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The Liberties of the Ancients and Moderns

in Rawls and Habermas

by

Steven Hendley

Birmingham-Southern College

900 Arkadelphia Road

Birmingham, AL

(205) 226-4793; [email protected]

In his recent review of John Rawls's political liberalism, Jrgen Habermas charges Rawls with privileging the liberties of the moderns over the liberties of the ancients, private over public autonomy. Offering his own version of moral and legal proceduralism as an alternative, Habermas argues that this approach is better suited to balancing the two liberties, of showing how they are derived, as he puts it, from the "same root".(1) In this paper I want to assess the cogency of this claim by examining Habermas's criticisms of Rawls as well as Rawls's response. Through this examination we should be able to see that though Rawls is unable to adequately answer Habermas's criticism he does succeed in showing how Habermas himself only manages to reverse but not overcome the problem he sees in Rawls, privileging now political rather than private autonomy. Both offer convincing reasons to balance our appreciation of the liberties of the ancients and moderns. But neither succeeds in offering an account capable of doing so. In conclusion, then, I will briefly explore the reasons for their failure, with special emphasis on the limitations of Habermas's proceduralism, in an attempt to just begin to glimpse the general direction in which we might proceed to realize their intentions more successfully.

Habermas bases his criticism of Rawls on what he characterizes as "the two-stage character of his theory", the way it begins with the hypothetical situation of the original position in which the principles of justice are chosen and only then moves, in degrees, to the actual circumstances of real citizens who must apply those principles to their situation. Granting that Rawls "proceeds from the idea of political autonomy and models it at the level of the original position" in the way the parties there must come to an agreement as equals, Habermas argues that political autonomy is only given a "virtual existence in the original position ... (which) does not fully unfold in the heart of the justly constituted society." Constrained as they are by the principles of justice decided by the hypothetical parties of the original position, citizens "cannot reignite the radical democratic embers of the original position in the civic life of their society." They "cannot conceive of the constitution as a project" which must remain "open and incomplete" as "shifting historical circumstances" demand. Instead of recognizing the way citizens must always come to reconsider the nature and extent of their private liberties and public responsibilities in the light of changing historical exigencies and insights, Rawls's theory of justice establishes "a priority of liberal rights which demotes the democratic process to an inferior status ... that constrain(s) democratic self-legislation ... prior to all political will formation."(2)

Moving to his own position, Habermas tries to show how his emphasis on democratic procedures can lead us to a more balanced account of private and public autonomy, one in which they "mutually presuppose each other." For a community can only legitimately regulate its common life by means of laws adopted in a democratic process in which all, as free and equal, have been entitled to participate, in which everyone can meaningfully view themselves as the authors of the laws to which they are subject. But this democratic process of law making presupposes the personal autonomy of citizens who cannot even "assume the status of legal subjects without subjective private rights". That is, citizens cannot stand in relation to one another as free and equal in a process of democratic law making without equal rights to personal autonomy which guarantee their integrity as free and equal in that process. In this way, the liberties of the moderns need not be construed as external constraints placed on the liberties of the ancients, as Habermas claims Rawls's does, but rather as the "necessary enabling conditions" of the latter, a constitutive dimension of what it means for a community to seek to legitimately determine its affairs for itself.(3)

Rawls responds with three points meant to clarify the status of political autonomy in his work. First, he seeks to correct what he claims is a misunderstanding on Habermas's part of the status of the stages in his account which are meant to describe "neither an actual political process, nor a purely theoretical one." Rather they are meant as a clarification of the types of "norms and information" which real citizens in civil society may consider relevant to their political judgements "depending on the subject and the context." Habermas's criticism overlooks what for Rawls is the "crucial point" that his account of justice is subject to "our reflective considered judgments". It is not, therefore, as if the principles of justice determined in the original position would constrain the democratic self-determination of a political community or demote the democratic process to an inferior status. They are merely recommendations as to how such a self-determining community ought to proceed with its political life, considering foundational questions from the point of view of what all could agree to under conditions which would guarantee equality and impartiality and other questions from other specified perspectives. The final court of appeal for the account of justice remains our considered judgments, the democratic deliberations of citizens in civil society.(4)

Next, he questions Habermas's charge that citizens under a just constitution "cannot reignite the radical democratic embers of the original position in the civic life of their society," that they cannot experience their constitution as a historical "project". For in "any actual society that is more or less unjust ... the ideal of a just constitution is always something to be worked toward." Indeed, the challenge under such circumstances is precisely as Habermas himself puts it, "a delicate and above all a fallible and revisable undertaking, whose purpose is to realize the system of rights anew in changing circumstances ...". But even under an ideally just constitution where there is no such work left to be done, citizens are not deprived of their public autonomy simply because they have the good fortune of inheriting a just constitution that needs no further work. "Are the citizens of Rousseau's society of The Social Contract," Rawls asks, "never fully autonomous because the Legislator originally gave them the just constitution under which they grow up?" Only exceptional historical circumstances make it necessary for a community to determine for itself the fundamentals of its constitutional system. This does not deprive others under less exceptional circumstances of their public autonomy, however, as long as they have appropriated for themselves the insights embodied in their otherwise just constitutions.(5)

Finally, Rawls takes issue with Habermas's claim that "basic liberal rights" in his theory "constrain democratic self-legislation ... prior to all political will-formation." To the contrary, Rawls emphasizes that his account "allows - but does not require - the basic liberties to be incorporated into the constitution and protected as constitutional rights on the basis of citizens's deliberations and judgements over time." Far from constraining democratic will-formation, basic liberal rights may only emerge as basic through an exercise of popular sovereignty.(6)

Concluding his replies on this topic, Rawls draws attention to the way justice as fairness understands public and private autonomy as "co-original and of equal weight" in the way they are listed together in the first principle of justice reflecting their roots in the idea of the two "moral powers" of the citizen on which Rawls's conception of justice draws: our "capacity for a sense of justice" and "for a conception of the good."(7) But where justice as fairness pays the liberties of the ancients and moderns equal respect in the way it pays respect to the two moral powers of the citizen in which they are rooted, Habermas's account, Rawls argues, fails to recognize their equality. Despite his intentions, Habermas privileges political over private autonomy in the way he derives the normative significance of private autonomy from its role as a necessary presupposition of our ability to exercise a legitimate political practice of self-determination through law. While granting Habermas's point, Rawls nevertheless insists that it is one-sided. We can only genuinely recognize the equal status of political and private autonomy by granting the independent basis for the worth of the latter in our respect for the moral power of the citizen to have and pursue his or her own conception of the good - as Rawls's account does but Habermas's does not.(8)

At first glance, it would appear that Rawls adequately defends himself against Habermas's criticisms. His theory is not intended as an end run around democratic sovereignty but as only a system of claims to be evaluated in and through the deliberations of real citizens in civil society. Justice as fairness is not exempt from but embedded in a larger context of democratic deliberation. That Rawls leaves the constitutional status of liberal rights unresolved in the original position is even further evidence of the important role of popular sovereignty for his theory of justice. But, on reflection, both of these points finally underscore the way Rawls's account is vulnerable to Habermas's criticism. We need to remember that the thrust of Habermas's criticism is not that Rawls does not intend to acknowledge the equal importance of political autonomy but only that his theoretical model fails to live up to that intention. Rawls's remarks on the way his theory is subject to "our reflective considered judgments", however, only confirms this point as it places the role of democratic deliberation outside the theoretical model proper in the reception of the theory by a community that would consider accepting it. This is consistent with Habermas's point that democratic self-determination is only given a "virtual existence" in the model itself. It is a point we who are considering the theory take for granted and must actually seek to embody in our deliberations but not one that is effectively modeled in the theory.

It is for this reason that the analogy Rawls draws between Habermas and himself on understanding the constitution as an open-ended "project" is a limited one. For Rawls the constitution can only be a project in the sense that, under any plausibly realistic circumstances, there will still be much work to be done in bringing society up to the standards of justice and in applying those standards to that still, more or less, unjust situation. The possibility is left open, however, for Rousseau's wise legislator to simply give people a wholly just constitution; a possibility that does not really make sense for Habermas as the legitimacy of any legal norm depends on the democratic process which permits those adopting it to understand themselves as authors of the law to which they are subject.(9) What insights we have into justice can only be gained in and through such an open-ended, fallible process, not handed down to us, even as an ideal possibility, from a purportedly wise legislator. It is this centrality of political autonomy that makes the constitution essentially a project for Habermas while its absence makes it conceivable, for Rawls, that it might not be.

This point is further highlighted by the place reserved for popular sovereignty in the determination of the constitutional status of liberal rights in the model itself. Though Rawls comes as close here as anywhere to meeting Habermas's objection he finally comes up short in the way his theory constrains popular sovereignty at this constitutional stage to the implementation of basic rights which have not only been decided previously in the original position but have been interpreted there as "primary goods" whose value lies in their importance for each individual's pursuit of a conception of the good;(10) an interpretation which effectively subordinates the significance of our basic rights to political autonomy to the service they render our pursuit of personal autonomy. Habermas gets at the basic problem here in another part of his critique of Rawls where he draws attention to how Rawls's model "assimilate(s) the deontological meaning of obligatory norms to the teleological meaning of preferred values."(11) Once again this is an unintended artifact of Rawls's theoretical model arising in the way it represents the parties to the original position as rational but not reasonable. By a "rational" agent, Rawls means someone with "the powers of judgment and deliberation in seeking ends and interests peculiarly its own", a capacity to choose effective means for our ends and to critically combine those ends into a coherent whole. By "reasonable" he means to refer to our readiness among equals "to propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so." The two terms refer, in other words, to the two moral powers of citizens for a conception of the good and a sense of justice.(12)

Both of these powers are represented in the original position but only the first is modeled in terms of its participants who are understood as rational agents in that sense. The second, our sense of justice, is modeled in the structural constraints of the original position which, by virtue of the veil of ignorance, situates all parties as equals, bound, therefore, to adopt principles that are fair to everyone as equals.(13) This means, however, that the participants must consider basic rights in terms of the goods that it would be rational for everyone to want to in order to advance their own conceptions of the good.(14) Hence, our rights to political autonomy, in particular, are judged solely in terms of how they stand to enhance our capacity to pursue our own good, our capacity for personal autonomy, in other words. This can be seen most clearly in Rawls's arguments for the priority of our basic rights to political autonomy which, consistent with the constraints of his model, all subordinate their importance to their functional significance in our pursuit of our own personal good.(15) In the final analysis, therefore, Rawls's account can only give voice to reasons for political autonomy that grant it an instrumental value in relation to personal autonomy, to reasons which regard it as "a means to a person's good."(16)

So it would appear that Habermas's criticism remains valid. But what of Rawls's counter-charge? Does Habermas prioritize political autonomy in a way which also belies his own intentions? Our first inclination, once again, may be to say no. Habermas himself warns us against "functionalizing all basic rights for the democratic process, since negative liberties also have an intrinsic value." Furthermore, in formally deriving a system of basic rights from the idea of democratic self-determination he begins with a "right to the greatest possible measure of equal individual liberties" which, because it is a necessary presupposition of individuals being able to address one another as free and equal legal subjects, must be prior to rights of political autonomy which recognize our capacity to then shape the law as its authors.(17) Both of these responses, however, miss the point. Though Habermas does grant a kind of priority to rights of personal autonomy in his formal derivation of basic rights, this sense of priority is ultimately secondary to the priority enjoyed by the idea of democratic self-determination from which the basic rights are derived. And it is one thing to say that personal autonomy has an "intrinsic value" and quite another thing to say why. Though Habermas undoubtedly intends to affirm the intrinsic value of personal autonomy his procedural understanding of democracy and law seems to leave him no basis for such an affirmation. It establishes an evaluative perspective that only makes room for the worth of what could contribute to the successful enactment of democratic deliberative procedures. His statement, therefore, comes as a bit of an afterthought with no clarification as to its grounds.(18)

Neither Rawls nor Habermas intend to subordinate either liberty to the other. Both recognize that, as Habermas emphasizes, a right to private autonomy can only legitimately be instituted in law through the democratic self-determination of a legal community and, as Rawls reminds us, the value of private autonomy cannot be reduced to its functional significance as a presupposition of political autonomy. Beginning, however, from a recognition of the foundational importance of democratic procedures for political legitimacy, Habermas is denied grounds for articulating an independent basis of worth for our private autonomy and, working from a theoretical model which grants only a "virtual existence" to political autonomy and constrains us to regard all rights as goods valued in terms of their importance to an individual's projects, Rawls cannot help but subordinate the worth of public to private autonomy.

Taking a step back from the intricacies of their exchange, however, we may obtain a better perspective onto what prevents a successful resolution of the problem by examining one of the concerns which motivate Habermas's move to a procedural account of law and democracy in his exchange with Rawls: his dissatisfaction with the way Rawls's theory relies on substantive normative concepts, in particular, "the concept of the citizen as a moral person" with a reasonable sense of justice and a rational conception of his or her own good which Rawls seeks to represent in the original position. This substantive assumption, he argues, "stands in need of a prior justification" and a demonstration of its "neutrality toward conflicting worldviews".(19) These concerns are misplaced, however, in the context of Rawls's problems with the liberties of the ancients and moderns. For however justified his suspicion of substantive normative assumptions in moral and political philosophy might be(20), this is not the source of Rawls's problems with balancing private and public autonomy. They stem, rather, from the way his theoretical model only grants a virtual existence to political autonomy and constrains us to understand it as a good in the service of private autonomy. If anything, the problem here is not that Rawls has made controversial substantive normative assumptions but that his model fails to adequately represent one of those assumptions, our capacity for a sense of justice in which, for Rawls, the value of political autonomy is rooted. Indeed, it would appear that Habermas only succeeds in reversing the problem precisely because he lacks, as Rawls points out, a substantive idea of how the value of private autonomy is grounded in our respect for the other moral power of citizens, their capacity to rationally pursue their own conceptions of the good. Lacking that Habermas lacks a basis for a sense of the intrinsic value of private autonomy, a sense of its worth that would not derive from the role it plays in democratic procedures of self-determination.

Thus, the problems that Habermas locates in Rawls's theory of justice regarding the liberties of the ancients and moderns do not, in and of themselves, justify his proceduralism. Rather, taken together with the problems Rawls finds in Habermas's efforts, they suggest the need for a theoretical model which can adequately represent political autonomy as the procedural grounds of legitimacy for any legal norm without ignoring the substantive normative assumptions behind our sense of the intrinsic value of private autonomy. Arguably, Habermas's proceduralism does a good job with the first task(21) but it cannot contribute to the second, raising the need for an account which can build on that proceduralism while also going beyond it, integrating it with an account of the sort of substantive normative concepts Rawls pays tribute to in his theory but fails to adequately represent.

Notes

1. Jrgen Habermas, "Reconciliation through the Public Use of Reason: Remarks on John Rawls's Political Liberalism", p. 127.

2. See Habermas, "Reconciliation", p.128-129. Also see John Rawls, "Reply to Habermas," The Journal of Philosophy, p. 151, for his understanding of Habermas's characterization of his theory as "two-stage" which I have adopted here.

3. See Habermas, "Reconciliation", p. 130 and Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans., William Rehg (Cambridge, Massachusetts: The MIT Press, 1996), pp. 118-131, especially, 128.

4. See Rawls, "Reply," pp. 151-153.

5. See Rawls, "Reply," pp. 153-156. The passage from Habermas cited by Rawls is from Faktizit?t und Geltung (Frankfurt am Main: Suhrkamp, 1992), p. 464.

6. See Rawls, "Reply," pp. 156-158.

7. See Rawls, "Reply," pp. 163-164.

8. See Rawls, "Reply," p. 169. For another statement of the same basic point against Habermas see Amy Gutman and Dennis Thompson, Democracy and Disagreement (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1996), pp. 17-18.

9. See, for example, Habermas, Between Facts and Norms, p. 121: "It is only participation in the practice of politically autonomous lawmaking that makes it possible for the addressees of law to have a correct understanding of the legal order as created by themselves."

10. Rawls understands "primary goods" to encompass those things that "a rational man wants whatever else he wants." (John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) p. 92.) Consisting of basic rights, liberties, economic opportunities and income, and the social bases of self-respect, the primary goods are those things that can be known to be good by the parties to the original position deprived as they are behind the veil of ignorance of their own conception of the good. For a more recent statement, see Rawls, Political Liberalism, pp. 179-181.

11. Habermas, "Reconciliation," p. 114.

12. Rawls, Political Liberalism, pp. 49-50.

13. See Rawls, Political Liberalism, Lecture II, #s 5-6.

14. See Rawls, Political Liberalism, p. 305 and 315-316.

15. See Rawls, Political Liberalism, Lecture VIII, # 6.

16. Rawls, Political Liberalism, p. 315. "the parties (to the original position) cannot invoke reasons founded on regarding the development and exercise of this capacity (for a sense of justice in which our rights to political autonomy are rooted) as part of a person's determinate conception of the good. They are restricted to reasons founded on regarding it solely as a means to a person's good."

17. See Habermas, Between Facts and Norms, pp. 418 & 121-123.

18. Elsewhere Habermas develops an account of morality as a shelter for our socially vulnerable identities on which he could draw as a potential resource to make up for this deficit with respect to the intrinsic value of private autonomy. (See, in particular, "Justice and Solidarity: On the Discussion Concerning 'Stage 6'," The Philosophical Forum 31 (Fall-Winter 1989-90): 32-52.) I do not consider this option here, however, for a number of reasons: 1) Habermas does not himself appeal to it in the context I am considering, 2) though complementary, it seems a distinct account of morality from the procedural account I am considering here, derived from Mead's account of the social constitution of personal identity rather than, as the one considered here, from what I consider to be the theoretical core of Habermas's moral and political proceduralism, his arguments for the universal validity of the "principle of universalizability" in "Discourse Ethics: Notes on a Program of Philosophical Justification" in Moral Consciousness and Communicative Action, trans., Christian Lenhardt and Shierry Weber Nicholsen (Cambridge, Massachusetts: The MIT Press, 1990), and 3) though it presents an insightful point of view onto morality it ultimately seems to betray the deontological dimension of his moral theory. For more on this last point see my "From Communicative Action to the Face of the Other: Habermas and Levinas on the Foundations of Moral Theory," Philosophy Today (Winter 1996), pp. 510-512..

19. See Habermas, "Reconciliation," p. 119. Habermas's specific objection to Rawls here dovetails neatly with his arguments elsewhere for proceduralism. At their base is a desire to avoid the sort of substantive assumptions that can only be controversial in an increasingly pluralistic context. See, in particular, Habermas's response to Charles Taylor in his "Remarks on Discourse Ethics" in Justification and Application: Remarks on Discourse Ethics, trans., Ciaran Cronin (Cambridge, Massachusetts, The MIT Press, 1993), pp. 69-76. For a more general perspective onto the way proceduralism fits in with his post-metaphysical understanding of philosophy, see his "Themes in Postmetaphysical Thinking" in Postmetaphysical Thinking: Philosophical Essays, trans., William Mark Hohengarten (Cambridge, Massachusetts: The MIT Press, 1992), pp. 28-53.

20. With this comment I mean to remain uncommitted, in particular, on the question of the validity of Rawls's arguments that his appeal to a substantive sense of justice is appropriate and that even Habermas cannot escape such an appeal. (See "Reply", pp. 170-180) Though I agree with Rawls on the need for substantive normative concepts in political philosophy my reasons here are not his. As to Habermas's more general reasons for his proceduralism, I believe they are also misguided and deal with that question elsewhere. (See my "From Communicative Action to the Face of the Other".) But those considerations are not immediately relevant to the argument I am developing here.

21. Elsewhere (see my "From Communicative Action to the Face of the Other") I argue that Habermas's proceduralism needs to be supplemented with a substantive account of the importance of that procedure, the point of engaging in democratic or, more generally, rational dialogue with others. Bringing that point together with the point I am making here I would want to argue that the most effective way to deal with this question of the liberties of the ancients and moderns would be to develop that substantive account in such a way that it established the importance of both political autonomy and private autonomy, the common "root" of our respect for both liberties that Habermas describes Rousseau, Kant, and Rawls (and, presumably, himself) all seeking. (See "Reconciliation," p. 127-128.) But that argument lies well beyond the scope of what I can hope to accomplish here. In this paper I am only trying to make a more limited case for supplementing Habermas's proceduralism with a substantive account of the worth of private autonomy alone.