137)

On the other hand, a framework of justification should be something that citizens can use (active) in order to justify themselves-their votes, policy preferences, exercises of political power, and so forth-to their fellow citizens, in terms that their fellow citizens can (or, at any rate, ought to) accept, so that their politically mediated relations to one another are transparent and mutual. This, for Rawls, is what the practice of public reason promises to do.

In this context, the most obvious difference between Rawls and Habermas is that they propose different kinds of frameworks of justification: for Rawls, a framework of justification consists in the political conception of justice. He argues that a well-ordered society would be one in which citizens understand that the basic terms of social cooperation are set by a conception of justice that they all accept. The conception of justice that Rawls proposes for this purpose is "justice as fairness," which, of course, consists in a first principle guarantying a maximal scheme of equal basic liberties for all, and a second principle securing fair equality of opportunity, and that regulates inequalities such that they are justified only to the extent that they are to the advantage of society's least advantaged (the difference principle) (JF, 42-50). Habermas's framework of justification, on the other hand, is what he calls "the system of rights," which will be discussed in later chapters. we need to examine the issue of how Rawls and Habermas conceive of a framework of justification being justified to those that are to use them (that is, us) and be subject to political power exercised through them, and this returns us to questions about the conception of reason most appropriate to political philosophy.

In his reply to Habermas, Rawls clearly delineates these two issues (which type of framework? how do we justify a framework?) and makes it clear that, in his view, the latter is of greater significance. He draws two pivotal distinctions between Habermas's theory and his own (R, 373). First, and most important, he says that Habermas's theory is a "comprehensive doctrine," whereas his is "freestanding" or merely "political." So, Habermas's theory is alleged to depend on a comprehensive doctrine, along with all of the baggage that such a thing entails, whereas Rawls claims that his theory...