John Rawls' New Methodology: An Interpretive Account

NOTES

John Rawls’ New Methodology: An Interpretive Account

Kai Nielsen*

In the years since the publication of A Theory
of Justice, Rawls has elaborated on his project
in a number of important articles and lectures.
The author of this note contends that in these
later works, where Rawls clarifies the nature
of his political philosophy and ethical theory,
a new methodological approach is evident.
Through an interpretive reading of these later
writings, the author sketches the outlines of
this new methodology, characterised particu-
larly by a new emphasis on the limitations on
the scope of the undertaking and its practical
intent as a political enterprise for pluralistic
constitutional democracies.

Au cours des anndes suivant la publication de
A Theory of Justice, Rawls a dlabor6 son projet
philosophique dans plusieurs articles et conf6-
rences importants. L’auteur de cette note
soutient que dans ces oeuvres r~centes, oi
Rawls clarifie ]a nature de sa th6orie 6thique et
sa philosophie politique, une nouvelle appro-
che m6thodologique est perceptible. Par une
lecture interpretative de ces 6crits de Rawls,
l’auteur esquisse les grandes lignes de cette
nouvelle m6thodologie, qui se distingue par
son insistance sur l’6tendue limit~e de son pro-
jet, ainsi que par son intention pratique en tant
qu’entreprise politique visant surtout les
d6mocraties constitutionnelles pluralistes.

* Department of Philosophy, Faculty of Humanities, University of Calgary.

McGill Law Journal 1990
Revue de droit de McGill

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RAWLS’ NEW METHODOLOGY

Synopsis

The New and the Old Rawls

Introduction
I.
H. Rawls’ Theory as a Political Enterprise
III. A Political Conception of Justice
IV. Rawls’ Principles of Justice
V. Methodological Considerations
VI. Some Elaborations: The Dewey Lectures
VII. A Contrast Between Constructivism, Ethical Naturalism and

Rational Intuitionism

VIII. The Extent of the Method of Avoidance

It is a moot point whether New Methodology should be put in scare quotes.
My not doing so attests to my belief that John Rawls in his recent papers has
made a significant new departure anticipated in part in A Theoy of Justice, ‘but
now taking a sufficiently distinct and determinate new turn to be legitimately so
characterized. Rawls still pursues a contractarian approach and what he regards
as a Kantian project, but its scope has been so limited as to disappoint the hopes
of not a few philosophers. I, by contrast, believe that it has a welcome mark of
realism that leaves it not unreasonable to hope that Rawls’ account might actu-
ally be of no inconsiderable value in articulating the form and design of just
social structures for societies such as our own.

Some have thought that by so circumscribing the scope and argumentative
structure of political philosophy, Rawls has abandoned its basically Socratic
conception, a conception that gives political philosophy its underlying rationale

1J. Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).

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and importance.2 I think this claim is false. What Rawls has actually done is to
appropriately contextualize political philosophy. Without dropping the deploy-
ment of arguments (something essential to philosophy, no matter how narrative
it might become) and the search for justifiable rational standards, he has given
political philosophy a powerful and only partially utopian argumentative and
critical role.

As impressive and carefully rendered as his account is, there is, the above
notwithstanding, plenty of scope for a critique of Rawls. Central here, though
this is by no means the only issue, is the unrealism of his sociological back-
ground assumptions.3 My task here shall be the preliminary one of giving a per-
spicuous representation of the methodological side of Rawls’ frequently misun-
derstood later theory. I shall seek to give an elucidatory and interpretive account
of it designed to bring out clearly its not inconsiderable importance and unique-
ness. One can, of course, be more interested in being original than right. Not a
few philosophers have been like that. But Rawls is original and arguably gives
us a sound theory. I want to try to bring out clearly the very considerable import
of its underlying methodology: an import that would remain even if the substan-
tive content of his theory turns out to be flawed.

1. The New and the Old Rawls

Rawls seeks a way out of “the current impasse in the understanding of free-
dom and equality”4 which troubles what he calls “our democratic tradition”‘5 .
His manner of trying to find a way out of that impasse is indirect. Since the
topic –
is of central interest in
political philosophy and since Rawls is perhaps the major theoretician in such
domains, I want to set out and then critically examine Rawls’ indirections: his
way around the bog.

freedom and equality and their relations –

Two features attracted many philosophers and social theorists to Rawls’ A
Theory of Justice and to his essays preceding it. First, Rawls presented a sys-
tematic alternative to utilitarianism which, while preserving many of utilitaria-

2J. Hampton, “Should Political Philosophy be Done Without Metaphysics?” (1989) 99 Ethics
791.3K. Nielsen, Equality and Liberty: A Defense of Radical Egalitarianism (Totowa, N.J.: Rowman
& Allanheld, 1985), Part I; K. Nielsen, “Capitalism, Socialism and Justice” in T. Regan & D. Van
de Veer, eds, And Justice for All (Totowa, N.J.: Rowman & Allanheld, 1982) 277; K. Nielsen, “A
Critical Notice of John Rawls’s A Theory of Justice” (1973) 2 Second Order 101; K. Nielsen, “The
Priority of Liberty Examined” (1977) 11 Indian Political Science Review 48; K. Nielsen, “Rawls
and the Left” (1980) 1 Analyse & Kritik; K. Nielsen, “Ideological Mystification and Archimedean
Points” (1979) 33 Rev. Int. de Phil.; K. Nielsen, “Morality and Ideology: Some Radical Critiques”
(1982) 8 Graduate Faculty Philosophy Journal.

4J. Rawls, “Justice as Fairness: Political Not Metaphysical” (1985) 14 Philosophy and Public
5lbid.

Affairs 222.

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nism’s strengths, precisely identified its weaknesses and provided at least a
seemingly cogent and unified account of the moral terrain where utilitarianism,
in any of its forms, was defective.6 Second, when his work first appeared,
Rawls’ account seemed to hold out the promise of providing an Archimedean
point in ethics, a point sought by both Kant and Sidgwick 7. It would show how
the fundamental principles of social justice for a well-ordered society could be
derived from coming to know what rational agents would choose under condi-
tions of moderate scarcity, where they could not fail to be impartial and had the
best available general information about human nature, the world and society.
What seemed so attractive to many was the claim that there was something
determinate that all rational persons reasoning under those conditions would
agree on. In that way Plato’s old dream, one shared by Kant, of deriving moral-
ity from reason would be realized. On Rawls’ account, the correct principles of
justice for the design of the basic structure of a well-ordered society would be
the principles chosen, but not discovered, by such rational contractors operating
under a thick veil of ignorance in the original position. Rawls thought –
or at
least was taken to think –
that there was a unique set of principles of justice
that would be chosen by rational contractors reasoning under such constraints
in conditions of moderate scarcity.

Such a claim to an Archimedean point both intrigued and attracted but also,
understandably and predictably, generated considerable scepticism and criti-
cism. Brian Barry and Robert Paul Wolff, among others, sought to show that no
such derivation of morality from rationality was possible.’ But what also grad-
ually became clear, from the explications of some of Rawls’ sympathetic inter-
preters as well as from Rawls’ own writings subsequent to A Theory of Justice,
was that no such a rationalistic program was ever intended by Rawls. He was
not trying to realize Plato’s and Kant’s grand dream. He had no intention of pro-
viding such an ahistorical and rationalist Archimedean point. While he does not
say so explicitly, I think it is very likely that he would believe that this very
dream of rationalistic philosophers is misconceived. Such a conception should,
on good Quinean grounds, go into the dust bin of history along with foundatio-
nalist epistemology (if that is not pleonastic) and ontology.’

6This is clearly brought out by W. Kymlicka, “Liberal Individualism and Liberal Neutrality”

(1989) 99 Ethics 883.

H. Sidgwick, Methods of Ethics (London: MacMillan & Co., 1962).

7I. Kant, Groundwork of the Metaphysics of Morals, trans., (Indianapolis: Bobbs-Merrifll, 1964);
8B. Barry, The Liberal Theory of Justice (Oxford: Clarendon Press, 1973). R.P. Wolff,
Understanding Rawls (Princeton, N.J.: Princeton University Press, 1977). Barry very effectively
criticizes Wolff’s account and provides a lucid account of both Rawls’s theory and the (then) state
of Rawls’s critique. B. Barry, “Understanding Rawls” (1978) 7 Canadian Journal of Philosophy
753.

9K. Nielsen, “On Being Ontologically Unserious” in J. Heil, ed., Cause, Mind and Reality:

Essays Honoring C.B. Martin (Amsterdam: Degruyter, 1989).

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In writings subsequent to A Theory of Justice, Rawls makes it quite clear
that his program is more modest. His ethical theory and his normative political
philosophy is not something for all possible worlds or even for all present day
societies but for democratic societies (constitutional democracies) such as we
know them in Western capitalist societies and possibly in democratic socialist
societies. The only Archimedean point he is seeking is one which would pro-
vide an underlying rationale for the fundamental public norms and ways of
ordering for such a constitutional democracy: a rationale which could provide
direction for such societies becoming well-ordered with thoroughly fair institu-
tions. There is no search here for an overarching Archimedean point. The first
principles of justice are, as Rawls puts it in his Dewey Lectures, “used to settle
the appropriate understanding of freedom and equality for a modem democ-
racy.”‘0

In a way that many of his critics (including Robert Nozick”) did not keep
firmly enough in mind, the subject matter of Rawls’ discussion of justice is the
basic structure of society. That, he stresses, and not individual justice, is the first
subject of justice. As Rawls puts it himself, “The first subject of justice is the
basic structure of society.”‘ 2 Once we have that clear we can, perhaps in rather
different ways than has been traditionally done, tackle questions of individual
justice with some confidence. But the first order of business is to clearly char-
acterize what a just society would look like: what the basic structure of its net-
work of institutions would be.

II. Rawls’ Theory as a Political Enterprise

The limitation and the practical intent of Rawls’ endeavour comes out most
clearly in three revealing essays, “Justice as Fairness: Political Not
Metaphysical’ 3, “The Idea of an Overlapping Consensus”‘ 4 and “The Domain
of the Political and Overlapping Consensus”. 5 He takes his underlying concep-
tion of justice as fairness, as providing a “political conception of justice for a
constitutional democracy.”‘ 6 He stresses, as he did five years earlier in his
Dewey Lectures, “that the justification of a conception of justice is a practical
social task rather than an epistemological or metaphysical problem.”‘ 7

‘0 bid. at 554.
“1R. Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).
12J. Rawls, “Kantian Constructivism in Moral Theory” (1980) 77 Journal of Philosophy 515 at

552.

‘3(1985) 14 Philosophy and Public Affairs 223.
‘4(1987) 7 Oxford J. Leg. Stud. 1.
15(1989) 64 N.Y.U.L. Rev. 233.
16Supra, note 13 at 223.
171bid. at 224.

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Realizing that his views have changed in various ways and remarking that
they may have also changed in ways of which he is not fully aware, he sets aside
the question of whether A Theory of Justice requires the reading of justice as
fairness he provides in “Justice as Fairness: Political Not Metaphysical” and
“The Idea of an Overlapping Consensus” or whether it is equally compatible
with other readings. What he seeks to do in those two essays is

first, to show how a conception of justice with the structure and content of justice
as fairness can be understood as political and not metaphysical and second, to
explain why we should look for such a conception of justice in a democratic soci-
ety.18

As Rawls himself points out, what he failed to do in A Theory of Justice
is to stress sufficiently how “justice as fairness is intended as a political concep-
tion of justice.”‘ 9 He seeks in “Justice as Fairness: Political Not Metaphysical”
to work out, in a way which stands in stark contrast to the work of say Derek
Parfit? or of Thomas Nagel”1 , a theory of justice which for him must be a public
conception of justice for a constitutional democracy, which, as such, should “so
far as possible” be “independent of controversial philosophical and religious
doctrines.”

It appeared to many that A Theory of Justice depended on certain distinc-
tive philosophical claims, particularly, as Derek Parfit and Michael Sandel
stressed, on certain philosophical conceptions of the self.’ But that was not
Rawls’ intent. Whether or not such a conception slipped into A Theory of
Justice, Rawls seeks, perfectly self-consciously, in “Justice as Fairness: Political
Not Metaphysical” and in “The Idea of an Overlapping Consensus” to develop
that conception of justice, as a thoroughly political conception which avoids
“claims to universal truth, or claims about the essential nature of identity of per-
sons.”

24

In explaining why it does not and in trying to justify why his account can
and indeed should set aside such philosophical questions, he first describes what
he takes to be “the task of political philosophy at the present time”.’ He then
surveys “how the basic intuitive ideas drawn upon injustice as fairness are com-

“Slbid.
‘ 91bid.
20D. Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984).
21T. Nagel, The View From Nowhere (New York: Oxford University Press, 1986).
22Supra, note 13 at 223.
2D. Parfit, “Later Selves and Moral Principles” in A. Montefiore, ed., Philosophy and Personal
Relations (London: Roufledge & Kegan Paul, 1973) and M. Sandel, Liberalism and the Limits of
Justice (Cambridge: Cambridge University Press, 1982).

24Supra, note 13 at 223.
25Ibid. at 222.

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bined into a political conception of justice for a constitutional democracy.”26 In
the course of doing these two things (particularly the latter), he shows how jus-
tice as fairness “avoids certain philosophical and metaphysical claims.”27

Whatever may have been true for a person doing political philosophy at the
height of the Middle Ages, where a certain reflective consensus could reason-
ably be assumed on metaphysical doctrines, no such consensus obtains, or is
likely to obtain, in our secularized liberal societies. A public conception of jus-
tice, for a political philosophy must, if it is to have any hope at all of being pub-
licly accepted, be a conception which is philosophically neutral. That is to say,
applying the principle of toleration to philosophy itself, it must make no epis-
temological, metaphysical or meta-ethical claims or at least not make any such
claims if they are the least bit controversial in contemporary democracies. If a
political philosophy does not observe these constraints, it will have no chance
of being an account of justice gaining any kind of extensive consensus. It is
vital, Rawls argues, that justice as fairness or any political conception of justice
that aspires to be more than idle utopian prattle, be philosophically neutral.

m. A Political Conception of Justice

In speaking of a society’s basic structure, Rawls is referring to its “main
political, social and economic institutions, and how they fit together into one
unified system of social cooperation.” ‘2 Justice as fairness, as a political and
public conception of justice, is “framed to apply to what I have called the ‘basic
structure’ of a modem constitutional democracy” to its “main political, social
and economic institutions.”29 As a political conception it is also, Rawls points
out, a moral conception but that does not mean that political philosophy col-
lapses into moral philosophy for justice as fairness, as other political concep-
tions of justice, is “a moral conception worked out for a specific kind of subject,
namely, for political, social and economic institutions.” ‘ Indeed its application
is even narrower than that, since Rawls constructs it for societies which are con-
stitutional democracies. It is a theory of justice for our time with outr distinct
tensions between liberty and equality and for a society which does not have, and
has no likelihood of having, an authoritative conception of the good. Rawls
makes no claim about whether his account could be extended to a more

261bid. at 223.
27Ibid.
28Ibid. at 225.
29Ibid.
3See also for a similar conception I. Berlin, “On The Pursuit of the Ideal,” 35 The New York
Review of Books (March 17, 1988) 11 and I. Berlin, Two Concepts of Liberty (Oxford: Oxford
University Press, 1969).

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general political conception for different kinds of societies existing under different
historical and social conditions, or whether it can be extended to a general moral
conception, or a significant part thereof.31
Rawls takes it to be an obvious sociological fact about our societies that
“as a practical political matter no general moral conception can provide a pub-
licly recognized basis for a conception of justice in a modem democratic
state. ’32 Given the ‘stalemated resolution’ of the wars of religion following the
Reformation and given the development of capitalism with its distinctive super-
structural requirements, workable conceptions of political justice “must allow
for a diversity of doctrines and the plurality of conflicting and indeed incom-
mensurable conceptions of the good affirmed by the members of existing dem-
ocratic societies.”33 In this important sense, justice as fairness is plainly a con-
ception of justice for liberal societies where the principle of tolerance is
incrementally and gradually extended, as it is in Rawls’ account, to all even
remotely controversial conceptions of the good and to all conceptions of ratio-
nal life plans compatible with publicly confirmed principles of justice. This last
restriction is, of course, vital.

But what justice is and which principles and practices of justice are to
guide society are not matters for tolerance where anything goes, but are matters
upon which it is imperative that we attain a rational consensus for a democratic
society under modem conditions. Justice as fairness starts from a democratic
political tradition and must, in seeking validation, continue to touch base with
that tradition. To achieve validation it must accord with most of the deeply
embedded political and moral beliefs –
of that tra-
dition. 4

considered convictions –

IV. Rawls’ Principles of Justice

In the second section of “Justice as Fairness: Political Not Metaphysical”
Rawls describes what he takes to be the central task of political philosophy in
societies such as our own. He notes that in our societies there are sharp and
seemingly intractable political divisions. Certain “fundamental questions give
rise to sharp and divisive political controversy, and it seems difficult, if not
impossible, to find any shared basis of political agreement.”35 In such a context,
one

task of political philosophy in a democratic society is to focus on such questions
and to examine whether some underlying basis of agreement can be uncovered and
a mutually acceptable way of resolving these questions publicly established.36

31Supra, note 13 at 225.
321bid.
331bid.
34Ibid. at 225-26.
351Ibid. at 226.
361bid.

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With that task firmly in mind, Rawls looks to the profound disputes in our soci-
ety about the respective scope and value of liberty and equality and at our deep
disagreements “as to how the values of liberty and equality are best realized in
the basic structure of society.””7 In democratic societies there is a strong tend-
ency to believe in something that Rawls calls democratic equality, namely that
there should be an equal citizenship where “citizens are conceived as free and
equal persons”3 . We also want a society which secures liberty and the basic
rights of all citizens. But we are unclear about how institutions can be arranged,
or even if they can be arranged so that both of these principles can be sustained.
We have strong and considered convictions here but some of them seem to con-
flict and we do not see, how, if at all, they can be made to fit together coherently.
Rawls concretizes the issue thus:

To simplify, we may think of this disagreement as a conflict within the tradition
of democratic thought itself, between the tradition associated with Locke, which
gives greater weight to what Constant called “the liberties of the modems”, free-
dom of thought and conscience, certain basic rights of the person and of property,
and the rule of law, and the tradition associated with Rousseau, which gives
greater weight to what Constant called “the liberties of the ancients”, the equal
political liberties and the values of public life. This is a stylized contrast and his-
torically inaccurate, but it serves to fix ideas. 39
Taking justice as fairness

as a reasonably systematic and practicable conception of justice for a constitu-
tional democracy, a conception that offers an alternative to the dominant utilitar-
ianism of our liberal tradition of thought&,

Rawls seeks to adjudicate between the contending Lockean and Rousseauian
traditions in such a way as to provide a perspicuous and soundly argued basis
for a democratic social order. Justice as fairness will show how these various
basic considered convictions of liberal democratic society are not just a jumble,
but fit together into a coherent whole. What it seeks to provide is a coherent
package for our constitutional principles and for our basic rights and liberties.
Utilitarianism and some forms of perfectionism have also sought to do that,
along with something far more comprehensive, but Rawls contends that their
bases were insecure. Justice as fairness provides a more adequate rationale.

It does this first by proposing two principles of justice which are “to serve
as guidelines for how basic institutions are to realize the values of liberty and
equality…”. 4 Secondly, it specifies a point of view from which these two prin-

371bid. at 227.
3 Ibid.
39Ibid.
4Ibid.
4’Ibid. at 227.

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ciples of justice can be seen as more appropriate than other familiar principles
of justice to the nature of democratic citizens viewed as free and equal persons. 42

Rawls states his principles in a more streamlined way than he stated them
in A Theory of Justice and in a way in which they are less vulnerable to certain
objections that were made to his earlier formulations. Yet it is also evident that
they have the same underlying thrust as the earlier statements of his principles.
In “Justice and Fairness: Political Not Metaphysical” they read as follows:

1. Each person has an equal right to a fully adequate scheme of equal basic rights
and liberties, which scheme is compatible with a similar scheme for all.
2. Social and economic inequalities are to satisfy two conditions: first, they must
be attached to offices and positions open to all under conditions of fair equality
of opportunity; and second, they must be to the greatest benefit of the least advan-
taged members of society. 3

When we are talking about societies of moderate scarcity the first principle
is given priority over the second. That is to say, only if the first principle actu-
ally successfully guides behaviour in the sense that the basic institutions require
it, can recourse be had to the second principle to similarly guide behaviour. And
the second principle, which has two parts, is to be read so that only if fair equal-
ity of opportunity is actually met can we rightly move from a benchmark of
strict equality and allow social or economic inequalities that are “to the greatest
benefit of the least advantaged members of society.”” This is what is meant
when we speak of the lexical ordering of Rawls’ principles.

As Rawls points out, each principle applies to a different part of the basic
structure of liberal society. Though in different ways, both are concerned with
liberty and equality. While the two principles are centrally concerned with
“basic rights, liberties and opportunities ’45, they are also concerned, equally
centrally, with “the claims of equality” ’46. And the second part of the second
principle –
is also concerned with “the worth of
these institutional guarantees”.’

the difference principle –

V. Methodological Considerations

Rawls now turns to some central methodological considerations and to a
further delineation of what he means by a public philosophy. As a philosophy,
it is not conceived to compete with the various traditional philosophies but is
constructed for a political theory, utilizable by people in constitutional democ-

42jbid.
431bid.
44Ibid.
451bid.
461bid.
47Ibid. at 228.

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racies deliberating over fundamental issues of social justice and social ordering.

In seeking to determine how such societies might find a reasonable “public
basis of political agreement” ’48 Rawls shows how the appeal to considered
judgements in wide reflective equilibrium is fundamental to him.

We must now ask: how might political philosophy find a shared basis for settling
such a fundamental question as that of the most appropriate institutional forms for
liberty and equality? Of course, it is likely that the most that can be done is to nar-
row the range of public disagreement. Yet even firmly held convictions gradually
change: religious toleration is now accepted, and arguments for persecution are no
longer openly professed; similarly, slavery is rejected as inherently unjust, and
however much the aftermath of slavery may persist in social practices and
unavowed attitudes, no one is willing to defend it. We collect such settled convic-
tions as the belief in religious toleration and the rejection of slavery and try to
organize the basic ideas and principles implicit in these convictions into a coherent
conception of justice. We can regard these convictions as provisional fixed points
which any conception of justice must account for if it is to be reasonable for us.
We look, then, to our public political culture itself, including its main institutions
and the historical traditions of their interpretation, as the shared fund of implicitly
recognized basic ideas and principles. The hope is that these ideas and principles
can be formulated clearly enough to be combined into a conception of political
justice congenial to our most firmly held convictions. We express this by saying
that a political conception of justice, to be acceptable, must be in accordance with
our considered convictions, at all levels of generality, on due reflection (or in what
I have called “reflective equilibrium”).4 9

Here Rawls makes a very fundamental appeal to those considered judge-
ments of ours which would remain most firmly fixed given informed reflection.
But central as those are, taken one by one they are still not beyond all question.
Any of them may be rightly challenged in an attempt to gather them into a
coherent whole in the face of other moral convictions, argumentation and any
factual knowledge. Rawls refers to them as “provisional fixed points [of] which

481bid.
49Richard Rorty in a powerfully argued paper develops similar points though in a more wide
ranging fashion. R. Rorty, “The Priority of Democracy to Philosophy” in M.D. Peterson & R.C.
Vaughan, The Virginia Statute for Religious Freedom (Cambridge: Cambridge University Press,
1988) 257. See also K. Nielsen, “Searching for an Emancipatory Perspective: Wide Reflective
Equilibrium and the Hermeneutical Circle” in E. Simpson, ed., Anti-Foundationalism and
Practical Reasoning (Edmonton: Academic Printing and Publishing, 1987) 143 and K. Nielsen, “In
Defense of Wide Reflective Equilibrium” in D. Odegard, ed., Ethics and Justification (Edmonton:
Academic Printing and Publishing, 1988) 19.

There are two obvious points in Rawls’s remarks that might be worrisome to at least some rad-
icals, either on the Right or on the Left. These are, first, the restriction in this context to what is
“reasonable to us” where the “us” in question are the people of our own culture and cultures like
ours, and second, to the appeal “to our public political culture itself, including its main institutions
and historical traditions.” Supra, note 13 at 228. This seems to leave little Lebensraum for the likes
of Nietzsche and Foucault or Bakunin and Kropotkin or Marx and Gramsci.

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RAWLS’ NEW METHODOLOGY

any conception of justice must account for it to be reasonable to us.”5 But, that
notwithstanding, they are for us very deeply embedded considered judgements.
They are not judgements we are likely to abandon.

Plainly some of these deeply embedded considered judgements or convic-
tions are distinctive of our culture and are not shared by all cultures of all some-
what industrialized societies. Contemporary Iran or Saudi Arabia or South
Africa are cases in point. This ‘relativism’ notwithstanding, for Rawls an appeal
to considered convictions or judgements is a central and essential element in his
conception of how we are to justify moral claims and claims in political philos-
ophy. Rawls would only be troubled by this ‘relativistic’ worry if his aim were
to erect an ahistorical Archimedean point from which to assess social institu-
tions generally and across cultures. Since that is not his aim and since in any
event we are stuck with such an appeal to considered judgements, there is no
reason to be unduly disturbed if in using them we can reveal a coherent rationale
for political judgements within a constitutional democracy.5′

Let us note the central claims in that important passage from Rawls quoted
above at length. Rawls says there that in developing a political philosophy we
are first

to collect such settled convictions as the belief in religious toleration and the rejec-
tion of slavery and try to organize the basic ideas and principles implicit in these
convictions into a coherent conception of justice.52

The idea is first to determine a consistent and coherent package of such beliefs.
From that bundle of beliefs, we then tease out some more general beliefs or
principles which would explain and justify those considered judgements by
showing an underlying rationale which would demonstrate why they were
members of the set of considered judgements, indicate how additional beliefs
could become members of that set, and show why having such a network of
beliefs and principles is something which is morally attractive and will remain
so with a good knowledge of the facts.

Unlike in his earlier works, Rawls makes plain here that these settled con-
victions are an integral part offour “public political culture”53 . In justifying a
conception of justice, we must look to our “main institutions and the historical

50Supra, note 13 at 228.
51This is a bit too complacent. Some of the reasonsfor this can be gleaned from the exchange
between Richard Bernstein and Richard Rorty over Roty’s “The Priority of Democracy to
Philosophy”, supra, note 50. R. Bernstein, “One Step Forward, Two Steps Backward: Richard
Rorty on Liberal Democracy and Philosophy” (1987) 15 Political Theory 538 and R. Rorty, “Thugs
and Theorists: A Reply to Bernstein” (1987) 15 Political Theory 564. See as well R. Geuss, The
Idea of a Critical Theory (Cambridge: Cambridge University Press, 1981).

.

52Supra, note 13 at 228.
531bid.

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traditions of their interpretation.”‘ We cannot bypass them, taking some high
philosophical road. We must appeal to them “as the shared fund of implicitly
recognized basic ideas and principles”.” Working with them we will try, as
Rawls does with his principles of justice as fairness and as Brian Barry does
with his conception of justice as reciprocity, 6 to state principles of justice which
square with the basic conceptions of our political culture, which further ratio-
nalize them and which are principles and conceptions that are “formulated
clearly enough to be combined into a conception of political justice congenial
to our most firmly held convictions.” ’57 The aim is, in a firmly coherentist way,
to get “a political conception of justice”58 consistent “with our considered con-
victions, at all levels of generality, on due reflection.”’59 And this, of course, is
what Rawls means by getting our moral and political beliefs into reflective equi-
librium.6”

With this method carefully and sensitively applied, we may be able to
make some progress with issues which are deeply contested in our culture, like
the relation of equality to liberty. We seek a reflective and informed consensus
which rests on a coherent set of beliefs. Where there are such deeply divided
views as there are in our societies about the respective value of liberty and
equality, we must, “if we are to succeed in finding a basis of public agree-
ment”61, find “a new way of organizing familiar ideas and principles into a con-
ception of political justice so that the claims in conflict, as previously under-
stood, are seen in another light.”’62 In doing this we may succeed in formulating
an organizing conception, “a more fundamental intuitive idea”63 than any of the
already “familiar ideas and principles”‘ extant in our political culture. Where
successful this new paradigm will organize and rationalize these already “famil-
iar ideas and principles”. In doing this we will come to see how this more fun-
damental organizing principle, which is also a “fundamental intuitive idea”, is
rooted in the complex structure of familiar ideas and practices and how it is “a

541bid.
55lbid. at 228.
56B. Barry, The Liberal Theory of Justice (Oxford: Clarendon Press, 1972).
57Supra, note 13 at 228. Jean Hampton in her critique of Rawls misses this critical side of Rawls.
Rawls doesn’t just report on the reasons given, good or bad, in the overlapping consensus but
shows, as well, why some of these reasons are genuinely good reasons by showing how they form
a coherent pattern in reflective equilibrium and how, as well, they would be held in the original
position when the contractors are forced to reason impartially.

58Supra, note 13 at 228.
59Ibid.
6Olbid.
6’Ibid.
62Ibid. at 229.
611b id.
641bid.

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RAWLS’ NEW METHODOLOGY

principle to which these familiar ideas and practices are systematically con-
nected and related.”‘6

Rawls takes his conception of justice as fairness to be a candidate for such
a fundamental idea. In trying to achieve a clarificatory and enlightening pur-
chase on the conflicts between equality and liberty, it gives us a conception of
“society as a system of fair social cooperation between free and equal per-
sons.” 66 We attempt to use this conception of justice as fairness to help us to find
a public basis of political agreement over areas of contested norms. But, to hark
back to our talk of considered judgements in wide reflective equilibrium, Rawls
is adamant in maintaining that a conception of justice will only be able to
achieve its aim of finding a basis of political agreement

if it provides a reasonable way of shaping into one coherent view the deeper basis
of agreement embedded in the political culture of a constitutional regime and
acceptable to its most firmly held considered convictions.67
Rawls claims that if we can arrive at some such political conception of jus-
tice, we will have provided ourselves with a “publicly recognized point of view
from which all citizens can examine before one another whether or not their
political and social institutions are just. ’68 Such a conception would single out
“valid and sufficient reasons” 69 for making certain critical assessments about the
justice or lack thereof or at least the imperfect social justice or lack thereof of
the social institutions of various democratic societies. It would provide a pub-
licly acknowledged basis for recognizing these reasons to be good reasons suf-
ficient for their critical task.70 An important virtue of such a conception is that,
if it is well-conceived, we will have shown how “society’s main institutions”7’
fit together into one scheme of social cooperation and how they can “be exam-
ined on the same basis by each citizen, whatever that citizen’s social position
or more particular interests.”72

Rawls then states a distinctive conception of justification that both squares
with what he maintained in A Theoi-y of Justice and with his ‘non-philosophical’
political conception of the organizing conceptions of justice as fairness.

It should be observed that, on this view, justification is not regarded simply
as valid argument from listed premises, even should these premises be true.

651bid. at 229.
661bid.
671bid.
68Ibid.
691bid.
70J. Rawls, “The Independence of Moral Theory”, (1974-75) 47 Proceedings and Addresses of
711bid.
72Supra, note 13 at 229.

the American Philosophical Association 5.

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Rather, justification is addressed to others who disagree with us. Therefore it
must always proceed from some consensus, from premises that we and others
publicly recognize as true; or better, publicly recognize as acceptable to us for
the purpose of establishing a working agreement on the fundamental questions
of political justice. It goes without saying that this agreement must be informed,
uncoerced, and reached by citizens in ways consistent with their being viewed
as free and equal persons.73

Rawls thinks that by so proceeding, by so conceiving of justification and
by so appealing to considered judgements in wide reflective equilibrium, he can
vindicate his conception of justice as fairness over its rivals. An important rea-
son for his confidence is his belief “that the basic ideas of justice as fairness …
[are] implicit or latent in the public culture of a democratic society.”’74 Justice
as fairness, he believes, generalizes and makes explicit and more precise what
we already implicitly believe in such societies. If that were not so, it would lack
its power to justify. It would just be another philosopher’s construction.

It is vital to recognize how distinctive Rawls’ approach is here and how
distant it is from traditional moral and political philosophy or indeed from post-
modem iconoclastic political philosophies. As Rawls puts it himself, “the aim
of justice as fairness as a political conception is practical not metaphysical or
epistemological.”’75 That is to say, again in Rawls’ own words,

it presents itself not as a conception of justice that is true, but as one that can serve
as a basis of informed and willing political agreement between citizens viewed as
free and equal citizens.76

The agreement sought is actually “founded in public political and social atti-
tudes, which sustain the goods of all persons and associations within a just dem-
ocratic regime.’ 77

It is precisely here, Rawls maintains, where a principle of tolerance toward
philosophy and a studied philosophical neutrality is essential. To achieve the
kind of agreement that is necessary to justify such political moral beliefs, we
must avoid, as far as possible, all “disputed philosophical, as well as disputed
moral and religious questions. ’78 Rawls puts these contested philosophical,
moral and religious questions aside for reasons similar to Locke’s setting aside
religious questions in his defense of religious tolerance. He believes that, far
from being unimportant, these contested moral, religious and philosophical
views are far too important for us to allow them to be settled by fiat by some

73Ibid. at 229-30.
74Ibid. at 231.
75Ibid. at 230.
761bid.
771bid.
“Ilbid.

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RAWLS’ NEW METHODOLOGY

state or religious authority. We do not want them to be made a matter of author-
itative state declaration and policy. But he also realizes that there is no way to
resolve them in the public domain other than by such an authoritative, and
indeed in these domains, authoritarian fiat, as is done in Iran or Saudi Arabia.
In a complex modem culture there is no way to arrive at an unenforced and
unmanipulated resolution of such disputes. The range of our beliefs, the concep-
tions of how to live, are just too diverse for anything like that to be practical
unless it is imposed on us by a dictatorship. Understandably enough, Rawls
stands pat on his refusal to accept such an autocratic resolution as legitimate. If
that were the price we had to pay for such a resolution of these problems, we
should, for practical political purposes in the public domain, bracket them and
live without a resolution. There should be no authoritative public claims about
how best to live our lives. If we still want to attain agreement and to avoid the
autocratic use of state power, it will be necessary to apply the principle of tol-
eration, generated by Locke for religious views, to moral and philosophical
views, and to maintain, as far as public justification is concerned, a neutrality
vis-a-vis such philosophical and moral issues. Justice as fairness79 must delib-
erately stay “on the surface philosophically speaking. 80

Again sounding a fundamental liberal conviction, Rawls goes on to

remark:

Given the profound differences in belief and conceptions of the good at least since
the Reformation, we must recognize that, just as on questions of religious and
moral doctrine, public agreement on the basic questions of philosophy cannot be
obtained without the state’s infringement of basic liberties. Philosophy as the
search for truth about an independent metaphysical and moral order cannot, I
believe, provide a workable and shared basis for a political conception of justice
in a democratic society.81

This means that using what he calls his Kantian constructivism, he will try
to devise ways “to avoid philosophy’s long-standing problems.”82 Unlike J.L.
Mackie”3 or Simon Blackburn,’ on the one hand, or Bernard Gerts’ or Alan
Gewirthst on the other, Rawls will seek, in constructing his political account of
justice, to “avoid the problem of truth and the controversy between realism and
subjectivism about the status of moral and political values.””7 They are not said,

79The same would be true, on his view, of any comparable political conception of justice.
80Ibid.
81lbid.
2Ibid.
1
83J.L. Mackie, Ethics: Inventing Right and Wrong (Harmondsworth, U.K.: Penguin, 1977).
84S. Blackburn, “Moral Realism”, in J. Casey, ed., Morality and Moral Reasoning (London:

Methuen, 1971) 101.

85B. Gert, The Moral Rules (New York: Harper & Rowe, 1966).
86A. Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1982).
87Supra, note 13 at 230.

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[Vol. 35

let me repeat, to be conceptual confusions to be dissolved. No such
Wittgensteinian turn is implied. Rather they are, on Rawls’ conception, ques-
tions to be set aside in order to get a workable public conception of justice, con-
ceming which we could obtain in such a world, a rational consensus. Recasting
certain ideas embedded in the tradition of the social contract, his Kantian con-
structivism seeks “to achieve a practicable conception of objectivity and justi-
fication founded on public agreement in judgement on due reflection.””8 The
aim is, as he puts it, “free agreement” and “reconciliation through public rea-
son.”

89

VI. Some Elaborations: The Dewey Lectures

I have now set out Rawls’ methodological credo, his political conception
of a theory of justice, his rationale for the avoidance of philosophical issues and
his philosophical defense (to put the matter with deliberate paradox) for
avoiding philosophical issues in constructing a practically workable political
account of justice and related conceptions. Since there are various ways in
which Rawls’ account will be resisted, I wish to briefly elaborate this account
with some related but important supplementary remarks from his Dewey
Lectures. His responses to various standard philosophical moves reveal more
fully the power of his theory.

We look back, starting from his Kantian constructivist premises, at the
impasse which has spanned the last two centuries in our democratic culture. It
is an impasse over how our “basic social institutions should be arranged if they
are to conform to the freedom and equality of citizens as moral persons.”90
Rawls tries to dispel the conflict “between the different understandings of free-
dom and equality”‘” by using his form of contractarian method, which is an inte-
gral element of Kantian Constructivism. Concerning these different understand-
ings of freedom and equality “or natural variations thereof”’92, he stads by
asking: which, if any of them,

would free and equal moral persons themselves agree upon, if they were fairly rep-
resented solely as such persons and thought of themselves as citizens living a com-
plete life in an ongoing society? 93

“8Ibid.
“Ilbid.
9Supra, note 12 at 517.
91Ibid.
92Ibid.
93Ibid. at 517.

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RAWLS’ NEW METHODOLOGY

The principles they would agree upon, Rawls claims, would be the most appro-
priate principles of freedom and equality and, therefore, Rawls goes on to say,
to specify them is “to specify the principles of justice.”‘

Here again he stresses the practical and political nature of his endeavour:

We are not trying to find a conception of justice suitable for all societies regardless
of their particular social or historical circumstances. We want to settle a fundamen-
tal disagreement over the just form of basic institutions within a democratic soci-
ety under modem conditions.95

We seek here, Rawls tells us, “a practicable and working understanding on
first principles of justice” for limited rather than global or ahistorical purposes.
He remarks in a revealing passage:

The aim of political philosophy, when it presents itself in the public culture of a
democratic society, is to articulate and to make explicit those shared notions and
principles thought to be already latent in common sense; or, as is often the case,
if common sense is hesitant and uncertain, and doesn’t know what to think, to pro-
pose to it certain conceptions and principles congenial to its most essential convic-
tions and historical traditions. To justify a Kantian conception within a democratic
society is not merely to reason correctly from given premises, or even from pub-
licly shared and mutually recognized premises. The real task is to discover and for-
mulate the deeper bases of agreement which one hopes are embedded in common
sense, or even to originate and fashion starting points for common understanding
by expressing in a new form the convictions found in the historical tradition by
connecting them with a wide range of people’s considered convictions; those
which stand up to critical reflection.9 6

Further on, he stresses the constructivist side of his thought and makes
plain its distance from what could be called the tradition in moral philosophy.

The search for reasonable grounds for reaching agreement rooted in our concep-
tion of ourselves and in our relation to society replaces the search for moral truth
interpreted as fixed by a prior and independent order of objects and relations,
whether natural or divine, an order apart and distinct from how we conceive of
ourselves.

97

What justifies a conception of justice for us is

its congruence with our deeper understanding of ourselves and our aspirations, and
our realization that, given our history and the traditions embedded in our public
life, it is the most reasonable doctrine for us.98

941bid. at 518.
95Ibid.
961bid.
97Ibid. at 519.
98Ibid.

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Rawls will not utilize a moral realist conception of moral objectivity, a
conception subjectivists such as Edward Westermark,99 J.L. Mackie,” Gilbert
Harman”0 l and David Gauthier 2 accept as what it is for moral beliefs to be
objective, if indeed they really are or even can be objective. Subjectivists, of
course, do not believe that moral judgements are objective. But they agree with
the moral realists about what they must be to be objective. Rawls, by contrast,
sets aside any consideration of the objectivist’s claim that any moral beliefs
actually meet or even could meet that standard of objectivity. Subjectivists
believe that such a conception of objectivity neither is nor can be exemplified.
Rawls, by contrast, believes that Kantian constructivism has, at least for polit-
ical and practical purposes, a more adequate conception of morality and of
objectivity in which there is no talk of moral truth or of any conceptualization
of moral facts “apart from the procedure of constructing principles of justice”
for a constitutional democracy. Instead, “moral objectivity is to be understood
in terms of a suitably constructed social point of view that all can accept.”‘ 3 The
“all” presumably refers to people living in constitutional democracies or per-
haps to people not so placed physically but still with similar basic moral con-
victions rooted in a reasonable understanding of the cultural intent in such
democracies. But whatever its exact extension, the “all” is definitely limited to
a determinate and circumscribed group of people subject to the enculturation of
a distinct culture or cluster of cultures (i.e., the cultures of constitutional democ-
racies) at a given time and place. There is no grander, more ahistorical
Archimedean point to be had.

While Rawls takes his conceptions of justice and equality to be historically
and culturally circumscribed, and distant from moral realism (including the rea-
lists’ conception of moral objectivity), he still takes his principles of justice to
be authoritative. As he puts it at the beginning of his final Dewey Lecture:

A Kantian doctrine interprets the notion of objectivity in terms of a suitably con-
structed social point of view that is authoritative with respect to all individual and
associational points of view. 1

4

As he goes on to remark,

This rendering of objectivity implies that rather than to think of the principles of
justice as true, it is better to say that they are the principles most reasonable for
us, given our conception of persons as free and equal, and fully cooperating mem-
bers of a democratic society.105

99E. Westermark, Ethical Relativity (New York: Random House, 1932).
1Mackie, supra, note 83.
101G. Harman, “Is There A Single True Morality?” in D. Copp & D. Zimmerman, eds, Morality,

Reason and Truth (Totowa, N.J.: Rowman & Allanheld, 1985) 27.

102D. Gauthier, Morals By Agreement (Oxford: Clarendon Press, 1986).
l03Supra, note 12 at 519.
I41bid. at 554.
I0 5Ibid.

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Rawls’ approach –

and indeed any kind of Kantian Constructivism –

is
very different from that of traditional moral philosophers. Henry Sidgwick’0 6
and G.E. Moore”, as classical exemplars in moral theory, have an epistemolog-
ical foundationalism where the problem of justification in ethics is viewed as an
epistemological problem and the “methods of ethics” are defined “as methods
that seek truth.” Where we so proceed, we try to discover the true first principles
principles which would entail true moral judgements “that hold
of morality –
for all rational minds”.0 s In proceeding in this way, we should centre our atten-
tion on the “first principles of moral conceptions and how they can be
known.”” 9 Pluralistic deontologists like Ross”, Broad”‘ and Pritchard”2 differ
from Sidgwick and Moore in many ways but they are one with them in having
this same traditionalist conception of the role of moral theory. By contrast
Rawls, like John Dewey,”‘ thinks that this traditionalist stress has an unfortu-
nate effect. It, with its epistemological stress, tends to lead us away from atten-
tion to “the social role of morality” and from attention to human, practicable
conceptions of the person relevant to political and moral philosophy. As consid-
erable as Rawls’ admiration for Sidgwick is, it is, in his view,

characteristic of Sidgwick’s Methods that the social role of morality and the con-
ception of the person receive little notice. And so the possibility of constructivism
was closed to him.1 4

Rawls contrasts his Kantian constructivism with what he takes to be the
dominant tradition in moral philosophy coming down to us from Plato and
Aristotle, challenged by Hobbes” 5 and Hu’me” 6 , reformulated by Clarke” 7 and
Reid,” and defended most classically in near contemporary times in the utili-
tarianism of Sidgwick and Moore and the pluralistic deontology of Ross and
Broad. Rawls calls this view rational intuitionism and, in spite of the evident
differences of the views listed above, there is an important element they all have
in common and which distinguishes them all from both ethical naturalism
(including subjectivism) and Kantian constructivism. This element Rawls cap-
tures with his conception of rational intuitionism.

’06Sidgwick, supra, note 7.
’07G.E. Moore, Principia Ethica (Cambridge: Cambridge University Press, 1963).
’08Supra, note 12 at 555.
‘glbid.
“0W.D. Ross, The Foundations of Ethics (Oxford: Clarendon Press, 1939).
“‘C.D. Broad, Five Types of Ethical Theory (London: Routledge & Keagan Paul, 1930).
” 2H.A. Pritchard, Moral Obligation (Oxford: Clarendon Press, 1950).
” 3J. Dewey, Human Nature and Conduct (New York: The Modem Library, 1930).
“14Supra, note 12 at 555-56.
“5Leviathan (Harmondsworth, U.K.: Penguin, 1968).
” 6D. Hume, Treatise on Human Nature (Oxford: Clarendon Press, 1968).
” 7S. Clarke, On Natural Religion (Oxford: Oxford University Press, 1968).
18T. Reid, Essays on the Intellectual Powers of Man (London: Routledge & Keagan Paul, 1941).

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[Vol. 35

Rational intuitionism, in Rawls’ judgement, provides the most powerful
objectivistic rival explanatory and justificatory account of morality to his con-
structivism with its contextualistic conception of moral objectivity, i.e., its
moral objectivity without a commitment to moral truth. Rawls characterizes the
core of rational intuitionism as follows:

[R]ational intuitionism may be summed up by two theses: first, the basic moral
concepts of the right and the good, and the moral worth of persons, are not ana-
lyzable in terms of nonmoral concepts (although possibly analyzable in terms of
one another); and, second, first principles of morals (whether one or many), when
correctly stated, are self-evident propositions about what kinds of considerations
are good grounds for applying one of the three basic moral concepts, that is, for
asserting that something is (intrinsically) good, or that a certain action is the right
thing to do, or that a certain trait of character has moral worth. These two theses
imply that the agreement in judgement which is so essential for an effective public
conception of justice is founded on the recognition of self-evident truths about
good reasons. And what these reasons are is fixed by a moral order that is prior
to and independent of our conception of the person and the social role of morality.
This order is given by the nature of things and is known, not by sense, but by ratio-
nal intuition. It is with this idea of moral truth that the idea of first principles as
reasonable will be contrasted.’ 9

Rational intuitionism, in contrast with a view like that of Hobbes or Hume,
“tries to secure a kind of independence of the moral order from the order of
nature.”‘” Both Kant and Kantian constructivism reject ethical naturalism as
firmly as does rational intuitionism and it is because of this rejection of ethical
naturalism that Kant’s view, mistakenly according to Rawls, is simply taken to
be a form of rational intuitionism. What else could it be, it is natural to ask,
given its rejection of ethical naturalism? It is true that Kant and Moore are
agreed, contrary to ethical naturalists, that basic moral concepts can neither be
defined in terms of, nor are they conceptually identifiable with, non-moral con-
cepts such as pleasure, needs, interests or preferences. They further agree that
we do not identify what constitutes good reasons in ethics simply by identifying
what satisfies desire, meets needs, answers to interests or is a considered pref-
erence. Moreover, Kantians –
reject the
notion, seemingly implicit in all forms of ethical naturalism and actually explicit
in some forms of it, that moral judgements are to be treated as “statements about
l In a way that
the world on all fours with those of science and common sense.”
neither Kant nor Rawls can accept, these naturalistic “definitions combined with
the natural order itself, now come to constitute the moral order, which is prior
to and independent from our conception of ourselves as free and equal per-

and presumably Rawls as well –

“9Supra, note 12 at 557, emphasis added.
120Ibid. at 559.
1211bid.

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RAWLS’ NEW METHODOLOGY

sons.”‘ 22 This naturalistic format is rejected by both rationalistic intuitionists
and Kantian constructivists.'”

However, while both rational intuitionists and Kantian constructivists
reject ethical naturalism, the two views are equally opposed to each other.24
Constructivism and rational intuitionism are opposed no matter what the con-
tent of the rational intuition. It can be utilitarian, perfectionist or pluralist.” It
is the form of rational intuitionism that constructivists most fundamentally
oppose with its claim that moral principles are self-evident, synthetic, a priori
truths whose truth obtains by virtue of relations among the objects, the nature
of which is not affected or determined by any conception of the person or any
conception of the social role of morality. It is that metaphysical and epistemo-
logical position that sets it into conflict with Kantian constructivism. It is indeed
true that for rational intuitionism, as well as for Kant, though not for Rawlsian
Kantian constructivism, moral principles are synthetic a priori truths. Moreover,
for all forms of Kantian constructivism, as well as for rational intuitionism,
basic moral concepts are conceptually independent of natural concepts.
Nevertheless, rational intuitionism is as heteronomous as ethical naturalism. It
is only a little less obviously so. Rawls notes that Kant’s idea of autonomy
requires that there exist no such order of given objects determining the first prin-
ciples of fights and justice among free and equal moral persons. Heteronomy
obtains not only when first principles are fixed by the special psychological
constitution of human nature, as in Hume, but also when they are fixed by an
order of universals or concepts grasped by rational intuition as in Plato’s realm
of forms or in Leibniz’s hierarchy of perfections.”‘

Rational intuitionism requires only a very sparse conception of the person
as a self, simply viewed as a knower who just grasps self-evident moral truths
through intuition –
through some rather mysterious direct awareness. This is
so because, unlike in Kantian constructivism, the content of the first principles
is already fixed and the only requirements of the self are for it “to be able to
know what these principles are and to be moved by this knowledge.”‘2 Kantian
constructivism, by contrast, posits a richer notion of the person as more than a
mere knower. Instead persons are taken to be beings who view all normal per-
sons as members of a Kantian kingdom of ends, and thus as autonomous beings.
To draw out what is implicit in the very idea of being autonomous they must
also be viewed as both reasonable and rational. Keep in mind that by ‘reasona-
ble’ Rawls means in part persons who will accept fair terms of social cooper-

1221bid.
1231bid. at 559.
1241bid, at 558.
1251bid. at 559.
1261bid.
1271bid. at 560.

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[Vol. 35

ation provided everyone else accepts them. They operate in their lives, where
others do likewise, with ideas of reciprocity and mutuality. The belief and
expectation is that all who cooperate must benefit from the cooperation and
must, as well, share in its common burdens. 2 This conception of what it is to
be reasonable is clearly a normative notion rooted in common sense. In contrast,
to speak of the rational is to speak of “a conception of each person’s rational
advantage.”’29 Persons are rational “to the extent that sensible principles of
rational choice guide their decisions”. That is, they adopt the most effective
means of achieving their ends, they balance their various final ends “by the rel-
ative importance their ends have for their plans of life as a whole, and they seek
a cluster of ends which cohere with and support each other….. 3

In this way the concept of a person operative in Kantian constructivism is
a richer conception of the person than that of the person operative as a moral
agent. As such, persons in that construction are represented as having a free and
equal moral personality. 3′ In this Kantian conception these persons do not intuit
moral truths, including the first principles of justice. Instead the founding prin-
ciples of justice are the principles they would agree on when constrained to rea-
son impartially.’32

Rawls demonstrates a second and very fundamental contrast between an
epistemologically based foundationalist conception such as we find in Sidgwick
or Moore, or in our time in Bernard Gert’33 and Alan Gewirth”, and a construc-
tivist position such as his own. Rational intuitionism seeks to discover time-
lessly true fundamental moral principles, including principles of justice. For
rational intuitionists there are moral principles whose truth is discovered in
rational intuition. As we have seen, the “first principles of justice” are thought
“to represent or be true of an already given moral order.”’35 For constructivism,
by contrast, as we also have seen, first moral principles generally, and first prin-
ciples of justice specifically, are not discovered but constructed through impar-
tial reasoning as the result of rational deliberation and agreement under condi-
tions of equality and freedom. The new contrast Rawls highlights at this point
is in his claim that although the constructivist’s conceptions of justice will never
have the precision claimed by rational intuitionism, constructivism has no need
for such precision, even given the thoroughly questionable assumption that it is
attainable.

121lbid. at 528.
1291bid.
‘3lbid. at 528-29.
3’Ibid. at 560.
132Ibid. at 560.
133Supra, note 85.
134Supra, note 86.
’35Supra, note 12 at 560-61.

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The constructivist view accepts from the start that a moral conception can estab-
lish but a loose framework for deliberation which must rely very considerably on
our powers of reflection and judgement. 36
The principles of justice are not something fixed once and for all “but are
developed by a shared public culture and hence shaped by that culture.”’37 The
precision required in justice as fairness or any other properly constructivist
account, by contrast with the precision required by rational intuitionism, is sim-
ply that which will “achieve a public and workable agreement on matters of
social justice which suffices for effective and fair social cooperation.” 3′ As
Rawls puts it, the

essential point is that a conception of justice fulfils its social role provided that cit-
izens, equally conscientious and sharing roughly the same beliefs, find that by
affiming the framework of deliberation set up by it they are normally led to a suf-
ficient convergence of opinion.139
In making such claims Rawls is both setting himself against the tradition
and reaffirming his conception of justice as having a limited and practical role
in our political and moral lives. Justice as fairness is not viewed as providing
the Archimedean point it was once seen as providing. It is rather “framed to
meet the practical requirements of social life and to yield a public basis in the
light of which citizens can justify to one another their common institutions.”’40

VII. A Contrast Between Constructivism, Ethical Naturalism and Rational

Intuitionism

There is another contrast that is important to make between, on the one
hand, both rational intuitionism, when it takes either an ideal utilitarian or per-
fectionist form, and naturalistic forms of utilitarianism (e.g. Bentham) and, on
the other hand, Kantian constructivism. The former views, both intuitionist and
naturalist, in principle yield a determinate answer for all ethical and normative
political questions. In practice, as both Bentham and Mill saw, secondary rules
or maxims are needed as rules of thumb, but in theory where we have full
knowledge of the facts perspicuously represented and we are clear about the
correct deductions from our first principles, we can provide an answer to every
moral question. Kantian constructivism, like Aristotelianism, is more modest.
Rather

justice as fairness, as a constructivist view, holds that not all the moral questions
we are prompted to ask in everyday life have answers. Indeed, perhaps only a few

‘ 361bid.
1371bid.
1381bid.
139Ibid. at 561.
’40Ibid.

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[Vol. 35

of them can be settled by any moral conception that we can understand and
apply.

14 1

There is nothing like the principle of sufficient reason in morality.

Rawls’ principles of justice, as we have seen, apply to the basic structure
of society. We cannot generate from them answers to many specific questions
where issues of justice are raised. This is particularly evident when they are
questions of individual justice. Compared to utilitarianism and perfectionism,
the aims of justice as fairness are thus modest. Through Justice as fairness,
Rawls hopes

to identify the most fundamental questions of justice that can be dealt with, in the
hope that, once this is done and just basic institutions established, the remaining
conflicts of opinion will not be so deep or so widespread that they cannot be com-
promised. 142

Unlike utilitarianism whose working norms –

its secondary precepts –

are viewed as “approximations to something given”‘ 43 and whose first principles
are designed to represent moral truth, in constructivism the

idea of approximating to moral truth has no place … [the] parties in the original
position do not recognize any principles of justice as true or correct and so as ante-
cedently given; their aim is simply to select the conception most rational for them,
given their circumstances. This conception is not regarded as a workable approx-
imation to the moral facts: there are no such moral facts to which the principles
adopted could approximate. 144
While it would be misleading to say that Kantian constructivists invented
the principles of right or wrong or invent morality or justice, it is true that on
such an account the principles of justice are an outcome of a construction. The
“(most reasonable) principles of justice”, on Rawls’ view,

are those which would be adopted if the parties possessed all relevant information
and if they were properly to take account of all the practical desiderata required
for a workable public conception of justice. 14

5

These constructed principles, as illustrated by justice as fairness, single out
those facts which citizens in a constitutional democracy would count as reasons
of justice. However, to do that adequately the constitutional democracy in ques-

1411bid. at 563.
142Ibid. at 564, emphasis added.
143Ibid.
144Ibid. at 564. Even the pluralistic deontology of a W.D. Ross, while rejecting anything so deter-
minate as the decision procedure of the utilitarians, still believes that there is “a balance of reasons
each of which is given by an independent moral order known by intuition”, ibid. at 560. So even
here with this rationalistic pluralistic deontology there is a significant contrast with constructivism.
The intuitionist still allows an independent order of moral truth and ‘fact’ accessible to rational
intuition (a form of direct cognizing of moral truth).

145Ibid. at 565.

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RAWLS’ NEW METHODOLOGY

tion must be a well-ordered society. That, to put it conservatively, is an ideal-
ization of existing democracies. It would be unrealistic to claim that our actual
democracies are well-ordered societies. What reasons do we have then, to
believe that moral deliberation in our societies will yield the principles of justice
Rawls believes to be justified? Perhaps a fair reply on Rawls’ part would be that
he has still given us a correct picture of what a just constitutional democracy
would look like.

Again in contrast with rational intuitionism and ethical naturalism there is
for constructivism no reasons of justice “apart from the procedure of construct-
ing these principles….. 146 There is nothing there to be antecedently recognized
through intuition, observation or inference (as in hypotheses which are indi-
rectly confirmed) as the moral facts. Whether “certain facts are to count as rea-
sons of justice and what their relative force is to be can be ascertained only on
the basis of the principles that result from the construction.”’47 We can see from
this how pure procedural justice comes into play even at the highest level of
moral deliberation.

Rawls, unlike Habermas148, is not invoking some strange theory of truth to
account for moral reality. In fact, as if he had taken a leaf from Richard Rorty’49
and Donald Davidson5 ‘, he appears to neither have nor need any theory of truth
at all.

… no assumptions have been made about a theory of truth. A constructivist view
does not require an idealist or verificationist, as opposed to a realist, account of
truth. Whatever the nature of truth in the case of general beliefs about human
nature and how society works, a constructivist moral doctrine requires a distinct
procedure of construction to identify the first principles of justice.15 1

Again, Rawls’ account deliberately travels philosophically light, though it also
stresses the necessity of working with its own distinctive procedures where
issues of justice arise and how these procedures are distinct from scientific
experimental procedures. 2

Rawls believes that in selecting the first principles of justice for the design
of a just and well-ordered society there is no escaping a constructivist view. The
kind of objectivity that rational intuitionists and ethical naturalists desire does

1981).

1979).

1461bid.
1471bid.
148J. Habermas, Theorie des kommunikativen Handeln (Frankfurt am Main: Suhrkamp Verlag,
149R. Rorty, Philosophy and the Mirror of Nature (Princeton N.J.: Princeton University Press,
150D. Davidson, Truth and Interpretation (Oxford: Clarendon Press, 1985).
‘5ISupra, note 12 at 565.
152Here, at least on the surface, there is a considerable difference between John Rawls and John

Dewey.

REVUE DE DROIT DE McGILL

[Vol. 35

not exist, or at least we cannot assume it for developing a public philosophy
with a workable account of justice. Rational intuitionists and ethical naturalists
who are not subjectivists require an objectivity that would reveal an antecedent
moral order so that fundamental moral principles could be discovered, not con-
structed. However, the lack of this kind of objectivity does not mean that we do
not have in the domain of the moral and the political a perfectly ordinary con-
ception of objectivity, albeit of a somewhat different sort. Where a Kantian con-
structivism like justice as fairness yields

the first principles of a conception of justice that matches more accurately than
other views our considered convictions in general and in wide reflective equilib-
rium, then constructivism would seem to provide a suitable base for objectivity.15 3

We can neither get, it would seem, nor do we need any other kind of objectivity.
Coherentism here, as in many other places as well, does the justificatory job.
Rawls seeks to defuse the worry that on his constructivist account moral
are simply chosen by a kind

including first principles of justice –

principles –
of arbitrary choice:

[a] choice not based on reasons, a choice that simply fixes, by sheer fiat, as it were,
the scheme of reasons that we as citizens, are to recognize, at least until another
such choice is made. 154

Rawls argues that there are no such existential dilemmas in Kantian
constructivism.

The notion of radical choice, commonly associated with Nietzsche and the exis-
tentialists, finds no place in justice as fairness. The parties in the original position
are moved by their preference for primary goods, which preferences in turn are
rooted in their highest-order interests in developing and exercising their moral
powers. Moreover, the agreement of the parties takes place subject to constraints
that express reasonable conditions.155

Moreover, this is not the only way that choice is rationally constrained so that
it would not be correct to say it is a radical arbitrary Sartrean/Camusian choice.
It is indeed true that in

the model-conception of a well-ordered society, citizens affirm their public con-
ception of justice because it matches their considered convictions and coheres with
the kind of person they, on due reflection, want to be. 156

But the ideals of the person and of social cooperation here are “not ideals that,
at some moment in life, citizens are said simply to choose.”‘ 15 7 They are, or at

53Supra, note 12 at 568.
154Ibid.
I55Ibid.
1561bid.
’57Ibid.

1990]

RAWLS’ NEW METHODOLOGY

least they are for most people, ideals “that they have taken … in part from the
culture of their society.”’58

The key general question of justice for you and me, people living in flawed
constitutional democracies, which are not well-ordered societies, where our
public conception of justice is in dispute, are over whether the ideals embedded
in our model conceptions of justice, such as justice as fairness, “are sufficiently
congenial to our considered convictions to be affinned as a practicable basis of
public justification.”’59 (To whom does ‘our’ refer in this particular context?)
We must look at the various model-conceptions of justice and compare them
with the model justice as fairness and see how they stand here. However, when
we do so we are not making radical existential choices. Indeed we may not be
making any choices at all. If we opt for justice as fairness, it will be because we
have come to recognize that “this Kantian doctrine as a whole more fully than
other views available to us organized our considered convictions.”‘” When it
does so, if indeed it does so, in full wide reflective equilibrium it will correctly
be said to be the most reasonable construction available to us now. It is for us
standing where we stand, the most reasonable conception of justice.

To see in a further way how far Rawls’ view is from any form of decision-
ism or morality by fiat, it is also important to note, and take to heart, Rawls’
point about justice as fairness not excluding “the possibility of there being a fact
of the matter as to whether there is a single most reasonable conception.”” This
needs some explanation for on the surface it has the appearance of a flip-flop
on Rawls’ part. I shall come at this indirectly.

Constructivism is thoroughly fallibilistic.62 It does not presuppose that
there must be some such fact of the matter or coherent set of facts such that there
will be “only one most reasonable conception of justice.”’63 We may get such
such consensus – but then again we may not. We may instead
objectivity –
get several reasonable conceptions with no evident way of choosing between
them or at least with no decisive set of reasons to go for one rather than another
from amongst this reasonable range of choices. That probably is the more likely
eventuality. However, it is not unreasonable to believe that for a given type of

‘I8 bid. at 569.
159 1bid.
160lbid.
161Ibid.
162″Fallibilism” refers to a conception critical of both claims to Cartesian certainty and to rel-
ativism. It stresses that any belief is subject to possible undermining without it being the case that
beliefs are simply culturally relative or subjective.

163Supra, note 12 at 570.

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[Vol. 35

society in a given epoch, there might be a single most reasonable conception.

[I]t seems quite likely that there are only a few viable conceptions of the person
both sufficiently general to be part of a moral doctrine and congruent with the
ways in which people are to regard themselves in a democratic society. 64
Given the relevant general beliefs in the society, it may turn out that only
one of these conceptions gains a “representation in a procedure of construction
that issues in acceptable and workable principles of justice.”’65 But then we
would have a kind of fact-of-the-matter –
though different from that appealed
to by moral realism –
determining in a particular context what was the most
reasonable conception. It may not turn out this way; we can have no a priori
assurances here for there may be several seemingly equally reasonable concep-
tions or “it may turn out that for us, there exists no reasonable and workable
conception of justice at all.”‘ 66 If that last possibility were so –
and we can have
no guarantees that it will not be –
then, as Rawls puts it, “the practical task of
political philosophy is doomed to failure.”’67 That depressing possibility
remains a real one. Recognizing that there can be no guarantees here answering
to a quest for certainty is just what it is to be a fallibilist.

VIH. The Extent of the Method of Avoidance

Finally, Rawls does not conceive of himself as showing here, or indeed as
even trying to show, that rational intuitionism is false or somehow mistaken.
Again Rawls travels philosophically light. But he has shown, if his procedural
and programmatic arguments are near to the mark, that rational intuitionism is
dispensable if our aim is to get a politically viable conception of justice. That
is to say, we do not need it to construct a viable moral theory or political phi-
losophy for a constitutional democracy. Indeed it would only stand in the way
of developing such an account. We can get along well without it. Rawls says
that Kantian constructivism, as he develops it, “aims to establish only that the
rational intuitionist notion of objectivity is unnecessary for objectivity.”’68 He
even concedes, in accordance with his method of avoidance, that it is “always
possible to say, if we ever do reach general and wide reflective equilibrium, that
now at last we intuit the moral truths fixed by a given moral order.”’69 It is pos-
sible to say that, but unnecessary and misleading. A political philosophy should
set such matters aside. Moreover, it is unlikely that we shall ever achieve such
a stasis: such an utterly firm and unchanging wide reflective equilibrium that
will not in turn give rise to some disequilibrium requiring a new, and perhaps

’64lbid. at 569-70.
165Ibid. at 570.
166Ibid.
167Ibid.
1681bid.
1691bid.

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RAWLS’ NEW METHODOLOGY

better, equilibrium. This new equilibrium would be better because it would be
a wider equilibrium, taking more fully into account what we reasonably believe
to be true and genuine possibilities. Similarly it would gather more coherently
our diverse firmly entrenched considered convictions. A final unchanging wide
reflective equilibrium is too much like a Hegelian Absolute. We should instead
be firm fallibilists here.

It should also be said, as a further and distinct consideration, reinforcing
the claim that such talk of moral truth is unnecessary and misleading, that even
if we did attain such a firm wide reflective equilibrium, it would be less mis-
leading to simply say, with the constructivist, that “by all the criteria we can
think of to apply” our conception of justice “is now the most reasonable for
us.”’70 Talk of moral truths fixed by a given moral order adds nothing but rhe-
torical slush to those constructivist remarks.

If we achieve wide reflective equilibrium or some reasonable approxima-
tion of it, we have not arrived at an idea of objectivity given from the point of
view of the universe or from the point of view of nowhere. Rather the objectiv-
ity that we have is “to be understood by reference to [a] suitably constructed
social point of view.”” In Rawls’ construction, it would be “the publicly shared
point of view of citizens in a well-ordered society.”‘ 72 The principles that “issue
from it are accepted by them as authoritative with regard to the claims of indi-
viduals and associations.”’73 And it is a point of view which yields principles
that further everyone’s highest-order interests and define fair terms of social
cooperation among free and equal persons. “When citizens invoke these princi-
ples they speak as members of a political community and appeal to its shared
point of view either on their own behalf or on that of others.”’74 Thus, the essen-
tial agreement in judgements of justice arises not from the recognition of an a
priori and independent moral order, “but from everyone’s affirmation of the
same authoritative social perspective.”‘”5 If we can achieve such an agreement
we will have worked our way out of the current impasse in the “understanding
of freedom and equality which troubles our democratic tradition”’76 and, if we
do that, we will have completed an essential task for political philosophy in our
time.

77

170
Ibid.
‘7
11bid.
1721bid.
1731bid.
174
1bid.
175Ibid. at 571.
761bid.
1771bid. at 572.