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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
- Veröffentlichungsjahr: 2024
All human beings are born with equal dignity and possess equal rights. This statement appears normatively just as irrefutable as it is empirically refuted every day. But what are the grounds of this principle, and how should we think about its realization? Its philosophical truth can best be explained by going back to (and beyond) Kant's notion of a 'noumenal republic' in which every person is an equal co-author of the laws that bind all. At the same time, a critical analysis of society and politics must show the extent to which the reality of power and ideology makes a mockery of this constructivist conception of dignity. To bridge the gap between unworldly idealism and practical hopelessness, we need a critical theory after Kant. Rainer Forst, one of the world's most influential political philosophers, works to develop just such a theory in this powerful and illuminating volume. It contains no less than a new systematic account of concepts such as alienation, progress and regression, solidarity, human rights, justice, power and non-domination.
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Table of Contents
Cover
Title Page
Copyright Page
Preface
Sources
Introduction: Between Two Worlds: Critical Constructivism After Kant
1 The idea of Kantian constructivism
2 Discussion contexts and outline of the argument
Notes
I. Autonomy, Progress and Solidarity: Basic Questions of Social Philosophy
1. Noumenal Alienation: Rousseau, Kant and Marx on the Dialectics of Self-Determination
1.1 Alienation and the inalienable
1.2 Rousseau: Overcoming individual alienation through political
aliénation totale
1.3 Kantian alienation: On (not) being a normative authority
1.4 Marxian alienation: Instrumentalization and lack of control
1.5 Conclusion
Notes
2. The Justification of Progress and the Progress of Justification
2.1 The dialectics of progress
2.2 Moral–political progress
2.3 Self-determined progress
2.4 Emancipation, reverse orientalism and foundationalism
2.5 Subaltern reason and the critique of historicism
2.6 The right to reason
Notes
3. The Rule of Unreason: Analyzing (Anti-)Democratic Regression
3.1 The crisis of democracy and the concept of regression
3.2 Status quo (ante) fallacy
3.3 The conceptual reduction of democracy
3.4 Misclassified critiques of democracy
3.5 Crises and the paradox of democratic regression
Notes
4. Solidarity: Concept, Conceptions and Contexts
4.1 A contested and elusive concept
4.2 The concept of solidarity
4.3 Normative dependency
4.4 Normative contexts and conceptions of solidarity
4.4.1 Ethical contexts
4.4.2 Legal contexts
4.4.3 Political contexts
4.4.4 Moral contexts
4.5 Conclusion
Notes
5. Social Cohesion: On the Analysis of a Difficult Concept
5.1 Booms of cohesion
5.2 A neutral core definition
5.3 Tolerance, solidarity and cohesion
5.4 Justification narratives and justice
5.5 Social projects and crises
Notes
II. Justice, Rights and Non-Domination in a New Key: Critical Political Theory
6. Normativity and Reality: Toward a Critical and Realistic Theory of Politics
6.1 Plato’s paradox
6.2 The loss of a shared language in political science
6.3 Justification as a mediating term
6.4 The power of justifications
6.5 Narratives, structures and reality
6.6 A realistic normative view
6.7 A strong normative program
6.8 Critical Theory
6.9 Inside and outside the cave
Notes
7. The Point and Ground of Human Rights: A Kantian Constructivist View
7.1 How to think about human rights
7.2 The point of human rights
7.3 The ground of human rights
7.4 Constructing human rights
Notes
8. A Critical Theory of Transnational (In-)Justice: Realistic in the Right Way
8.1 Critical realism
8.2 Avoiding parochialism and cultural positivism
8.3 Avoiding practice positivism
8.4 A reflexive and discursive conception of justice
8.5 Struggles for justice and the problem of universality
8.6 Contexts of (in-)justice
8.7 The nature of injustice
8.8 Constructing transnational justice
Notes
9. Structural Injustice with a Name, Structural Domination without a Face?
9.1 An antinomy
9.2 (In-)justice
9.3 Power, rule and domination
9.4 The faces of structural domination
Notes
10. Kantian Republicanism versus the Neo-Republican Machine: The Meaning and Practice of Political Autonomy
10.1 Normative authority
10.2 Moral groundwork
10.3 The right to justification in political and legal contexts
10.4 Two conceptions of non-domination and the neo-republican machine
10.5 Republicanism and recognition
Notes
III. Debates: Political Liberalism, Luck Egalitarianism, Contractualism and Discourse Ethics
11. Political Liberalism: A Kantian View
11.1 The familiar interpretation of
Political Liberalism
11.2 The problem of political liberalism
11.3 Kantian constructivism in
Political Liberalism
11.4 The impossibility of a practice-dependent hermeneutics
11.5 Toleration and reason
11.6 Relating the political conception and comprehensive doctrines in the right way
11.7 Ambiguities
Notes
12. The Point of Justice: On the Paradigmatic Incompatibility Between Rawlsian “Justice as Fairness” and Luck Egalitarianism
12.1 The impossibility of overcoming moral arbitrariness in a morally arbitrary way
12.1.1 Against pre-social considerations of (in-)justice
12.1.2 Choice or circumstance?
12.1.3 A dystopia of control
12.1.4 Procedural distributive justice
12.2 Two paradigms of justice
12.2.1 Agents vs. recipients of justice
12.2.2 Justice as justification
12.2.3 Constructive autonomy
12.2.4 Going further
Notes
13. Justification Fundamentalism: A Discourse-Theoretical Interpretation of Scanlon’s Contractualism
13.1 Moral justification
13.2 Political justification
Notes
14. The Autonomy of Autonomy: On Jürgen Habermas’s
Auch eine Geschichte der Philosophie
14.1 Redemptive translation
14.2 Moral autonomy and the autonomy of morality
14.3 Moral “encouragement” after Kierkegaard and the Young Hegelians
Notes
Bibliography
Index
End User License Agreement
Guide
Cover
Table of Contents
Begin Reading
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The Noumenal Republic
Critical Constructivism After Kant
Rainer Forst
polity
Copyright Page
First published in German as Die noumenale Republik by Suhrkamp © Rainer Forst 2021
This English edition © Rainer Forst 2024
The right of Rainer Forst to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2024 by Polity Press
Polity Press
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Cambridge CB2 1UR, UK
Polity Press
111 River Street
Hoboken, NJ 07030, USA
All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
ISBN-13: 978-1-5095-6225-1 <hardback>
ISBN-13: 978-1-5095-6226-8 <paperback>
A catalogue record for this book is available from the British Library.
Library of Congress Control Number: 2023945920
by Fakenham Prepress Solutions, Fakenham, Norfolk NR21 8NL
The publisher has used its best endeavors to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate.
Every effort has been made to trace all copyright holders, but if any have been overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.
For further information on Polity, visit our website: politybooks.com
PREFACE
Human beings have the ability to transcend their reality. In the normal course of their lives and actions, they question whether this course can be improved and whether it is generally going in the right direction. The same is true of the orders to which they belong. Wherever people seek orientation, engage in criticism or strive for progress, the counterfactual appears in the factual, what ought to be in what is. In this book I try to explain how this transcending power should be understood. Taking Kant as my starting point, I argue that, as rational, justifying beings, we can go beyond the habitual normativity of the spaces of justification in which we operate by appeal to a critical normativity whose radical core points to the principle of self-legislation, in the individual and the collective sense. A critical-constructivist theory with a practical intent, as I develop it in the following, must answer the question of how we can actually become what we already are in a “noumenal” sense, namely autonomous authorities with respect to the norms that claim to be valid for us.
No one thinks for him- or herself alone, certainly not a theorist of justification. So, at this point I must express my gratitude for the many stimuli I have received through talks, lectures, conferences and feedback (not least through the privilege of numerous workshops devoted to my theory). To try to name everyone who deserves consideration in this regard would lead to an interminable list. Here, therefore, I will mention the most important institutions and individuals who provide the framework for my work; others will be acknowledged in the introduction and at the beginning of the relevant chapters. In the first place, I would like to thank the members of my research colloquium, which has existed since 2004 and which for several years I have been running with Darrel Moellendorf. The discussions conducted in the colloquium with internationally established as well as with younger colleagues are a constant source of learning. For many years, the context for the colloquium has been provided by the interdisciplinary Research Center “Normative Orders,” the Centre for Advanced Studies “Justitia Amplificata” (and the successor program “Justitia”) and the Leibniz Award research group “Transnational Justice,” as well as by more recent networks such as the “Research Institute Social Cohesion” and the initiative “ConTrust – Trust in Conflict.” For this, I would like to thank not only the funding institutions – the German Research Foundation, the Alfons und Gertrud Kassel-Stiftung, the Federal Ministry of Education and Research, the State of Hesse and Goethe University Frankfurt – but also the colleagues with whom I currently lead, or in the past led, these major undertakings, Nicole Deitelhoff, Klaus Günther and Stefan Gosepath.
In addition, I benefited from numerous discussions at the Berlin Social Science Center, where I hold a research professorship; in this context, I owe special thanks to Michael Zürn. In the fall of 2019, I had the honor of being part of the University of Michigan Law School as a Thomas E. Sunderland Faculty Fellow and Visiting Professor, where I had many productive encounters; for that, my special thanks go to Daniel Halberstam. The same holds for short-term visiting professorships at Rice University in Houston and at the University of Washington in Seattle, for which I am grateful to Christian Emden and the late Bill Talbott.
In preparing the manuscript, Sonja Sickert provided as always major assistance, and I would not have been able to accomplish it without the excellent work of Aline Fehr, Felix Kämper, Greta Kolbe, Carlos Morado, Jan Paul Reimann, and Amadeus Ulrich. I would also like to thank Ian Malcolm from Polity for his trusting collaboration and also Ellen MacDonald-Kramer, Rachel Moore and Susan Beer for their help in publishing this book. As always, Ciaran Cronin’s translation skills were of great value in clarifying my ideas.
When expressing my gratitude for the happy moments of cooperation that sustain my efforts, I am particularly concerned to mention three colleagues who are no longer with us and whose absence I feel acutely. The untimely deaths of two longtime friends and outstanding colleagues, Glen Newey (1961–2017) and Rainer Schmalz-Bruns (1954–2020), with whom I often engaged in passionate debates, opened up an irreparable breach in the networks of discourse that are important for me. With Karl-Otto Apel (1922–2017), one of my revered teachers from early student days onward has passed away. I remember him with immense gratitude for how he embodied and communicated his enthusiasm for the “ultimate” questions of philosophy.
As always, the greatest debt of gratitude is to my family, Mechthild, Sophie and Jonathan, for inspiration, support and much besides.
SOURCES
Chapter 1: “Noumenal Alienation: Rousseau, Kant and Marx on the Dialectics of Self-Determination.” Kantian Review 22:4, 2017: 523–551.
Chapter 2: “The Justification of Progress and the Progress of Justification.” In A. Allen and E. Mendieta (eds.), Justification and Emancipation: The Critical Theory of Rainer Forst. University Park: The Pennsylvania State University Press, 2019, pp. 17–37.
Chapter 3: “The Rule of Unreason: Analyzing (Anti-)Democratic Regression.” Constellations 30:3, 2023: 217–224.
Chapter 4: “Solidarity: Concept, Conceptions and Contexts.” In A. Sangiovanni and J. Viehoff (eds.), The Virtue of Solidarity. Oxford: Oxford University Press, forthcoming.
Chapter 5: Social Cohesion: On the Analysis of a Difficult Concept. Unpublished in English.
Chapter 6: “Normativity and Reality: Toward a Critical and Realistic Theory of Politics.” In S. Eich, A. Jurkevics, N. Nathwani and N. Siegel (eds.), Another Universalism: Seyla Benhabib and the Future of Critical Theory. New York: Columbia University Press, 2023, pp. 36–50.
Chapter 7: “The Point and Ground of Human Rights: A Kantian Constructivist View.” In D. Held and P. Maffettone (eds.), Global Political Theory. Cambridge: Polity, 2016, pp. 22–39.
Chapter 8: “A Critical Theory of Transnational (In-)Justice: Realistic in the Right Way.” In T. Brooks (ed.), The Oxford Handbook of Global Justice. Oxford: Oxford University Press, 2020, pp. 451–472.
Chapter 9: Structural Injustice with a Name, Structural Domination without a Face? Unpublished in English.
Chapter 10: “Kantian Republicanism versus the Neo-Republican Machine: The Meaning and Practice of Political Autonomy.” In J. Christ, K. Lepold, D. Loick and T. Stahl (eds.), Debating Critical Theory: Engagements with Axel Honneth. Lanham: Rowman & Littlefield, 2020, pp. 17–34.
Chapter 11: “Political Liberalism: A Kantian View.” Ethics 128:1, 2017: 123–144.
Chapter 12: “The Point of Justice: On the Paradigmatic Incompatibility between Rawlsian ‘Justice as Fairness’ and Luck Egalitarianism.” In J. Mandle and S. Roberts-Cady (eds.), John Rawls: Debating the Major Questions. New York: Oxford University Press, 2020, pp. 148–160.
Chapter 13: “Justification Fundamentalism: A Discourse-Theoretical Interpretation of Scanlon’s Contractualism.” In M. Stepanians and M. Frauchiger (eds.), Reason, Justification, and Contractualism: Themes from Scanlon. Berlin: De Gruyter, 2021, pp. 45–58.
Chapter 14: “The Autonomy of Autonomy: On Jürgen Habermas’s Auch eine Geschichte der Philosophie.” Constellations 28:1, 2021: 17–24.
The articles have been slightly edited for the present volume. Permission to reprint these texts is gratefully acknowledged.
INTRODUCTIONBetween Two Worlds: Critical Constructivism After Kant
Reason thus refers every maxim of the will as universally legislating to every other will [...], and it does so not for the sake of any other practical motivating ground or future advantage, but from the idea of the dignity of a rational being that obeys no law other than that which at the same time it itself gives.1
Now in this way a world of rational beings (mundus intelligibilis) as a kingdom of ends is possible, and possible through their own legislation of all persons as members.2
The idea of a constitution in harmony with the natural right of human beings, one namely in which the citizens obedient to the law, besides being united, ought also to be legislative, lies at the basis of all political forms; and the body politic which, conceived in conformity to it by virtue of pure concepts of reason, signifies a Platonic ideal (respublica noumenon), is not an empty figment of the brain, but rather the eternal norm for all civil organization in general, and averts all war.3
1 The idea of Kantian constructivism
Kant’s words seem to lead us into the depths (or shallows) of his metaphysics of two worlds – the one intellectual–noumenal, the other empirical – and thus to land us in all of the problems associated with this dualism. Far from wishing to trivialize these problems, I want to propose a different perspective on these questions after Kant, or rather two such perspectives: according to the first, there is a sense in which we cannot escape such dualisms in our moral and political practice; according to the second, this dualism loses the appearance of an aporetic metaphysical problem once we understand the world we live in in the correct pragmatist sense, that is, reasonably.
Let me begin with the first of these perspectives. Anyone who takes seriously the statements to be found in human rights declarations to the effect that “All human beings are born free and equal in dignity and rights” (Article 1 of the Universal Declaration of Human Rights of 1948) and that this dignity is “inviolable” (Article 1[1] of the German Basic Law of 1949), rather than dismissing them as ideological or utopian platitudes, must be able to explain the sense in which these propositions are true. They do not describe the empirical reality, since it is simply not true that all people are born in equal, inviolable dignity and with equal rights – rather, many of them grow up in conditions of extreme inequality, dependency and ignominy, from which they can hardly escape. This analysis is factually true. But can both truths hold simultaneously – that of the normative statement and that of the social reality? They must, for otherwise we could not adopt a justified critical stance on reality – and we might even be betraying those whose human rights are trampled underfoot.
The philosophical discussion about how such counterfactual normative statements can be justified is indeed interminable; but that they require a justification seems indisputable. This provides the point of departure for my interpretation and further development of Kant. When we raise the question of a justification for the normative status of dignity, it may be helpful to reflect on ourselves as the beings who pose this question and who owe each other an answer. For we not only ask for reasons, but also use, evaluate and justify reasons. And, where we must acknowledge that there are no good reasons for denying others equal respect, we show ourselves and them respect as justifying beings, as equal normative authorities who owe each other good reasons for how they treat one another and for the normative order to which they are subject. Then the status of equal dignity is not justified based on an empirical proof or a divine norm, which would in any case be impossible, but through rational recognition of ourselves and others as justifying beings, as authorities in the space of justifications who form a community of justification.4 In Kant’s terms, this implies the mutual respect of persons as self-determined purposive ends in themselves, as legislating members in the “kingdom of ends,” a status that constitutes their “worthiness” (Würdigkeit).5 Is there any better justification of this dignity than being an autonomous member of the “law-giving” community regarding the norms that should apply to all?6 That this reflection, specifically in virtue of the emphasis it places on the equal status of being a lawmaking member in the space of justifications, is unavoidably a form of moral reflection Kant explains by the fact that, as justifying beings who ask the practical question “What should I do?,” we are already operating as responsible subjects in the space of practical reason. Here there is no escape, for our world is the world of justifications. However, we are not simply subject to it, but should understand ourselves in it – and this is Kant’s revolutionary insight – in a counterfactual sense as legislative authorities.7
Turning now to the second perspective: What kind of world is this, the world of justifications? Let us assume in a realistic, pragmatic spirit that our world of action is indeed a world of justifications that guide our thought and action. Then these are, first of all, de facto valid justifications that can be quite diverse in nature: conventional, instrumental, religious, legal, well or poorly considered, blinded by ideology, and so on. This is in fact the empirical–noumenal substance, so to speak, from which we draw the justificatory material for our action; the normative orders within which we operate are, in this factual sense, “orders of justification.” But, if we understand ourselves as beings endowed with practical reason, it is not only a matter of acting rationally and prudently in these already established justificatory spaces. We can also ask whether they are reasonable, and this includes asking whether they are morally reasonable – that is, justifiable on moral grounds. In every human practice, however congealed it may be with ideology (where “ideology” means justifying the unjustifiable), one always has the possibility, even if only slight, of asking: Are these norms, customs and traditions, these laws and ordinances, this ruling order as a whole, justified? In accordance with which criteria should this be evaluated?
Where this critical question arises, it may be stifled de facto in the space of noumenal power. However, it can be raised over and over again, and morally speaking it must be raised for the sake of the justifiability of our actions and of the structures that guide and bind us. To rise above the existing space of justifications, perhaps initially to a limited and subsequently a greater extent, is part of the human practice of justification when this is not completely obstructed, which means that humans, as participants in this practice, are potentially noumenal beings who transcend the reality they encounter. Kant’s reflection on humans as legislating beings who enjoy equal status in the realm of ends, and are obliged to offer each other reasons that are uniformly generalizable, is in my view the appropriate reflection on our situation as justifying, transcending beings in this sense. We belong to the factual world of justifications, but we are also members of a realm of critical problematization and of mutual respect that binds us here and now and places a duty on us to offer justifications in moral or political contexts. The kingdom of ends – properly understood – is of this world. We must not succumb to the misconception that we are members of two strictly separate worlds, nor to ontological or metaphysical dualism, but must recognize that we would not be able to orient ourselves reasonably in this one world if we could not question and transcend the given justifications. In other words, the counterfactual question concerning better justifications is part of the facticity of our normative world of justification. The worlds in question, the noumenal and the empirical, are therefore not really two separate worlds, but two different perspectives on ourselves as subjects of justification. Thus, the counterfactual, transcending-noumenal normativity of self-determined legislation appears within the de facto normativity of our empirical–noumenal spaces of justification – as a prefiguration of genuine individual and collective autonomy.
What does asking for reasons in this transcending sense involve and what kind of validity can the corresponding answers claim? This is where what I call “critical constructivism after Kant” comes into play and, since I discuss this in previous works8 and in the chapters in this volume, I will confine myself here to the main lines of argument. If we formulate the question concerning the reason-giving transcending of given justifications in transcendental terms, then it concerns the conditions of the possibility of justifying valid norms of responsible action (or of political rule). Evidently, this transcendental reflection does not detach itself from human practice so much that it loses its connection to the latter; rather, the question of justification is as much an imminent as a transcending one. It refers to the faculty that is the sole faculty of critical justification – namely, reason. In practical contexts, this means practical reason, which on a Kantian understanding is not just a faculty with knowledge of how moral norms can be justified, but one which also knows and recognizes that responsible individuals in moral contexts must justify themselves by appeal to appropriate reasons. In moral contexts, therefore, there is an imperative to justify that is recognized by practical reason, and I express this in terms of a moral duty or a moral right to justification in contexts involving generally and reciprocally binding norms.
In order to determine what constitutes an appropriate justification of such norms, we reconstruct the validity claims they raise and ask what it would mean to redeem them.9 In moral contexts, norms claim to be reciprocally and generally valid in the strict sense. This means that they must be redeemable in justificatory discourses in which the criteria of reciprocity and generality hold sway regarding the procedure itself (who may participate? how are the criteria of validity to be applied?) and the quality of the justified norms (are they reciprocally and generally rejectable?). In political contexts in which, for example, basic norms of justice are at stake, the same criteria apply, although we must distinguish between a core moral content and a specific form of organization of an order of justification, as well as between basic norms of justice and further norms legitimated on this basis. In both the moral context and that of political–social justice, the distinction between factual and counterfactual discourses must be taken into account and, at the same time, their immanent, dialectical connection must be recognized: While the counterfactual question of whether a norm is really (reciprocally and generally) justified must always remain present in both contexts, both are also concerned with conducting real discourses of justification. The reason for this, in moral contexts, is that respect for others as equal normative authorities requires taking their perspective seriously and, in political contexts, that the practice of reciprocal–general justification is the practice of justice. All other relevant normative notions of freedom, equality, democracy or human rights must be justified on this basis, as I try to show in the chapters comprising Part II of this book.
Why do I speak of “constructivism” in this context? Here we should extricate ourselves from some overhasty metaethical and metaphysical assumptions. The idea that valid norms are the result of a justification procedure that heeds certain criteria of reason, so that norms are “constructed,” should not be understood in the sense of metaphysical constructivism; what is meant is rather practical constructivism, according to which values and normative reasons do not belong to a higher-order reality but are instead constructed practically, and thus are brought into being for us. Whether such moral norms and the reasons for them are discovered or created together in reciprocal–general justification procedures is a philosophically interesting question,10 but a secondary one when it comes to the validity of the procedure. More important is who constructs what in the process, and on what basis, and how the validity of these norms is justified – namely, in the constructivist sense, through the procedure alone.11 The idea underlying Kantian constructivism can be expressed as follows: Those norms are valid that emerge from a justificatory construction procedure that contains the decisive normative conditions of norm generation in an appropriate way.12
This formulation clarifies what is often overlooked in theories and in critiques of constructivism.13 For even the discursive–factual, and not just the counterfactual–hypothetical, generation of norms can only succeed if the authoritative, fundamental normativity is already contained in the procedure that is supposed to lend validity to the constructed norms. The relevant principle here I call the principle of the conservation and production of normativity; it says that a procedure can only generate binding normativity if there is a basic normativity that grounds the procedure and is operative in it.14 It follows that any construction of norms must rest on a basis that cannot be constructed in the same way as the constructed norms, because the process must ensure that the latter have been constructed in the right way. This is why, in Kant, there is a categorical imperative of practical reason that serves to justify categorically valid moral imperatives and why, in discourse ethics, there are principles from which the formal features of discourse are derived or, in Rawls, an “original position” in which principles of justice are constructed. In my approach, constructivism means that the principle of justification, which specifies, depending on context, which norms are to be constructively justified in which way, must not only be normatively binding (as in Kant, and in discourse ethics, albeit in an ambivalent sense),15 but also that it cannot itself be constructed, but has a reconstructive character. The underlying normativity of this principle grounds the normativity of the (justified) norms constructed on this basis.
Rawls expressed this with exemplary clarity in his pioneering interpretation of Kantian constructivism. According to Rawls, Kant’s categorical imperative is not constructed but “laid out” as a procedure16 based on a reflection of practical reason as it appears in moral deliberation and judgment. This is why Kant refuses to deduce the principle of morality itself from another principle; according to Kant, it “itself has no need of justifying grounds,”17 but it does require a reflection on reason as a justificatory, responsibility bearing faculty. Moreover, according to Rawls, underlying the Kantian approach is a particular notion of persons as being able to use practical reasons specifically in community with others, a notion that is neither constructed nor set forth, but is instead “elicited” – in my terms, reconstructed – from our moral reflection.18 Rawls expresses this point, both with reference to Kant and to his own “non-metaphysical” version of “political” constructivism, by saying that the construction process is based on “principles of practical reason in union with conceptions of society and person,” which are themselves “ideas of practical reason.”19
My own conception accordingly assumes the following order of argumentation. First, the general principle of justification must be reconstructed as a principle of practical reason. It states that norms must “earn” their validity in a way that corresponds to their claim to validity – that is, moral norms that claim to be valid in a strictly reciprocal and general way must be justified in discourses of justification that reflect the criteria of reciprocity and generality procedurally and as regards their content. They are criteria of practical reason. Reciprocity in this context means that nobody may make claims that are denied to others (reciprocity of content) and that nobody may simply impute their own values, interests or needs to others, even in a well-meaning sense, but must seek a language of justification that can be shared in a normative sense (reciprocity of reasons). Generality means that no one may be excluded from the community of equal subjects of justification for whom the respective norms claim to be equally valid. Discourses of justification that are guided by these criteria – both on the factual and the counterfactual understanding – are procedures of practical reason.
It follows from the foregoing that the authorities of this constructive justification are the persons who have a duty to respond to each other in this way and thus to take responsibility for their actions (or their normative order). This conception of persons as the highest normative authorities who know and recognize that they have a duty of and a right to justification is a conception of practical reason. All of these notions are the product of a consistent, recursive20 reflection on what it means to be a morally or politically responsible subject of justification. There is no secret metaphysics at work here, but instead a fundamental reflection on what it means to “stand” in the space of normative justifications, that is, to enjoy the status of author and addressee of norms.21
To allude briefly to some wide-ranging discussions in moral philosophy, this conception differs from a form of “constitutivism” that anchors the duty of categorical moral justification in the conditions of autonomous agency itself,22 in that it is concerned with the conditions of morally responsible action, not of self-determined action as such. For persons who are not morally autonomous also act, and they act deliberately, possibly on the basis of ethical or religious reasons that are not generalizable. But they do not act in a morally responsible way unless they seek reciprocal–general reasons in moral contexts.23
One of the distinctive features of the approach based on a theory of justification is that it situates the duty to justify in the social world in such a way that the individual is viewed from the outset as a communal being, so that moral reflection is not understood as a subjectivist or monological form of generalizing thinking. The moral person is always a member of a community of justification. In the moral context, this community includes all moral persons in general, but at the same time it emphasizes responsibility toward and for concrete individuals.24 The objectivity of constructivist morality is achieved intersubjectively, through discourses of justification within a community of responsibility, in relation to which moral persons understand themselves. The bond of practical reason is a moral bond, and individual moral authority can only be exercised together with all others.25
As already emphasized, the version of constructivism I advocate does not assume that there are no values other than those constructed in this way. There are various sources of normativity, some of which are specific (particular communities of shared values), some general (a universalistic religion, for example). And in the sphere of morality as well, it is not necessary to dispute the reality of certain values or reasons in principle.26 My approach remains agnostic regarding these questions. The crucial point is that, in the context of morality (not in that of the good in general), the principles and criteria of practical reason are understood as transcendentally and pragmatically reconstructed principles and criteria that are valid without exception for practically rational beings, unless they arrive at better reconstructions of these basic concepts with the help of that same reason. There is no reflexive faculty of value cognition that could transcend or trump the reflection of reason. It generates moral truth “for us”; it remains an open (metaphysical) question whether further dimensions of truth or reality are opened up by reasons.
The criteria of reciprocity and generality enable us to determine the reasons that are, in Scanlon’s formulation, “reasonably rejectable” in a substantive way, lending specific content to his abstract formulation.27 This has two advantages over a consensus theory: first, given existing, real dissension, we can specify in greater detail which norms are reciprocally and generally rejectable and which are not; and second, in real cases of consensus, it can be shown that they may not be well founded or may go far beyond what would be reciprocally and generally required (in the sense of being supererogatory, something which Scanlon had in mind when he proposed the negative formulation). These points are indispensable for a critical theory of justification.28
It follows from what has been said that we must distinguish different levels of normativity within Kantian constructivism. The basic level is the binding power of the principle of justification as a principle of practical, justifying reason. It states not only how reciprocal–general norms could be justified in morally relevant practical contexts, but that there is a duty and a corresponding right to such justification. This right to justification, which follows from the principle of justification itself, is the morally fundamental right and, in political contexts, it is the only, as one might say with Kant, “innate” right, just as he speaks of an “original” human right to freedom from the arbitrariness of others in a legal condition in which general laws hold sway.29
A second level of normativity is that of moral norms that are generated by a strictly reciprocal–general justification – a procedure of moral constructivism. In this context, as already noted, forms of factual justification are to be combined with forms of counterfactual justification, thus the greatest possible discursivity toward those affected in combination with reflection on justifiability in a comprehensive moral community of all human beings who belong to the moral community of justification.
At the political–legal level of political constructivism (within a political community of justification), further normativities must be distinguished. At a fundamental level, human rights and basic principles of justice must be grounded in such a way that they form a basic structure of justification in which those who are subject to a normative order become part of the general authority that governs this order – and who at the same time are protected as legally, politically and socially non-dominated equals, for example, by basic rights.30 Moreover, with regard to human rights, one must distinguish between the justification of a general list as opposed to concrete forms of these rights. Beyond the level of basic rights and principles, political–legal norms must be justified that spring from a basic structure of justification and are legitimized by its procedures. Especially when norms originate in majority opinions, however, their fundamental justifiability remains open to question – here, those whose reciprocally and generally non-rejectable claims have been overruled have a discursive veto right.
Factual and counterfactual justification are also intertwined at the level of political constructivism. As important as it is to install democratic and rights-securing justification practices within a basic structure of justification (or what I call “fundamental justice”), it remains indispensable to question the justifiability of these procedures, as well as their results, and to enable and even to institutionalize this scrutiny in a critical, Kantian “reasoning” public sphere – for example, through certain formats such as minority rights to object or deliberative forums, in addition to forms of judicial review. These are important steps leading to a justified basic structure (what I call “full justice”), which is a regulative idea in the Kantian sense. Normative orders, speaking in ideal terms, are orders that seek to realize the ideal of the noumenal republic of which Kant speaks by continually improving the position of the subjected, who are at the same time supposed to be law-givers. This constitutes political and moral progress.
This ideal, which Kant calls “Platonic,” must not be confused with a fixed, substantial ideal such as the one developed in Plato’s Republic. It is only a formal ideal based on principles, whose real shape, according to the Kantian point, must be developed autonomously. Here there is no “ideal theory” that would only need to be “applied,” but principles of autonomy that must be realized and developed autonomously. This development is part of creative collective self-determination.
The practice of justification, whether moral or political, is thus always situated between the worlds – the world of what is factually justified and that of what is justifiable, which is always open to further scrutiny. Hypothetical and real justification form a dialectical unity that demands progressively better realizations of the practice of reciprocal–general justification, but scrutinizes every such realization regarding its procedures and its results in terms of the same criteria. Within a normative order, which is and should be an order of justification as a practice, institutions must be created that provide for such scrutiny and make genuine authorship possible.
Kantian constructivism, thus understood, takes seriously the demand for autonomous legislation in the context of morality, as well as in that of politics. In this respect, it is a form of critical constructivism that is itself based on the critical principle of reason of not recognizing any authorities in the space of reciprocal–general norms other than the discursive community of all in common, bound solely by the principle of justification. Thus, autonomy is a property of each individual and also of all individuals together, and practical reason is exercised individually and collectively – in reciprocal giving and asking for reasons. The answer to the question of the justification of norms lies in the reflection on ourselves as justifying beings. In this way, autonomy becomes possible and the insight that normativity cannot be grounded on non-normative facts or on unquestioned values becomes guiding. An empirical notion of well-being, for instance, would only become part of a moral justification if it entailed reciprocal–general reasons for promoting or taking into account such well-being; and speaking in terms of “absolute” values would only acquire its moral meaning if what normatively followed from those values could be justified in reciprocal and general terms. However, this points to the fact that the status of individuals and of all as equal normative authorities of justification is categorically valid on the correct understanding of what it means to be part of the practice of justification. To understand this is to recognize that, in moral contexts in which we unavoidably find ourselves, practical reason commits us to a certain form of justification.
As Kant and many others have argued,31 one cannot properly enter the space of morality through non-moral considerations, neither when it comes to grounding the duty of justification nor to explaining moral motivation. Someone who tries to justify morality based on non-moral “interests,” for instance, will not arrive at it; and those who observe morality from non-moral motives act in conformity with morality, but do not act morally. Moral autonomy corresponds to the autonomy of morality. But this does not open up a separate realm of reasons or ends that constitutes the “true reality” in some sense; rather, it follows from a reflection on what we are as practical beings, namely that we are responsible to each other. In the case of the good life, the form that practically responsible answers take is up to us in many respects. But when it comes to what we owe to others in a moral sense, we are not free regarding this form, because autonomously accepting responsibility is bound up with the ability to provide answers in accordance with practical reason.
The task of morality as a whole, as well as of justice as the chief virtue of political and social institutions, is to banish the rule of arbitrariness from human relations so far that it rules out any violation of basic respect or any form of social and political domination (by which is meant the submission to an order without justification). Autonomous action stands against arbitrary, heteronomous action; just orders obviate the arbitrary rule of some over others, where arbitrariness means acting or ruling without justifying reasons. The contrasting concept to arbitrariness is that of dignity; it is a bulwark against the arbitrariness of wrongfulness and injustice. The status of dignity in this context is not a reified status of social “worthiness”; rather, it materializes wherever people enjoy or struggle for a right to justification. In the ideal case of a noumenal republic, the entire normative order would be an order of autonomy and of the realization of the right to justification; in reality, if things go well, we take steps toward it. This does not mean that, within a justified framework of law, people cannot act as they wish – but they can do so specifically within this framework, which they co-determine as part of the legislative apparatus.
Kantian constructivism is an expression of a critical theory of normativity that emphasizes the autonomy of individuals in common with others, and it cannot be used to justify orders of value or rule that restrict that autonomy. Everything that is valid between persons must merit this validity – here what Kant says about pure reason holds true, namely that it must “subject itself to critique in all its undertakings” and that it may not “restrict the freedom of critique through any prohibition without damaging itself.”32 Reason has “no dictatorial authority,” but its “claim is never anything more than the agreement of free citizens, each of whom must be able to express his reservations, indeed even his veto, without holding back.”33
An essential part of such a critical theory of normativity is that it must scrutinize itself self-critically regarding its own limitations. As for Kant’s theory itself, it serves to expose and repudiate the morally arbitrary and discriminatory gradations and exclusions to be found in his work with regard to political participation based on gender and economic status, or the (greater or lesser) value of particular cultures and “races.”34 Moreover, recalling the noumenal and counterfactual conception of the equal worthiness of all human beings as members of the moral community of responsibility, it serves to repudiate the morally arbitrary restriction of this membership to beings who are currently in full possession of their mental powers.35 This restriction confuses a moral–noumenal determination of rational human nature with an empirical determination of entities who are able to actively exercise the faculty of reason.36 In a Kantian conception, the claim to act in a morally responsible way is addressed to the latter – but this imperative is valid also and especially toward those who do not yet or no longer have such reason, for example due to age or illness or contingencies of birth. To define them out of the moral community is in the highest degree morally arbitrary, and it confuses the two questions of moral agency and of moral standing.
The idea underlying Kantian constructivism is as simple as it is complex: in moral and political contexts, we should understand ourselves as noumenal, moral equals who constitute the authority of legislation together in accordance with practical reason as the faculty of responsible justification. And that we should really become the authorities that we always already are in the normative sense, is the imperative of critical Kantian constructivism.
2 Discussion contexts and outline of the argument
The following chapters can be read – this at least is my hope – as steps in an argument leading to a comprehensive philosophy of justification that systematically takes up and connects topics in moral, social and political philosophy. At the same time, however, each chapter is the fruit of specific contexts of discussion which, even when they address classical questions, assume the form of a current discourse in which I intervene. This is the principle underlying philosophical and basic theoretical research, and thus at this point I would like to express my general thanks to the many colleagues who are mentioned individually in the relevant chapters. Thinking is a dialogical activity, and each text is a conversation with specific others and an invitation to many unknown others to participate. This is not only true of a philosophy of justification.
The fact that I divide the first two parts of the book into discussions of “Basic Questions of Social Philosophy” and of “Critical Political Theory,” respectively, does not mean that I subscribe to the distinction between social philosophy and political philosophy, according to which the former deals with social questions of the “successful life” and the latter primarily with questions of justice within a political order.37 The distinction between questions of the good and the just is important, but the moral-philosophical orientations from which I start have a lot to say about classical questions in social philosophy, such as the meaning of self-determination as a social practice, without having to appeal to notions of the good.
I argue for this in Chapter 1 in an exemplary way, where, following Rousseau, Kant and Marx, I reconstruct an important tradition of critical theories of alienation that understand it not as a failure to live a good life, but as a fractured relationship to others and to oneself as beings who are “actually” but not “really” equal normative authorities in the domain of morality and of political and social life. I analyze the lack of recognition by and of others as moral or political equals as first-order alienation, whereas an extreme form of second-order alienation consists in not being aware of oneself as a normative authority. Autonomy as Kant understands it provides the key to analyzing and overcoming such forms of alienation.
The postcolonial age has witnessed an intensification of criticism of the traditional Enlightenment concept of progress and, as a result, the criteria of social and moral progress are in need of reconsideration. This is the topic of Chapter 2. The question of the justification of progress calls for reflection on the progress of justification, that is, on the processes through which individuals (and collectives) achieve self-determination as normative authorities, in social and in political life. Where this is successful, progress is discernible, in accord with central claims of the Enlightenment and of postcolonial criticism. This also shows that the opposition between immanent and transcending critique, or between historical and universalistic justifications of normativity, must be overcome. The question of justification arises in concrete historical contexts and at the same time points beyond them.
The concepts of progress, regress and, more specifically, of regression form a unity. Contemporary analyses of the crisis of democracy often connect the rise of authoritarian populism with the concept of democratic – or better: anti-democratic – regression. Understanding regression broadly as the rule of unreason, Chapter 3 discusses the normative presuppositions of such uses of the concept with a view to identifying and avoiding several important mistakes in the ongoing discourse. The discussion notably aims to prevent an unjustified fixation on the status quo ante, an inappropriate diminution of the concept of democracy, and a false categorization of democracy critique. Finally, the chapter develops its own analysis of the causes of democratic regression and of the paradoxes of our time.
The concept of solidarity belongs to the inventory of normative basic concepts of social and political thought, but is notoriously controversial. In Chapter 4, I try to explain why this is so. I count solidarity among the “normatively dependent” concepts whose core meaning only crystallizes in combination with other normative sources in particular contexts into particular conceptions of solidarity. Then the controversy over the “correct” definition of solidarity becomes more transparent, because it is a dispute over differently situated normative views of social and political life that can collide, as, for example, the solidary commitment to emancipatory justice can collide with a nationalistic understanding of solidarity.
Something similar holds for the multifaceted concept of social cohesion discussed in Chapter 5. Here it is also important not to commit oneself prematurely to a particular normative understanding of this concept, but first to analyze the relevant dimensions descriptively as a prelude to clarifying possible normative uses. The task of elaborating a critical understanding of cohesion can then be taken up, addressing the problem that social exclusions are sometimes justified as measures for strengthening “cohesion.” This becomes an object of ideology critique.
The chapters in the second part of the book begin with a programmatic text on the understanding of reality shaped by a theory of justification, as already mentioned. Chapter 6 takes as its starting point the opposition between a Platonic conception of the world of values and an understanding of realism that is widespread in the social sciences, but also increasingly in political theory, which leaves little room for normative questions and considerations, let alone for the autonomy of morality. I try to show, on the one hand, that the empirical analysis of the orders of justification in which we actually move provides the key to a realistic, but noumenal understanding of power – and that, on the other hand, such analysis cannot ignore the question of justification as a normative question. As observers of normative orders, we are always also participants in them and, especially in our role as participants, we cannot avoid the question of justification as a political–moral request and demand. The empirical program thus gives rise to a program of critical theory as a critique of relations of justification.
Chapter 7 documents an intervention in the diverse debates about moral, legal and political understandings of human rights in which I recall their historical development and their purpose of securing for people a status as non-dominated equals who are not only protected by the law, but can also contribute to shaping it as politically autonomous subjects. From there, I develop a Kantian constructivist theory of human rights and their various normative dimensions based on the right to justification. This right is the basis of human rights.
In Chapter 8, I continue the discussion of questions of transnational justice in which I have participated for some time (in addition to that on human rights) from the perspective of contemporary Frankfurt School critical theory in confrontation with alternative theoretical approaches. I argue that we must overcome false oppositions between “idealist” and “realist” approaches and show how a critical social-scientific examination of multiple contexts of domination must be combined with reflection on principles of justification and non-domination. A discussion of “practice-dependent” and alternative, non-relational approaches opens up space for a third position, which starts from a critical understanding of political and social practice and avoids distorted accounts of the structural injustice characteristic of transnational contexts.
Continuing my work on the notion of “noumenal power” and responding to some critiques, I turn in Chapter 9 to the puzzle of how the fact that many analyses depict structural domination as anonymous and “faceless” can cohere with the fact that at the same time it is criticized as an injustice bound up with certain responsibilities of social actors. As a solution to this puzzle, I propose an understanding of structural power and domination that views structures as empowering or disempowering groups and actors, ones that must be analyzed as structures of injustice, so that responsibilities can be named without reducing the complexity of these structures. Otherwise, the question of emancipation would be left in a void.
In recent neo-republican political theory, Quentin Skinner and Philip Pettit in particular have defended an understanding of non-domination as protection against possible arbitrariness by others. In Chapter 10, I draw on Kant (and on central ideas of German idealism, also to be found in Axel Honneth’s theory of recognition) to develop an alternative republican understanding of non-domination that emphasizes the importance of political autonomy over the protection of personal freedom of choice. Using the thought experiment of a neo-republican machine that calculates secure spaces of individual freedom without allowing for political autonomy, I show why a Kantian understanding of authorship within a normative order is indispensable for political republicanism.
In the chapters comprising Part III, I engage in discussions with approaches that are close to my own and yet are different in relevant ways: John Rawls’s theory of justice, Thomas Scanlon’s contractualism and Jürgen Habermas’s discourse ethics.
In Chapter 11, I suggest a Kantian reading of Rawls’s political liberalism. As much as Rawls distanced himself from a comprehensive Kantian doctrine, we ought to read his account as a non-comprehensive Kantian moral–political theory. According to this reading, the liberal conception of justice is compatible with a plurality of comprehensive ethical doctrines as long as they share the independently grounded, “freestanding” principles of justice which define the “reasonable.”
Following this, in Chapter 12 I ask whether a Kantian understanding of justice such as Rawls’s is compatible with the consequentialist theory of luck egalitarianism. Drawing on Rawls, but also based on fundamental considerations of justice, I argue that the respective approaches rest on radically different paradigms – not least because luck egalitarianism, which emphasizes the distinction between imputable choices and circumstances for which no one is responsible, ends up in the contradictory attempt to use a morally highly arbitrary distinction to overcome social moral arbitrariness.
In the following chapter, I develop a discourse-theoretical reading of Scanlon’s contractualism with respect to moral and political justification. In my view, Scanlon’s moral theory is best reconstructed as exhibiting “justification fundamentalism” rather than “reasons fundamentalism” (as he calls his account). This means that the duty of justification toward moral equals is a basic demand of practical reason, and it implies the constructivist priority of criteria and procedures of justification (or non-rejectability) for any valid normative reason.38
In Chapter 14, I continue a philosophical dialogue with Jürgen Habermas, who has accompanied and shaped my thinking for decades. The question I pursue in the form of an interpretation of his three-volume work Also a History of Philosophy goes back – how could it be otherwise? – to Kant and to Habermas’s interpretation of Kant. It concerns the relationship between history and normativity and the autonomy of morality as compared to sittliche or ethical and religious justifications and motivations. My question essentially is: Does this autonomy remain intact in light of Habermas’s genealogy of modernity? In what way can and must the discourse-theoretical understanding of communicative reason differ from a Kantian understanding of practical reason?39
I have emphasized the dialogical structure of thought, at least of my own. This includes other important discussions that I have not included here for reasons of space, such as a critical engagement with Arthur Ripstein’s recent interpretation of Kant,40 my contributions to Festschriften for Nancy Fraser41 and Christoph Menke,42 or my discussion of Allen Buchanan’s political philosophy43 or of Andrea Sangiovanni’s conception of solidarity.44 The aforementioned and many more were and are indispensable discussion partners. This is how thought advances – assuming things go well. In contrast to Part III of the German edition of this book, I decided not to reprint the political essays on the current crisis of democracy contained there. This is not because I no longer consider them to be valid, quite the contrary, but I am planning to publish them in a separate volume.45
Since the publication of Normativity and Power I have had the immense privilege of being able to reflect on and respond to a number of critical essays on my work by highly esteemed colleagues.46 These contributions have appeared together in journal symposia or in separately published essay collections.47 I have not included my respective replies in the present volume, but they represent important milestones for the clarification and further development of my thinking. In my response to Simone Chambers, Lea Ypi and Stephen White, I present key aspects of a critical theory of politics as I understand it.48 In responding to Seyla Benhabib, Jeff Flynn and Matthias Fritsch, I specifically address the questions of the historicity of the grounding of the right to justification and various democratic-theoretical and moral-philosophical aspects of my approach.49 In the replies to critiques of a text on basic rights containing an extensive discussion of various theories of rights, including that of Habermas,50 I explain and develop my conception of rights in dialogue with Laura Valentini, Glen Newey, Marcus Düwell and Stefan Rummens.51
