aaron james, political constructivism foundations and novel applications

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Political Constructivism: Foundations and Novel Applications

Work in progress — March 09

Aaron James

UC [email protected]

What is “political constructivism”? And to what extent is it of general use to

political philosophy? My aim is to suggest that we can extract answers to these questions

from John Rawls‟s most clearly constructivist work, “Kantian Constructivism in Moral

Theory.” In particular, we can formulate political constructivism as a general approach

to political philosophy which is free from at least two limitations that Rawls himself

might otherwise seem to place on its potential scope.

The first is the special “political” constraints of the later Rawls‟s political

liberalism. Although “Kantian Constructivism in Moral Theory” foreshadows Rawls‟s

later political turn, it presents a distinct “pre- political” constructivist approach which was

at best implicit in the earlier A Theory of Justice. My question is what this distinct

approach is. The second limitation, which appears across Rawls‟s corpus, is that Rawls

never clearly formulates his constructivism independently of the specific social contexts

that interest him, the major institutions of modern constitutional democracies and modern

international law and practice.1

And it is not otherwise obvious how his specific accounts

should generalize into to other areas of social life. What their general, underlying

rationales might be and how if at all they apply is at best highly controversial. 2 Indeed,

according to one plausible view, sometimes suggested by Rawls himself, political

constructivism assumes certain “basic” structures, and so applies nowhere else. Unless it



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could be argued that the remaining areas of social life never raise relevant concerns of

social justice — a difficult sort of argument to make — political constructivism becomes of

at best of limited (albeit still significant) use to political philosophy.3

My more general characterization of political constructivism will allow it to have

broader application. As I will explain, the approach has fruitful application in at least

two important areas of world politics: the institutions that organize the global economy

(especially the system of trade), and international human rights-motivated interventions

other than the use of outright coercion and force (e.g. “jawboning“). Moreover, the

account allows us to situate the demands of the “political,” in Rawls‟s special sense, as

arising in certain special contexts, but not necessarily in any situation where questions of

social justice might come up. As will become clear, the key to a general understanding of

political constructivism is to develop the politically central form of practice-sensitive

argument, which remains, despite Rawls, poorly understood.

GENERAL ELEMENTS

The robust version of political constructivism I attribute to Rawls can be

expressed in the form of several meta-ethical, moral, and political/methodological

theses.4

The first, meta-ethical thesis is Protagorean Constructivism, which includes two

claims:

Meta-ethical Constructivism: Necessarily, an ethical proposition of the kind in

question is true, or a fact, if and only if (and because) anyone capable of

following the norms of practical reasoning would affirm it (as true) on the basis of



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valid, faultless reasoning, in conditions optimal for practical reflection.5

The Protagorean Constraint : Necessarily, the valid norms of practical reasoning

cannot outstrip human reasoning practice. If a putative norm is not generally

fulfilled in the human practice of questioning, attending, considering, and

deciding in matters of practical evaluation, it is thereby disqualified as a valid

norm of practical reasoning.6

This is not yet to single out any distinctive form of reasoning or judgment appropriate for

morality or social justice as compared to other ethical domains. According to

Moral Contractualism: social justice is part of the moral domain that T. M.

Scanlon calls “what we owe to each other.”7

The principles of social justice

depend on, and are a function of, conclusions of moral reasoning about what

normally conclusive regulative principles everyone can reasonably accept.

If this is to say that social justice is continuous with larger morality in certain important

respects, one can still hold that it is discontinuous in others. According to

Structuralism: collectively sustained and governed social practices or institutions

present a distinct occasion for public justification. Specifically, the question of

social justice — of what principles ought to conclusively guide collective

governance — is to be settled independently of the requirements of interpersonal



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morality.

But exactly how, beyond asking what is reasonably acceptable, is this distinct question of

justification to be resolved? According to

Conception Dependence: Reasoning about principles of justice is to be framed by

an independently defensible conception of their subject, e.g., the nature of the

institution or social practice in question.

And how is this independent conception to be explicated and defended? According to

Moralized Interpretation: Proposed conceptions of the regulated subject are to be

defended by moralized “constructive interpretation,” which both non-morally

identifies the object of interpretation and attributes to it implicit moral aims,

principles or self-understandings.

If the foregoing theses comprise the robust political constructivism I attribute to

Rawls, it is noteworthy what this leaves out: in its general form political constructivism

makes no essential reference either to original position reasoning, or to the special

“political” constraints of the latter Rawls‟s political liberalism. As I will now explain, we

see this in “Kantian Constructivism in Moral Theory” (hereafter KCMT), Rawls‟s most

explicit and unabashed constructivist work.8



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“KANTIAN CONSTRUCTIVISM IN MORAL THEORY”

In KCMT, Rawls says for the first time that A Theory of Justice (hereafter TJ)

presents a constructivist doctrine. The striking implication is that his domestic theory is

far more historically-specific and culturally-sensitive than TJ let on. It is addressed not

simply (as TJ explained) to the human condition, the Humean “circumstances of justice,”

the “general facts of men in society,” and an established “basic structure” of institutions,

but specifically to democratic societies, and, indeed, to a quite specific “impasse in our

political culture,” a “conflict between two traditions of democratic thought” (in

Constant‟s terms, the conflict between the “liberties of the ancients,” as emphasized by

Locke, and the “liberties of the moderns,” as emphasized by Rousseau). (KCMT 307)

This democratic preoccupation is not simply a practical application of TJ to going

concerns. Nor does it reflect the special demands of Rawls‟s later political liberalism, as

he had yet to recast his constructivism as a “political” doctrine in the sense which implies

neutrality as regards “comprehensive” philosophical or moral doctrines.9

Rather, it is

supposed to reflect nothing less than the “real task” of political philosophy, which is to

find “reasonable grounds for reaching agreement rooted in our conception of ourselves

and in our relation to society.” (KCMT 307) As Rawls explains, this task

…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. The task is to articulate a

public conception of justice that all can live with who regard their person and

their relation to society in a certain way. What justifies a conception of justice is

not its being true to an order antecedent to and given to us, but its congruence



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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. We can find no better basic charter for our

social world. (KCMT 307)

But why should the “real task” of political philosophy have this form? How

exactly can the truth about principles of justice for a certain social setting be other than

“fixed by a prior and independent order of objects and relations,” and instead decided by

what is “most reasonable for us”? And how exactly could what is “most reasonable for

us” depend on “how we conceive of ourselves,” as somehow informed by “our history

and the traditions embedded in our public life”? As I‟ll now explain, Rawls‟s answers

reflect each of the general theses stated above.

As regards the first question, Rawls, following Kant, is assuming what I am

calling Protagorean Constructivism, in contrast with the realist or “rational intuitionist”

view that ethical truth is independent of any idealized responses of practical reasoners.

This is especially clear in his a revision of KCMT, in PL, where he puts the relevant

thesis as a relation of “constitution”:

…the order of moral and political values must be made, or itself constituted, by

the principles and conceptions of practical reason… [The] order of values does

not constitute itself but is constituted by the activity, actual or ideal, of practical

(human) reason itself. (PL 99) [T]he affirmation of reason is rooted in the

thought and practice of ordinary (sound) human reason from which philosophical

reflection must begin. (PL 101)10

Note that, while this thought is partly captured by Meta-ethical Constructivism, that



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thesis is consistent with the view that all human attempts at practical reasoning are

radically in error, perhaps because they fall radically short of the true valid Platonic

Norms of Reasoning, or the norms or habits of reason found within the eternal mind of

God. But Rawls means to suggest (and attribute to Kant) the view that such brute error is

impossible, that is, what I am calling the Protagorean Constraint: valid reasoning cannot

outstrip human reasoning practice.

It follows that the task of political philosophy is not, as Rawls puts it, an

“epistemological problem” solved by discovery of a “prior and independent order of

objects and relations, whether natural or divine.” The task is to derive or “construct”

principles of justice (general ethical truths) by an active exercise of human practical

reasoning, which expresses the best understanding of that practice, and thus to in effect

“speak for humanity” about the issue of justice in question. Though one might be said to

“discover” “what any one would say” about the case hand after thinking about the matter,

there is no “independent order” to have knowledge of.

This of course raises large foundational questions.11 One of Rawls‟s major

innovations was to side-step them.12

No practice can be adequately interpreted or even

identified except by understanding it to a great extent from the inside.13

And there is no

need to seek, or even despair the lack of, a general and final conception of practical

reason if we can make significant gains in understanding its verdicts for specific areas of

human life. It is fine and profitable to put substantial, context-specific moral or political

philosophy first.

Yet, because Protagrorean Constructivism doesn‟t specify what form or method

of reasoning is appropriate in political philosophy, it does not imply or justify any



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specific conclusions or principles of justice.14

How then should we proceed? Rawls‟s

suggests (in the above quoted passage) that we consider what is most “reasonable for us.”

He explains by appropriating Kant‟s moral theory. “Kantian constructivism specifies a

particular conception of the person as an element in a reasonable procedure of

construction, the outcome of which determines the content of the first principles of

justice.” (KCMT 304) But why is a “reasonable procedure of construction” relevant from

a moral point of view? Kant of course makes strong claims about the autonomy and

moral dignity of persons. Yet this is not to say that any “reasonable procedure of

construction” will necessarily transfer moral content to any conclusions we reach. The

procedure of construction needs to be reasonable in a morally relevant sense, which

Kant‟s theory does not directly explain.

Here Rawls seems to be assuming a reasonableness notion of the sort that Scanlon

has explicated, following Rawls. According what I am calling Moral Contractualism, the

basic moral concern is “justifiability to each person,” where what is so justifiable depends

(in the sense of Meta-ethical Constructivism) on conclusions about what principles of

conduct each person can reasonably accept.15

Insofar as a “reasonable procedure of

construction” helps us reason about what is r easonably acceptable to all, then, it is

morally relevant. Its output can qualify as justice.

That is not to say it is justice, which brings us to a further important way Rawls‟s

reference to Kant is misleading. After the above passage, Rawls explains why his own

“reasonable procedure” of construction will, quite unlike Kant, make no attempt to derive

justice from a conception of rational agents taken by themselves:

On the Kantian view that I shall present, conditions for justifying a conception of



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justice hold only when a basis is established for political reasoning and

understanding within a political culture. The social role of a conception of justice

is to enable all members of society to make mutually acceptable to one another

their shared institutions and basic arrangements, by citing what are publicly

recognized as sufficient reasons, as identified by that conception. (KCMT 305)

In this sense, political constructivism justifies principles, by a “reasonable procedure,”

both for and from a contingent and independently established “basis,” which somehow

includes both “shared institutions” and an associated “political culture.” But why should

there be any such basis? Moreover, why this basis, in shared institutions and political

culture?

As to the former question, both Protagroean Constructivism and Moral

Contractualism allow different principles of regulation to have different “bases” if the

reasoning behind them specifies different conditions of application (different action types

or circumstances). There is no pressure to start out assuming that principles must apply

comprehensively, to any human affairs (e.g., as according to classical utilitarianism);

constructive reasoning can proceed in a piecemeal way.16

Indeed, Moral Contractualism

requires justification to be quite circumstance-specific. Because principles by nature

provide normally conclusive reasons for action, to independently specified agents, any

reasonably acceptable principles must be sensitive to a given agent‟s contingent powers

of self-regulation, including not only his or her material circumstances, but also his or her

capacities to intend, plan for, know, recall, conceptualize, and understand a proposed

expectation.

Yet, as his reference to “shared institutions” suggests, Rawls assumes the need for



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a “basis” far more “artificial” than so many individuals and their powers. Rawls is

assuming what I am calling Structuralism, the idea that collectively sustained and

governed social practices and institutions present a special occasion of public

justification, which cannot be addressed simply as matter of individual morality. Rawls

never provides fully general grounds for Structuralism, focusing instead on what is

special about the area of his specific concern, the “basic structure” of society.17

This has

opened Rawls to objections18

that he could have avoided if he had instead defended

Structuralism in general terms (of which more below).

Granting for the moment that the basic structure does present a special, essentially

public occasion of justification, how is justificatory reasoning to proceed? Rawls‟s

answer — which this time is truly appropriated from Kant — is what I am calling

Conception Dependence: reasoning about principles is to be framed by an independently

defensible conception of their subject. If our shared institutions are the relevant subject,

then assuming we can plausibly characterize ourselves and our society in certain general

terms —by certain “model-conceptions” (KCMT 307-8) — we can rephrase the question of

social justice in more specific terms, which lend themselves to more informative

reasoning, clearer competing answers, and more convincing reasons and verdicts. In

democratic society, Rawls suggests we conceive of persons as “free and equal moral

persons,” and society as a “publicly governed fair scheme of cooperation, for the sake of

mutual benefit.” In that case, we rephrase and thus “frame” the question, “What is a just

society?,” as the question, “What public terms of cooperation are fair among persons,

consistent with their remaining both equal and free?” It is in response to this more

contentful question that Rawls then “works out” the rest of his theory, including his list of



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“primary social goods,” the original position‟s design (e.g. who is represented, how much

the parties know, etc), and the resulting argument for his two principles.

If these last steps are familiar, I should emphasize that I am claiming that original

position reasoning is not a general element of political constructivism. It is a particular

form of Conception Dependence, a particular way of working out principles from a prior

conception of their subject. Reasonably acceptable principles for social structures can

also be defended directly (or “informally,” as Rawls sometimes puts it) within the

framework of Moral Contractualism, Structuralism, and Conception Dependence.

Indeed, Rawls‟s conception of human rights has precisely this form (of which more

below).

But can we say more in general terms about what Conception Dependent

reasoning involves? To answer, consider the status of the assumed conceptions of person

and society. Where do they come from? Rawls answers that, in democratic society, they

are implicit in its public culture. He explains:

The real task is to discover and formulate 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. (KCMT 306, PL 13-15)

Here Rawls is assuming what I am calling Moralized Interpretation. His framing

conception of the shared institutions in question is offered as moralized “constructive

interpretation” of the kind of social form democratic society is.19

The idea that society is



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a publicly governed scheme of cooperation, which is open to fairness assessment, makes

the best overall interpretive sense of our society‟s history, public texts and speeches,

avowed or assumed principles, specific institutions, legal and judicial practices, and so

on. Rawls tends to simply put forward his proposed conception in its most plausible form

instead of ruling out rival interpretive conceptions. But his proposal is in principle open

to thorough interpretive defense.20

That defense aside, Moralized Interpretation combines elements of two opposing

approaches. It is distinct, on the one hand, from pure interpretive views which attempt to

derive moral content solely from social interpretation.

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It also distinct, on the other

hand, from pure moral argument which merely applies to society what are seen as full

fledged abstract principles, without grounding their content at least partly in interpretive

claims about society‟s nature.22

Like the pure interpretive approach, any characterization

must initially identify the object of interpretation in purely non-moral terms, as a matter

of pure social interpretation (e.g. the “major institutions of modern society”). But like the

pure moral reasoning approach, it can also draw from substantial moral considerations in

characterizing the implicit moral content of given arrangements.

QUESTIONS OF RATIONALE

Even if I am right that KMCT contains the robust set of theses I have outlined,

that is not to of course say that a more modest collection of claims might not equally

deserve the name “political constructivism.” Indeed, one might object that one more of

the stated general elements are unnecessary, leaving a paired down but no less genuine

political constructivist approach. I want avoid the verbal issue of what to call “political



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constructivism,” but it is worth discussing several versions of this kind of objection —

what might be called the pairing down objection. This will allows us to consider specific

rationales for one or more of the general elements, as well as ways they are mutually

supporting. This will also bring out the distinctive aim of political constructivism in its

Rawlsian guise.

A first version of the pairing down objection asks: isn‟t the proposed meta-ethical

background itself sufficient for political constructivism, at least provided the trivial

assumption that matters of social justice fall within the ethical domain? In that case,

Protagorean Constructivism applies to justice as well. While this would strictly follow, it

remains true that any full defense of Protagorean Constructivism would require working

out a more specifically political approach. Should we admit that the general doctrine is

acceptable as a thesis which includes justice? Only if we have reason to think that our

standards of good practical reasoning somehow support plausible conclusions about

justice. Rawls‟s approach suggests this, but something lik e it must in any case make a

case.

Of course, the pairing down objection might instead reject the proposed meta-

ethical and moral background and instead offer more narrowly political constructivism

about social justice.23

One might, for instance, accept Structuralism, Conception

Dependence, and Moralized Interpretation and yet reject Protagroean Constructivism and

even Moral Contractualism. My answer is that one can in theory do so, but this is not to

say that the proposed constructivist meta-ethical and moral background is irrelevant. For

not any such background will do. On certain views, the reasoning required by

Structuralism, Conception Dependence, and Moralized Interpretation will not generate



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conclusions of justice: it won‟t speak for justice if ethical truth is a function of God‟s

commands and practical reason provides minimal revelatory insight. To be sure, some

non-constructive form of rationalism which places greater confidence in human reason

might indeed enable political philosophy as Protagorean Constructivism and Moral

Contractualism do. Yet this account needs to be provided. The two theses are

dispensable only if something comparable is put in their place. (And the same goes if we

also grant Moral Constructivism. If Protagorean Constructivism is rejected, something

comparable must be put in its place.)

Of course, among the general theses, Structuralism, Conception Dependence, and

Moralized Interpretation might seem most in need of justification. And, indeed, even if

we reject them, we might say that Protagorean Constructivism and Moral Contractualism

get us quite close to justice: we can see principles of justice as conclusions about what

principles for the regulation of behavior no one could reasonably reject. Why must

Structuralism, Conception Dependence, and Moralize Interpretation come into the

picture? Since these are central but poorly understood Rawlsian claims, we should

consider them in somewhat greater in detail.

WHY STRUCTURALISM?

A first version of this pairing down objection asks why we should accept

Structuralism. Why can‟t any principles of justice be derived from more basic principles

of interpersonal morality, principles which perhaps require practices or institutions for

their effective implementation, but not for their very applicability. Why should social

practices and institutions present a fresh occasion of public justification, which requires



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its own, independent principles?

One answer is as follows. Political philosophy is concerned with large-scale

patterns of distribution or conduct which are largely beyond the regulative control of

individuals as such. Such patterns must therefore be assignable as essentially collective

responsibilities, to collectively sustained and governed social practices or institutions

which do substantially control them, or else simply left to fate. When collective

attribution is defensible, as it often but not always is, this creates a “special” occasion of

justification, in at least the sense that the justification of individual conduct, as such,

cannot be the issue. Any choice of organization must be acceptable to everyone affected,

in light of its resulting distributions. But that choice cannot be a question of the

justifiability of individual conduct as such, since it is itself beyond any individual‟s

regulative control. It must therefore be a matter of collective governance.24

But why is this special occasion of justification also of a “public” kind, as

Structuralism claims? Rawls speaks of “publicity” in many senses, but at least two

minimal senses flow from the needs of collective governance. In general, normally

conclusive collective responsibilities are supposed to be of a kind which can in principle

be effective (barring extenuating circumstances) over how people govern a common

practice or institution over time. Any conception of justice which has this role is

answerable to certain essential preconditions, which include “publicity” preconditions

related to (i) the ongoing existence of the governed practice itself and (ii) its effective

collective governance by a conception of justice.

The first of these two preconditions relates to the conditions under which it is

possible for a social practice to exist over time. Because each of the individual agents



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involved themselves will have limited powers — and because there is no single irreducibly

collective mind — a practice will exist, and continue, only because different agents are

coordinated by interpersonal agreements or understandings. Whether in games,

families, or legally regulated social life, agents must be coordinated despite their

potentially divergent understandings, reasoning, and judgments. This requires (perhaps

imperfect) convergence on common rules, as common knowledge, but also convergence

on such less-readily-specified matters as: what their common association is, what its

mutually understood aims or organization involves, who is involved, what degree of

compliance exists, what considerations are relevant to the choice of structure, how

collective adjustments are to be made, who, if not everyone, is in charge, and so on. In

each such case, because distinct agents are involved, the relevant coordinative

understandings or agreements are essentially interpersonal. In that minimal sense, they

can be seen as an essentially “public” accomplishment.25

That not yet to say moral principles for such a practice must be in any sense

“public” as well. What it takes for a practice to exist and what a practice ought to be like

are different things. But if the “ought” in question is that specified by normally

conclusive regulative principles, our second precondition does limit what principles could

be like. Principles have to be of the general sort that can effectively govern the collective

to which they are addressed. And this in turn requires that the principles themselves be,

at least to a certain degree, part of the sustaining coordinative understandings. Rousseau

might here invoke a substantial ideal collective self-governance. But I suggest that here a

less substantive, more Hobbesian thought will suffice: if there is too much disagreement

about what the conclusive regulative principles are, beyond finer points of interpretation



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or implementation, the proposed principles cannot be effective as a form of collective

regulation. Without public understandings (even if not those given by a sovereign‟s

rule), the agents are returned to a (perhaps benign) non-collective “state of nature” in

which each relies only on his or her own “private” judgment.26

Regulative principles of

justice must then be, to a certain (perhaps limited) degree, not only acceptable but

publically accepted.27

WHY CONCEPTION DEPENDENCE?

Even if we should therefore accept Structuralism, the question remains why

Conception Dependence and Moralized Interpretation should be necessary. Along with a

suitable meta-ethical and moral background, such as Protagorean Constructivism and

Moral Contractualism, it implies a form of moral constructivism concerned with

collective governance: we construct principles of what we owe to each other, for contexts

of collective governance, based on claims about what people could reasonably reject.

Why not regard these as principles of justice? What is Conception Dependence also

needed? I will suggest two reasons. First, Conception Dependence follows, if not by

entailment then by natural elaboration, from the other theses in the constructivist package

I have outlined. Second, it is in any case necessary insofar as political philosophy aims to

address central, essentially “normative” questions of social justice. This last

consideration will explain why Moralized Interpretation has an essential role.

To start with the first of these considerations, notice that Protagroean

Constructivism implies that normative political philosophy is an essentially interpretive

enterprise. To characterize a principle of justice is in effect to offer an interpretation of



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human reasoning practice, which is accountable in principle to the reasoned judgments

others would make, to a common sense. Moral Contractualism in turn adds that any

principles of justice must be justified in light of further interpretive judgments. As

normally conclusive principles for a specified type of agent, their content must be

informed by morally informed interpretive claims about the agent‟s general capacities to

govern his or her conduct in practice. In particular, principles cannot be so specific, or so

vague, that they are impossible or unduly difficult to follow. What is not too specific, or

too vague, but rather just right in level of abstraction, is in part a matter of basic

interpretive judgments about what people can conceptualize, recall, plan for, and act on,

under different assumed circumstances. Finally, Structuralism implies that the relevant

addressed subject will be a collectively governed social practice or institution, and so that

any justification of principles must be sensitive not only to the given capacities of

collective regulation, as identified by interpretive judgments, but also to our two publicity

preconditions. That is, as a matter of existence conditions, any justification will depend

on interpretive claims about what coordinative understandings are essential for the

ongoing existence of the kind of practice in question, including its basic understood

purposes, and main organization forms, as rationalized by those purposes. As a matter of

effectiveness conditions, the class of eligible principles will be delimited by interpretive

judgments about whether there exists, within the essential coordinative understandings,

the background of substantial agreement needed for principles to govern the collective

effectively.

Taking all this for granted, Conception Dependence follows provided a single

further assumption: that only a shared conception provides the necessary background of



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agreement . That is to say: only principles which are justified in light of a shared

conception of the practice in question, as attributed to the group by interpretive claims

about what its members explicitly or implicitly assume, will be adequately based in the

background of agreement needed for effective collective governance. Indeed, still

weaker assumptions will do. A weaker version holds that a shared conception is not

necessary for effective collective governance generally, but that it is necessary over the

issue-areas in question (e.g., the “basic” organization of the practice in question). And

according to a version which is weaker still, such an interpretive conception is merely

sufficient to provide the necessary background of agreement. Even if it is perhaps not

strictly necessary, it might be necessary presumptively: a case would have to be made

that an adequate background of agreement is otherwise available.

The question, then, is why some such version of this assumption should be

granted. The answer, I take it, is that it is necessary if principles of justice are to be

“normative” in a sense closely associated with the central form of political argument that

Rawlsian political constructivism seeks to characterize.

The general aim of political constructivism, we may say, is to develop a quite

pervasive form of political argument which draws from agreed upon conceptions as much

as pure moral argument. Rawls appeals to quite sweeping conceptions of persons and

society in his argument, but framing interpretive “conceptions” can be, and often are,

specific as well. Arguments about moral rights of due process, for example, depend as

much on claims about the nature of institutional authority — its essential purposes,

tendencies to be abused, the feasible protections available — as on claims about the

wholly independent interests or claims of subjects. Similarly, consider arguments about



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what moral rights a society should, or should not, constitutionalize. These are not direct

appeals to pure moral considerations, but rather arguments about what rights should be

largely taken off of the political and legislative table — a quite specific governing role.

More generally, much of political morality presents principles — e.g., ideals of equality or

opportunity — as though they are widely recognized and definitive of the political

community in question, instead of simply citing moral principles from scratch. To cite

the Declaration of Independence is not simply to cite the substantial values affirmed

there, but also their founding role, as publicly declared and continually accepted. (The

phrase “we hold these truths to be self -evident” may not imply a substantive claim of

self-evidence, but rather a declarative affirmation that they are and shall be held as self-

evident, i.e., in need of no further justification, for practical purposes.) Yet in all such

cases, the argument is a specifically moral argument; it cannot, in its common usage, be

reduced to any set of purely legal or sociological claims. It is an argument about what

ought, morally, be done within the social or institutional context in question.

One distinctive mark of this form of argument is that it purports to be “normative”

in at least two ways that appeals to pure moral values need not be. Proposed principles

are “normative,” first, in the sense that, insofar as they are justified, one cannot reject

them as inapplicable (e.g., as “fine for a perfect world,” but nowhere else). Since they

are justified specifically for the social context in question, under a putatively agreed-upon

conception of the relevant subject, this objection simply fails to understand the kind of

argument on offer. Second, justified principles are “normative,” in the sense that one

cannot deny their conclusive significance for social choice (e.g. as “a nice ideal” for us

but not what we ought to do). If a proposed argument has not successfully justified



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normally conclusive principles for the political context in question, it has failed on its

own terms.28

In both cases, the purported principles are assumed to count as normative

because they are appropriate for the structure in question, as justified under a conception

of the sort of structure it is.

WHY MORALIZED INTERPRETATION?

This allows us to answer the final pairing down objection we will consider. Why

Moralized Interpretation? Though nothing we have said strictly implies, it is clear

enough that nothing else will do. We‟ve already said why pure moral reasoning is

insufficient. Normative principles need to be justified for the structure for which they are

normative, in light of interpretive claims about what the relevant form of collective

activity is, as identified by its aims and characteristic organization. Again, given

Conception Dependence, the framing conception must be attributable to the practice or

institution at issue. But the necessary attributing interpretive claims cannot be justified as

a matter of pure social interpretation, either. No set of purely social interpretive claims

justify a moral principle without moral assumptions. And even if they are meant simply

to characterize the context of a principle‟s application, what features of a social form are

relevant is itself a moral matter. Thus the need for an intermediate position, Moralized

Interpretation, which makes interpretive claims but is informed by moral judgment.

Again, like the pure interpretive approach, any characterization must initially

identify the object of interpretation in purely non-moral terms, as a matter of pure social

interpretation (e.g. the “major institutions of modern society”). But like the pure moral

reasoning approach, it can also draw from substantial moral considerations in



22

characterizing the implicit moral content of given arrangements. There need not be any

bright line between substantive moral judgment and moralized interpretive attribution.

Consider how Rawls slides freely from mention of considerations already “embedded in

common sense” to arguments that “originate and fashion starting points for common

understanding”—although these, too, must be “found in the historical tradition” or at

least connected with “a wide range of people‟s considered convictions: those which stand

up to critical reflection.” (KCMT 306) Thus the proposed moral considerations or

conception may only find explicit acceptance once they are clarified and critically

reflected upon, being merely “implicit” before that time. The key is that anything we say

along these lines must be credible, where the standard of credibility and ultimate success

involves both normative and interpretive perspicuity. A proposed moral conception

could be plausibly rejected as inappropriate based on highly credible interpretive claims

about the non-morally identified object of interpretation. Yet proposed interpretive data

could also be discounted or marginalized based on substantial moral considerations

which have broad moral appeal and a distinct interpretive grounding. As always with

interpretation — in art, literature, or law — the best conception is that which makes the

most overall sense of its object, according to a range of relevant criteria.

Thus political constructivism offers political philosophy a way of systematically

engaging the reality of political life and debate in a way which promises to yield deep and

generally applicable but strongly “normative” principles for social choice. This means

that political philosophy has to deal with both messy questions of social interpretation

and the complex extenuating circumstances and the delicate balance of values attendant

to any issue of social choice. But why should political philosophy be anything less? One



23

can of course be skeptical whether the needed interpretive or moral arguments will often

or ever be available. But, again, such skepticism need not debilitate political philosophy;

it is simply an occasion for turning to particular areas of social life and seeing how far the

argument pans out. And political constructivism does provide a framework for managing

the interpretive and moral complexity of a given case, in a way which allows one to both

capture the strengths of opposing arguments and isolate their differences.

One quite general worry is that any such approach is objectionably biased toward

the status quo. The view that all moral principles require defense as a matter of pure

social interpretation would clearly leave insufficient room for moral criticism. In effect,

judgments of injustice reduce to claims of internal inconsistency. Why should Moralized

Interpretation be different? There is little need for concern if our interest lies not in what

should be done here in the actual world. Then the necessary social interpretation is a

simple matter of hypothetical stipulation: we specify the context and social form we are

interested in and go from there. Normative principles addressed to actual agents are,

however, accountable to what their existing social forms happen to be like. Does this

mean that reasoning about justice will inevitably be too constrained by the very social

realities which are supposed to be in question?

Not necessarily. Elsewhere I explain in detail how political constructivism has

significant critical resources. The question is not whether there is any special status quo

bias problem, but rather whether a reality-sensitive theory is adequate, all things

considered.29

For present purposes, it suffices to say that political constructivism‟s

critical resources run quite deep. How deep they run depends on how we answer two

questions: (1) How minimal are the necessary pre-conditions for proposed principles?



24

and (2) How relaxed are the relevant cannons of interpretation for attributing those pre-

conditions to a given group? If the relevant preconditions are minimal, and the relevant

cannons are lax, political constructivism is quite consistent with deep constructive

critique. We can then say, for example, that Rawls‟s theory does not require a

specifically democratic society, because its minimum social pre-conditions can be

credibly attributed to most any human society.30

The needed understandings are perhaps

clearly manifest in societal consciousness and politically effective only after a long

historical process of injustice, reform, and increasing collective self-understanding, yet

there all along.

31

In this case, Rawls‟s democratic focus simply gives his ambitious

argument a modicum of interpretive modesty, making it easer to defend.32

The still more

ambitious (e.g. Hegelian) political constructivist will dig more deeply into the social

firmament.

So we can view political constructivism as capturing a distinctive form of political

argument, and in this way making a contribution to political philosophy. That is not,

however, to say it is broadly applicable — that it can be anything more than a small part of

political philosophy‟s concerns. Even if we go so far as to grant that Rawls has given us

constructed principles for his focal areas, the question remains whether the more general

methodology of justification has fruitful application elsewhere. Does it also apply to

other politically important areas of social life, for instance, the global economy, or

contemporary international human rights practice? I now explain how it does apply in

both cases, taking each in turn.

FAIRNESS IN THE GLOBAL ECONOMY



25

Although the global economy receives at most passing attention in Rawls‟s

international theory, it is now among the foremost concerns of world politics. This is not

only because of the ongoing global financial crisis, but because of long-standing moral

questions about trade law and policy and, more generally, about how to manage a world

of both political decentralization and ever-increasing but partial economic

interdependence. How do we construct principles of justice for this situation? In using

the constructive method as outlined above, we start by trying to indentify a plausible

social or institutional subject of regulative principles (Structuralism) which can be

morally characterized (Moralized Interpretation) in a way that frames the question of

principle (Conception Dependence).

Thus I suggest (and argue elsewhere) that the global marketplace is and for the

foreseeable future will be fundamentally organized and shaped by an international

market reliance practice, for the sake of mutual national income gains (via production-

enhancing specialization).33

The basic practice, whereby countries mutually rely on

common markets (in goods, services, or capital), is to be distinguished from particular

market transactions, transactional flows across borders, as well as particular trade or

trade-related policies (tariffs, quotas, safeguards, subsidies, etc.) that influence

transactional flows. The practice is also distinct from, but more closely related to, formal

trade law (e.g. World Trade Organization rules), other international agreements or

expectations (e.g. concerning capital controls or stimulation-geared public investment),

and informal understandings of how the balance between market and state is to be struck

(e.g. the post-war “embedded liberalism” compromise). Such rules or understandings

represent substantial market reliance expectations, the terms of participation in the larger



26

market reliance practice, but not the larger practice itself. The practice itself is the

underlying social fact that countries do comply, more or less, with some system of market

reliance expectations, for the sake of larger, mutually shared ends.

This characterization so far identifies a collectively governed social structure (in

accord with Structuralism) as the object of interpretation, in non-moral terms (as

Moralized Interpretation initially requires). We can now add a framing moral

characterization of this structure (in accord, again, with Moralized Intepretivism and

Conception Dependence): the international practice of market reliance represents a

(formally and informally) governed cooperative scheme for mutual benefit, which, as

such, raises questions of fair distribution. This is an interpretive claim, I suggest, because

it can be defended as implicit in international intellectual and political culture. Talk of

“fair trade” and “reciprocity” is the basic currency of moral argument in the trade

context. Its significance is strongly represented in classical and popular “mercantilist”

thought and argument. And, as the following considerations suggest, it even appears,

albeit more implicitly than explicitly, in classical trade theory. Although trade theory has

often emphasized the unilateral benefits of trade and reluctantly used fairness discourse,

it has always explained its value in terms of ongoing, long-standing mutual and

cooperative liberalization among countries.34

The reluctance to engage in fairness

discourse and discuss “relative gains” has long been a reaction to mercantilist abuses of

these notions that threaten to destabilize the cooperative liberalization practice. Indeed,

the central economic doctrine of “comparative advantage” is precisely the claim that

trade represents mutually beneficial specialization.35

Finally, more recent arguments that

treat trade as a mere means to utilitarian efficiency were not central to the founding



27

Keynesian vision of the post-war economic system. And while they have surely had

some influence, they have rarely determined the system‟s subsequent adjustment

(something ideological economists constantly complain of).

What is less clearly implicit, and more a matter of deep presupposition, is the

specific form that basic normatively conclusive mutuality and fairness concerns take. I

suggest that that the central such moral issue is that of international structural equity in

how the market reliance practice is organized, especially in light of how rules or

expectations distribute the harms of the practice to individuals (e.g., unemployment,

wage suppression, and income volatility) and countries (e.g. suppressed growth due to

foreign financial crises), as well as the practice‟s intended benefits (e.g. the “gains of

trade” such as increased income due to allocative efficiency, economies of scale, and the

spread of technology.) This concern can be seen as a (relatively) basic issue of fairness

in the sense that we can illuminatingly characterize a wide-range of other fairness

concerns with reference to it, including such politically salient notions as “non-

discrimination,” “special and differential treatment,” “fair trade,” “fair play,” “fair

competition,” “level playing fields,” “equitable growth,” “fair wages,” and

“exploitation.”36

But how might this conception of the fairness issue frame reasoning about social

justice (as required by Conception Dependence)? It does so by shaping both the form

that regulative principles take and the kinds of interests or claims that are relevant to

fairness argument.37

For one thing, if principles are addressed as regulative principles,

then they are addressed to the types of agents that primarily govern the international

economic system, that is, countries and their representatives. The principles are not



28

primarily addressed to market actors such as individual consumers, but to those who

shape the institutional context for market relations. Moreover, as I understand it, the idea

of structural equity is generally concerned only with the types of benefits and burden that

the cooperative practice creates. Thus, while the harms created can befall individuals, in

a way that gives individuals, as such, claims to compensation, the distribution of relative

gains takes an international form. The aim of trade is generally the creation of country-

level (aggregate or average) benefits, such as national income gains. So such national

gains are the goods relevant for comparative, egalitarian claims. We can, by contrast,

imagine a conception of fairness which instead makes egalitarian demands of a

“cosmopolitan” or “global” kind, allowing direct comparison of the relative gains or

losses to any two individuals, now matter where they live. My present claim is that this

view would not be grounded in a conception of the social structure under review. It

could not plausibly be regarded as the result of Moralized Interpretation as applied to the

trade context: its organizing aims and structure are too deeply international for that.

The remaining stage of argument is to propose and justify substantial fairness

principles, on the grounds that they are regulative principles which everyone can

reasonably accept. I won‟t make such a case here.38

For present purposes the crucial

point is that this argument does engage in straight moral reasoning about what is

reasonably acceptable in the specified context, given relevant extenuating circumstances

and the balance of relevant interests and values. And, as suggested above, while we

might run an international original position — we ask what international principles people

ignorant of their positions would accept, given their interest in protection against global

economic forces, and in living in a society that sees the gains of integration — this is not



29

essential. The argument can be made in “informal” terms, which directly address the

question of reasonable acceptability to all. Insofar as principles can be justified as

reasonably acceptable for the international market reliance practice, we may (given

Protagorean Constructivism and Moral Contractualism) regard them as general truths

about what justice requires in the global economy. Indeed, insofar the justification

appeals to grounds that do not assume further regulative principles (e.g. we assume only

the interests briefly sketched above), the principles justified count as fundamental

principles of justice for the trade context. They apply, as normally conclusive demands,

even if we assume no further human rights or global justice principles.

MULTI-FUNCTIONALISM ABOUT HUMAN RIGHTS

If Rawls paid at most passing attention to the global economy, our second fresh

context for construction starts from Rawls‟s quite developed account of human rights in

The Law of Peoples. Rawls‟s interest is in what he calls “international law and practice,”

which is both a kind of governed social structure (in accord with Structuralism) and

initially identified in non-moral terms (Moralized Interpretation).39

Given ideas found in

international political culture (Moralized Interpretation again), Rawls then presents

international law and practice as a “society of peoples” whose defining goals are the

absence of war, universal basic social justice (“decent” domestic institutions), and mutual

respect for societal collective self-determination. This conception (given Conception

Dependence) in turn shapes both the form and output of original position reasoning — e.g,

the parties represent not individuals but whole societies, and choose essentially

international principles — as well as his independent account of human rights. Given the



30

appropriate arguments of reasonable acceptability, then, we can conclude (given

Protagorean Constructivism and Moral Contractualism) that the proposed principles are

general truths of justice for international relations.

I focus here on Rawls‟s independent account of human rights. It is independent

of original position argument, because, although parties behind the veil of ignorance

agree that societies are to respect human rights, this merely reflects the sorts of societies

represented: only “decent,” human rights-respecting societies are included. What

societies count as “decent,” and so what rights count as human rights, is a separate issue,

which Rawls resolves by way of a distinct Conception Dependent argument. The

argument starts with a conception of the special governing role of human rights in

international law and practice, and then justifies a favored list of rights (a set of

principles) based on that functional conception. Specifically, the primary and indeed the

only proper function for human rights claims in world politics is the legitimation of

coercive military or economic intervention in a society‟s internal affairs, intervention

which would otherwise be impermissibly disrespectful or intolerant of a society‟s self -

governed decisions. (This conception Rawls accepts as a matter of Moralized

Interpretation.) The class of human rights is, then, the “special class of urgent rights”

which it is not disrespectful or intolerant to enforce, by force or coercion, for the sake of

basic societal justice. Because this burden of justification is difficult to meet (especially

for liberal societies which are constrained by their own ideals of tolerance), Rawls‟s list

of genuine rights is short, including only limited rights to life, liberty, personal property,

and formal equality.

Many have found this too account too minimal, though there is a serious debate to



31

have whether this is the case.40

Whatever we say about this larger debate, there is reason

within political constructivism to consider a more inclusive account. A constructivist

theory of the general sort Rawls proposes is chiefly appealing because it promises to

illuminate the dominant moral vocabulary of our time. It hold this promise in part

because it lacks the tendency of natural rights theories to stack the deck against widely

recognized human rights that are not clearly “natural” in any pre-political or pre-

institutional sense.41

But because Rawls‟s account asks us to regard all but a short list of

rights as not really human rights, it cannot be said to illuminate how human rights

discourse could legitimately function in more or less the way it does now function on the

global scene. The account instead suggests that the human rights movement has

dramatically overstepped its proper basis.

Political constructivism can instead take a more progressive form, as follows. We

agree that the issue is not what is owed to the human being as such, even in a state of

nature, but rather what rights could properly have a regulative role in international law

and practice (in accord with Structuralism) as legitimacy conditions for presumptively

sovereign states. But contra Rawls, we characterize that role (as a claim of Moralized

Interpretation) in a way which leaves room for a longer list of rights. Human rights are,

we may say, bases for various forms of accountability-seeking conduct in world politics,

including but not limited to the use of outright coercion or force. They specify legitimate

bases for outside intervention in a society‟s affairs, and thus limitations on its

sovereignty, where “intervention” is construed broadly as any measure that seeks to hold

some presumptively sovereign authority accountable for its conduct. Aside from their

peripheral role in legitimating outright military or economic coercion, the primary role of



32

human rights is to persuade and encourage governments by a variety of non-coercive or

weakly coercive forms of accountability-seeking intervention, including things like:

naming and shaming, moral suasion and “jawboning,” nudging, cajoling in official

speeches and diplomatic relations; public criticism of governments by NGO‟s or private

parties; demands for justification, or requests for accountability, as within the reporting

schemes the UN uses to implement its treaties; policy adjustment within international

organizations, e.g., as regards lending or aid; the guidance and support of domestic

aspiration, reform, rebellion, and nation building; the adjudication and prosecution of

cases within human rights courts; and so on.

42

In any such conduct, tolerance or respect is at stak e, much as on Rawls‟s account.

If the measure in question cannot be legitimated according to a relevant list of human

rights — because human rights violations of those sorts are in question — it manifests

impermissible intolerance or disrespect for the presumptively sovereign authority. This is

not even to say Rawls‟s short list of rights is wrong for the specific forms of force and

coercion he addresses, nor that there is a “second list” corresponding to the remaining

forms of accountability-seeking conduct. Rather, we may say that a different list of

human rights needs to be justified, as reasonably acceptable, for each of the many

different forms of potentially legitimate intervention we find in practice. So, for

example, if a government is considering military invasion or an economic embargo, this

might be illegitimate unless the target society is systematically violating the human rights

on Rawls‟s short— or perhaps an even shorter —list. That is, an invasion won‟t be

legitimate (at least given Rawls‟s list) if the target society merely violates rights of

freedom of association, or if it is non-democratic, or if it subordinates women and



33

minorities in religion and politics. Yet such injustices can still be counted as genuine

human rights abuses relative to intervention of a different kind; they might, for example,

license public condemnation in official speeches, as well, perhaps, as measures such as

loan conditionality or denial of trade privileges or exclusion from UN agencies. Even

such measures might be illegitimate if the target country merely fails to provide

reasonable limitations on working hours and periodic holidays with pay. Yet that

injustice, too, might license interventions of still different forms, such as requests for

review and justification, direct criticism by NGO‟s, or implied criticism and exhortation

by public officials. In this way, we can view the expansive lists of rights found in the

Universal Declaration and other documents as an agglomeration or compilation of

different lists which license some intervention or other (though each element would still

need to be defended separately in terms of the specific kind or kinds of intervention it is

supposed to govern).

From a normative point of view, the different intervention-relative lists of human

rights will generally tend to be longer the easier it is for a form of intervention to be

justified. The use of force is hard to justify, and so the list of rights violations that

legitimate it is correspondingly short. Implied public criticism is easier to justify, and so

the list of rights violations that legitimate it can be comparatively long.43

What should be

emphasized for present purposes, however, is that any such substantial normative

argument is to be framed by an independent characterization of the accountability-

seeking conduct at issue. We cannot say, in the first instance, what is or is not a genuine

human right, or what is or is not intolerant or disrespectful, without first specifying (as a

matter of Moralized Interpretation) the type of intervention being considered and the



34

relevant interests at stake. One challenge to the approach is thus to plausibly identify the

different classes of intervention which supposedly require different human rights lists.

These different kinds need to be identified independently of their associated lists, in a

way that helps determine why any particular item on a given list belongs there. But while

demarcation of such categories needs to engage the best of political science and theory,

the task is not wholly non-normative. Again, the task is one of constructive

interpretation, which can equally be guided by our sense of the ways different forms of

intervention differ in moral significance. Descriptive and normative aspects of different

domains can be adjusted until reflective equilibrium is reached. The result is inevitably

messy, but this is as it should be if political philosophy is to plausibly have decisive

normative implications for world politics.

CONCLUSION

I have now formulated political constructivism in general terms which have

fruitful application to a broad range of areas of social life. This is not quite to say that it

can exhaust the concerns of political philosophy. Whether it does that also depends on

larger theoretical issues which I cannot take up here.44

I hope I have shown that political

constructivism does at least bid fair to be what political philosophy is all about.

1 A Theory of Justice (Cambridge: Harvard Press, 1971), Political Liberalism (New York: Columbia

University Press, 1996) and The Law of Peoples (Cambridge: Harvard Press, 1999).

2[Cite global justice literature.]

3 While I will focus on “non- basic” structures in the global context, the domestic context raises

familiar issues of this sort. Feminists and others have emphasized that informal arrangements (such as

sexist gender expectations) within a society‟s “basic structure” of institutions are often significantly unjust,



35

though they could at best be an indirect concern of Rawls‟s domestic theory. Susan M. Okin, Gender,

Justice, and the Family (New York: Basic Books, 1989), and more recently, G. A. Cohen, “Where the

Action is: On the Site of Distributive Justice,” Philosophy and Pubic Affairs [reference] One general

strategy is to stretch the scope of “basic structures” to include such controversial cases. My more general

question is why political constructivism should apply only to “basic” structures in the first place.

4Below I simply assume reflective equilibrium methodology. It is too general to have any

distinctive implications for the substance of political philosophy, beyond enabling a more substantive

method.

5 I develop this general thesis for the case of practical reasons in my “Constructivism about

Practical Reasons,” Philosophy and Phenomenological Research 74 no 2 (2007).

6 I discuss this further in my “Constructing Protagorean Objectivity” (unpublished ms. available at

http://www.faculty.uci.edu/profile.cfm?faculty_id=4884 )

7T. M. Scanlon, What We Owe to Each Other (Cambridge: Harvard Press, 1998)

8Collected Papers, ed. Samuel Freeman (Cambridge: Harvard Press, 1999), Ch. 16

9See Political Liberalism (hereafter PL)

10This is also implicit in Rawls„s account of the “considered judgment of a competent person,” in

Rawls early paper “Outline of a Decision Procedure for Ethics,” Collected Papers, Ch. 1. In PL, Rawls

rejects “rational intuitionism” but also distances himself from “Kantian constructivism.” Still, he nowhere

rejects the idea of truth as such. He favors talk of what is “reasonable” but there are of course truths about

what is reasonable rather than not.

11If good practical judgment is largely a matter of expressing the best understanding of the human

reasoning practice, then any such understanding is in principle accountable to general claims about whatthat practice is like. But should differences in reasoning practice from age to age, and culture to culture,

lead us to skepticism whether practical reason has any internal norms and informative content? Could any

set of principles or conceptions express human reasoning practice once and for all, or at best amount to

“empty formalism”? Might the implicit content of reason emerge gradually over time, being ever more

manifest and explicit in human thinking as history wears on, and only fully manifest at history‟s end?

12 See especially “The Independence of Moral Theory,” Collected Papers, Ch. 15.

13I believe that, perhaps under Dreben‟s influence, Rawls accepts but never explicitly develops this

Wittgensteinian thought. For its development, see Barry Stroud, Meaning, Understanding, and Practice

(Oxford Press, 2000).14

In my “Constructivism about Practical Reasons,” I argue that no such specified method is essential

for constructivism to qualify as a properly meta-ethical proposal. It may, however, be necessary for

political philosophy insofar as its aim is to substantially justify principles and clarify and defend the

substantive reasoning for them.

15Scanlon, What We Owe to Each Other

http://www.faculty.uci.edu/profile.cfm?faculty_id=4884





36

16The assumed background can even include standing moral principles, though they inform and do

not determine reasoning for principles in the case in question. See Scanlon, p. ….

17He does explain his focus on the “basic structure” of society in KCMT and TJ, but this reflects a

more general focus on “practices,” which is explicit but not fully developed in earlier papers such as

“Justice as Fairness.”

18COHEN/MURPHY

19See Ronald Dworkin, Law's Empire (Cambridge: Belknap Press, 1986), pp…, and, for the

application to Rawls, my paper “Constructing Justice for Existing Practice: Rawls and the Status Quo,”

Philosophy and Public Affairs, 33 (2005)

20 See my “Constructing Justice for Existing Practice.”

21Examples include Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964),

Ernest Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995), Michael Walzer,

Spheres of Justice (New York: Basic Books, 1983), Martti Koskenniemi, From Apology to Utopia: The

Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustannus: Finnish Lawyers'

Publishing Company, 1989), and Alexander Wendt, "Anarchy Is What States Make of It: The Social

Construction of Power Politics," International Organization 46, no. 2 (1992).

22See, e.g., Cohen, Rescuing Justice and Equality

23 AJ Julius‟s “A Lonlier Contractualism” (unpublished ms.) has this general form. The suggested

separability is also essential for Rawls‟s reformulation of constructivism as a “political” doctrine in the

special sense discussed in PL. A Rawlsian version of the present objection would be that only such a

reformulation represents “political constructivism,” properly speaking.

24This is not to say that justice cannot implicate individual conduct or interpersonal morality. It is

rather to say that we are to start with established structures and work out any requirements for individuals

in the light of structural requirements, rather than the other way around. I develop the argument in the text

further in my “Power in Social Organization as the Subject of Justice,” Pacific Philosophical Quarterly 86

(2005).

25The accomplishment is essentially public because individuals do not “agree with themselves” in

the same sense. Agreement in a single person‟s judgments, at a time or cross-temporally, results from basic

rational coherence of a sort which does not apply across persons. Self-governing individuals have basic

rational capacities which (barring irrationality and other extenuating conditions) enable them to effectively

regulate their own planning, intentions, and conduct according to their own understanding, reasoning, and

practical judgment, without necessarily establishing coordinative agreements in understanding, reasoning,

and judgment with others. Such rational coherence does not apply interpersonally. There is, for example,

no contradiction in believing both P and not-P if each proposition is believed by a different person; this is

not contradiction but simply disagreement .

26 Rawls sometimes puts this idea in terms of “stability,” the idea that public recognition of a

conception of justice tends to induce compliance with the system that implements it (TJ 177). I am



37

developing the sketchy and general remarks in the text in a paper (now in production) on Hobbes and moral

assurance problems (i.e., coordination problems arising because different morally motivated agents

exercise their “private” moral judgment in different ways, because of dif ferences in moral reasoning or in

moralized interpretation of factual conditions).

27 As Rawls puts the thought (TJ 56): “…in a well -ordered society, one effectively regulated by a

shared conception of justice, there is also a public understanding of what is just and unjust.”

28By contrast, consequentialist egalitarianism often presents equality as simply one worthy ideal

among many, in which case it can be readily compromised (e.g. for the sake of efficiency) in actual social

choice. See Cohen, Rescuing Justice and Equality.

29 “Constructing Justice for Existing Practice.”

30 Rawls‟s “decent hierarchical societies,” in LOP, might be read in these terms: their religious and

authoritarian culture doesn‟t support key presuppositions of Rawls‟s theory.

31Rawls is clear in LOP that any such claim of deep presupposition could not justify force against

“decent non-liberal” societies. The thought may be that the needed deep interpretive arguments would be

too controversial to take as a legitimate basis for coercive intervention. The deep constructive critique

might be correct, and in theory available to non-liberal societies, yet not a reasonable basis for agreement in

international law and practice.

32This is crucial if Rawls is to present (in PL) constructivism as a “political” doctrine in his special

sense which applies to the basic structure of domestic and international society. Whether justice must be

“political” in that special sense elsewhere is a further, open question. It may, for instance, be needed where

outright coercion is being used, making a “political” political constructivism appropriate.

33 See my “Distributive Justice without Sovereign Rule: the Case of Trade,” Social Theory and

Practice, 31 no 4 (2005) and my “A Theory of Fairness in Trade,” unpublished ms., available at

http://www.faculty.uci.edu/profile.cfm?faculty_id=4884 .

34Douglas A. Irwin, Against the Tide: An Intellectual History of Free Trade (Princeton: Princeton

University Press, 1996), p. 216.

35As David Ricardo and others explained, even if one country has what Adam Smith called an

“absolute advantage” in everything, while another country has an absolute advantage in nothing, trade to

comparative advantage is still to the benefit of both countries. Each country profits by producing what it

produces best relative to its productive options (rather than relative to other countries). And each country

benefits when the other does this, allowing still further refinement of the division of labor.

36 I argue for this in my “Global Economic Fairness: Internal Principles” (forthcoming in a volume

by Cambridge Press Law). I plan to develop the theme in a book project on fairness in the global economy.

37 I develop this thought in my “A Theory of Fairness in Trade.”

38 In “A Theory of Fairness in Trade,” I defend three principles. The first principle concerns the

harms of trade, such as unemployment, wage suppression, and income volatility that diminishes lifetime

savings. According to Collective Due Care: trading nations are to protect people against the harms of trade






38

(either by temporary trade barriers or “safeguards,” etc., or, under “free trade,” by direct compensation or

social insurance schemes). Specifically, no person‟s life prospects are to be worse than they would have

been had his or her society of origin been a closed society. The second and third principles concern the

“gains of trade,” as specified by classical trade theory. These chiefly include the national income gains due

to greater allocative efficiency in the division of labor, due to economies of scale, and due to the spread of

technology and ideas. According to Domestic Relative Gains: gains to a given trading society are to be

distributed equally among its affected members, unless inequality of gain is reasonably acceptable to them

all (e.g. according to domestic distributional principles). And according to International Relative Gains:

gains to trading societies, as adjusted according to the relevant endowments of each (e.g. its population size

and level of development), are to be distributed equally, unless unequal gains flow (e.g. via special trade

privileges) to poor countries.

39Here I set aside the deeper question (which Rawls largely ignores) of why we should take

international law and practice for granted. One answer derives from the idea that principles must be

principles of collective regulation, and thus part of what Rawls calls a “realistic utopia.” Such principles

must take an international form, because we do not yet have a known and widely-understood workable

alternative. Even suggestion of global cosmopolitan federation is at this point is largely a speculative

possibility, instead of a clearly feasible, widely understood, and otherwise acceptable organizational option.

I sketch a version of this argument in my “Equality in a Realistic Utopia,” Social Theory and Practice 32

no 4 (2006).

40In defense of minimalism, see M. Ignatief, Human Rights: as Politics and as Idolatry, J. Cohen,

“Is there a Human Right to Democracy?” [references]

41

Consider, e.g., Universal Declaration rights to a decent standard of living, including housing,medical care, and social services, (UD Art. 25), or to reasonable limitations on working hours and periodic

holidays with pay (UD Art. 24)

42 James Nickel, “Rawls‟s Theory of Human Rights in Light of Contemporary Human Rights Law

and Practice,” [reference] and Making Sense of Human Rights (Oxford: Blackwell Press, 2007), p. 101.

43We may add that any candidate rights, for any such list of human rights, must be an element of

public reason, in the sense that it is not just a truth about justice but also available to all reasonable parties

affected, given certain specified informational and other circumstances. This is not essential for a political

constructivist account —unless we assume Rawls‟s special sense of “political” which implies neutrality on

comprehensive doctrines and thus a restriction to public reason.44

G. A. Cohen, Rescuing Justice and Equality (Oxford Press, 2008), denies that political

constructivism yields fundamental principles of justice, even if it did yield principles for the regulation of

all sorts of social life. Cohen argues that any such regulative principles cannot be fundamental because

they are not “fact-insensitive,” in the sense of being valid regardless of the actual world facts. I argue in an

unpublished manuscript, “Deflating Fact-Insensitivity” (available at

http://www.faculty.uci.edu/profile.cfm?faculty_id=4884 ) that Cohen‟s argument fails to rule out the






possibility of fact-insensitive principles which are still justified for particular sets of factual assumptions.

A principle P justified for some facts F presupposes the fact-insensitive conditionalization, “If F, then P.”

Such conditionalized principles are true whether or not facts F actually obtain (especially if they are

regarded as necessary truths, as they can be). In my “The Significance of Distribution”

http://www.faculty.uci.edu/profile.cfm?faculty_id=4884 ), which takes up related methodological concerns,

I argue that political philosophy must have a basic concern with relations, rather than with distributional

outcomes, as such, in a way which is amenable to the relational political constructivism I have described

here.




aaron james, political constructivism foundations and novel applications

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