Conditions of Rational Discourse
This post is really a footnote to the Rational Discourse and Internet Governance posted on Legal Theory Blog. The question is what are the conditions of a rational discourse. If you have jumped here from the main post, you just read a condensed version of those conditions. Froomkin's article seems to me to assume that Habermas's more recent work abandons his formulation of the conditions of the ideal communications situation. I am not sure that Froomkin is right about that, but it is far afield of the point of his article and my main post. In this Legal Theory Annex post, I'm simply laying out my own view. Here is my formulation of the conditions for a rational discourse. This is from Lawrence B. Solum, Virtues and Voices, 66 Chicago-Kent Law Review 111 (1991):
(1) Rule of Participation. Each person who is capable of engaging in communication and action is allowed to participate.
(2) Rule of Equality of Communicative Opportunity. Each participant is given equal opportunity to communicate with respect to the following:
a. Each is allowed to call into question any proposal;
b. Each is allowed to introduce any proposal into the discourse; and
c. Each is allowed to express attitudes, sincere beliefs, wishes, and needs.
(3) Rule against Compulsion. No participant may be hindered by compulsion whether arising from inside the discourse or outside of it from making use of the rights secured under (1) and (2).
Return to main post.
posted by Lawrence Solum 3:29 PM
John Eden on Rawls and Cohen
Here are some additional thoughts from John Eden on Rawls, Cohen, and the Difference Principle:
In what follows I will offer some reflections on some of the issues raised by Bertram, Runnacles, and Fox in connection with Rawls & Cohen debate. Before putting any substantive claims on the table, I’d like to make a few methodological remarks about negotiating the muddy waters in which we’ve recently found ourselves. My comments on Lawrence Solum’s most recent note appear toward the end of this post.
First, issues of interpretation and legitimacy are quite different, and should remain distinct when handling Rawls and Cohen. For instance, getting Rawls’ views on the basic structure straight does not require accepting the (controversial) idea that there is a set of institutions that justice dictates must be structured in light of (what I earlier referred to as) our appropriately pruned self-interest. By the same token, understanding Cohen’s view that the two principles of justice have radical egalitarian implications when taken seriously does not necessarily vindicate it; as I pointed out, Rawls himself has arguments, in TJ and in some of his other papers, which purport to show that the principles of justice are uniquely suited to structuring the basic institutions of society, and hence should not be applied to all organizational and (broadly) political issues in a liberal democracy. Interpreting fairly the basic views of either of these philosophers ought to be systematically distinguished from rigorously assessing the legitimacy of their respective claims. The bumper-sticker take away: careful interpretation first, and then judicious assessment.
Second, Cohen and Rawls are notoriously – though I’m not sure they’ve been taken to task by any of the Mooseheads in analytical philosophy – unclear about their respective conceptions of moral psychology. Rawls does not, for instance, say much about how the psychological disposition necessary to heuristically deliberate as if one were behind the veil of ignorance relates to moral deliberation more generally (despite his long soliloquies in various pieces about the importance of a sense of justice). This makes it particularly hard to chart out the relationship between deliberation about justice (in the technical Rawlsian sense) and deliberation about other sorts of issues to which we tend to attach deep moral salience.
Cohen, at least from what my hazy memory is telling me at a quarter past midnight, also fails to say anything helpful about how his general views about egalitarianism are supposed to be effectively inculcated in creatures like us – creatures with limited attention spans and a tendency to put our own narrow interests first. (Even cynics like Richard Posner realize that social justice depends upon the proper development of emotional capacities, like empathy and such. I’ll dig up the reference(s) if anyone is interested. It’s interesting that thinkers as different from one another as Posner and Nussbaum agree about this basic principle.)
Paternalism and education: I tend to agree with Tom Runnacles (TR) that most forms of moral education are somewhat paternalistic, and that this isn’t necessarily a cause for alarm. But I would push the point even further in the following way. McIntyre in After Virtue contends that human values are always grounded in a culturally specific, content-laden and historically situated “moral compass.” He doesn’t frame this thought in precisely these terms, but the point is hard to miss: without a basic orientation toward the world, it is impossible to attach value to states of affairs or objects of pursuit, and it is a fortiori impossible to make moral judgments or engage in complex forms of reasoning about matters political. We have to start somewhere, in other words.
McIntyre downplays the importance of the procedures by which our basic orientation toward the world is subject to revision, and that irks me. But nevertheless, he has a good point: paternalism only becomes a boogeyman when there’s a baseline against which we might compare the allegedly unsavory forms of indoctrination at issue. Sabl certainly hasn’t shown that the liberal baseline is any better than the baseline that Cohen presumably has in mind, so I’m even more impatient with Sabl’s principal criticism of Cohen (viz., the idea that Cohen’s ideas are obviously at variance with the solid, reliable principles on which liberal democracy rests) than TR seems to be.
Egalitarianism and pluralism: Chris Bertram (CB) rightly points out that some preference sets and practices are ‘excluded by prior considerations of justice,’ further explaining that ‘liberals don’t value diversity [per se], they value the diversity that is compatible with what justice permits.’ This is an extremely important – and honest – point that needed to be made. A well-developed conception of justice – liberal, Rawlsian, Cohenian, or otherwise – will not conserve all preference sets and ways of life.
But I’m not sure that I really agree that individual liberty, as currently conceived in the U.S., is compatible with a wholehearted commitment to egalitarianism. My intuition in this connection is probably traceable to the distinction between the human species’ major interests – in mental health, physical welfare, having adequate food and accommodation – and its minor interests – e.g., being able to take luxurious holidays in Cabo, having the discretionary income necessary to purchase and feed a Lincoln Navigator, and so on. The attitude of the fortunate – especially of those who exist outside the realm of liberal academia – is to presume that one is entitled to these sybaritic indulgences, regardless of the sacrifices that have to be made by certain groups of people to make them possible. (See Barbara Ehrenreich’s new book which touches on these issues, Nickel and Dimed.) Individual liberty is conceived in a way that panders to far too many of our minor interests, and so when Bertram – in an earlier post – responds to Schwartzman by invoking hope for a balance between the competing values of egalitarianism and permissible individual prerogatives, there’s the danger of slipping into disingenuousness and fanciful thinking: a true egalitarian will want to excise a great many of these ‘prerogatives,’ thus irritating liberals, from the relatively moderate to the libertarian.
Rawls, Cohen, and pruning Self-interest: In my last post I pointed out that I basically agree with Larry Solum’s (implied) view that Cohen may not have anything of direc relevance to say in response to Rawls’ assumption that a well developed theory of justice only requires that self-interest can be modified and shaped in certain ways, but not expunged in toto. Rawls, of course, frames this point in terms of “taking men as they are and laws as they might be.” Let’s call this Rawls’ [basic intuition].
To my mind, there are two main ways to challenge this general intuition. One is to adopt Cohen’s principle, elucidated so nicely by Mr. Runnacles, that it’s erroneous to say that justice can be confined to the basic structure alone, as the principles which embody justice have to themselves be internalized by agents. The underlying idea here is that when a sense of justice is effectively internalized by individuals, its ethos will inform the preferences people entertain and the choices they make in the market place, political affairs, and social life more generally. And the central implication is that while purposive exploitation of the subaltern classes by the haves is a no-no, one does not need to filter all of ones choices and preferences to ensure that they are “subaltern-friendly”, i.e., productive of the material and social conditions which would directly benefit the least well off. (Essentially TR’s point from his April 02 post.)
What often goes unnoticed, unfortunately, about Cohen’s strategy is that it depends upon (initially) plausible psychological assumptions about an agent’s inability to apply radically different sets of moral norms to divergent circumstances. Now, I tend to think that as a matter of moral psychology, it would be very odd if folks behind the veil adopted the two principles of justice which Rawls favors and yet decided, once freed of the constraints of the original position, to endorse and adopt patterns of conduct corrosive of political liberty and economic prosperity for the least advantaged group(s). We must, in other words, countenance the plausibility of Cohen’s strategy, regardless of whether we’re ultimately comfortable with it. But there are two wrinkles. First, human beings are capable, at least to some extent, of applying different sets of moral norms to particularized contexts. Judges respect their role-responsibilities all the time, even in cases where doing so requires a painful forfeiture, if only temporary, of their cherished moral convictions. Thus, save an argument to the effect that there is something distinctive about internalizing justice, Cohen’s complaints need further development. As stated, they are simply not convincing.
Second, by leaning too much on the importance of the capacity (the capacity for a sense of justice) necessary to properly internalize the two principles of justice, Cohen inadvertently falls prey to a mistake that Rawls himself makes: assuming that a discrete moral capacity, or a set of such capacities, is what makes us subject to the demands of justice. While Rawls does make it clear that a person basically capable but currently lacking a sense of justice should not be treated in ways inconsistent with the principles of justice, he only intimates in The Sense of Justice (TSJ hereafter, 1963) that this basic capacity is what needs to be developed and respected by the various institutions of a well-ordered polity. The problem in submitting this claim ‘under the radar,’ so to speak, is that we are dissuaded from posing a very important question: What in the world is required to develop and respect this basic capacity? The answer, which has to be assembled from the interconnected themes strewn about the Rawlsian corpus, is roughly the following: Given the close connection between autonomy and the capacity for a sense of justice, the only principles of conduct which can be adopted in the original position are those which acknowledge the legitimacy of ‘self-interested’ life plans.
In TSJ, Rawls comes quite close to saying just this: “One’s conduct in relation to [a rational agent] must be regulated by … the principles which rational and self-interested persons could acknowledge before one another in such a position.” I don’t claim to have a well-worked out story explicating what is required to respect and develop the basic capacity for a sense of justice. But I submit that the aforementioned claims prejudicially exclude arguments to the effect that rational agents might be subject to more egalitarian principles of justice. These claims do so on the incredibly weak theory that the basic moral capacity necessary to have a sense of justice in the first place demonstrates that a rather narrowly construed self-interest is essential to the deliberative processes of the original position. Rawls dug the hole into which Cohen (and the rest of us) unwittingly fell. I believe this is why Cohen has trouble convincing those Rawlsians (e.g., Solum) – who hold that there is a principled reason to restrict the two principles to the basic structure – that TJ in fact requires the extension of those very principles to the sundry transactions and choices we make everyday in political and social life. Without a story about what sort of basic orientation is necessary in the original position, Cohen simply can’t get any traction on the issues at hand. (Longstanding controversies about risk aversion are also a result of Rawls’ failure to explain precisely how we’re supposed to oriented, in the most general sense of that term, in the original position. That explicit consideration of a person’s morally inapposite characteristics is out will not suffice as a standard, for this criterion still leaves the question to be posed at Solum’s special session of the Original Position unanswered.)
The alternative strategy to challenging Rawls’ basic intuition, then, relies upon subjecting the previously described sleight of hand to the criticism it deserves. I see two main permutations of this alternative strategy between which I have trouble choosing myself. One permutation involves mounting the argument that there are no truly good reasons for thinking that any specific psychological disposition or orientation is appropriate for the original position. Rawls could argue in response that this is a quixotic, strange, even irresponsible position to take – on the theory that rational agents are by definition self-interested, a point attested to by famous (and infamous) evolutionary theorists including Darwin, Dawkins, Sober, and E.O. Wilson. I would respond with a quip from Herr Kant: strange or irresponsible, the moral law demands that our sensuous desires, wild whims, and prejudicial casts of mind step aside when basic questions of morality are being addressed. Since the basic questions of political morality are the central topic under discussion in the OP, our current intuitions must be abrogated. It’s as simple as that.
Rawls, or Solum, could say insofar as Darwin et al. are right, we’ve reached the veritable limits of morality, the insurmountable Great Wall of the moral realm. This can’t be right. Even if it’s empirically true that self-interest cannot be jettisoned wholesale at the drop of a hat, a little moral imagination should suffice to show us what we would conclude were we not in the grips of our extant cast of mind. The heuristic abilities that make setting aside the morally irrelevant characteristics of persons possible in the OP could very well enable deliberation sans that kind of self-interest that arguably leads to 1) the selection of the two principles of justice in the first place, and 2) the restriction of the spirit underlying those principles to the basic structure. It might really be possible, in other words, and perhaps our angst at the current distribution of primary goods and sybaritic play-things evidences the power and scope of our moral imagination. We know what should be the case, even if we would be in some sense unwilling to make it so were we granted the requisite authority.
Not convinced? A second strategy invokes a robust notion of ideological neutrality: the baseline orientation should be avowedly egalitarian, since human welfare is a value on par with justice, and if welfare is unqualifiedly distributed across human agents it is less likely that justice will be breached than if justice is unqualifiedly distributed across human agents. Perhaps the best, yet perhaps defeasible, argument for this claim is that we can certainly imagine a well-ordered Rawlsian polity that adequately promoted justice but which was deficient in securing acceptable levels of welfare for all.
Rawls could contend in response that “justice is the first virtue of social institutions, as truth is for systems of thought” (TJ, 3). To this retort I would say that a) this is not necessarily true and that b) even if it were, justice’s status as the first virtue does not establish that justice is the primary or singular virtue of social institutions. Not necessarily true, because a number of very smart people would balk at this claim as an airy-fairy fantasy. Emile Durkheim, the French sociologist, thought that the first virtue of social institutions was a minimal variety of solidarity. Freud thought that the first virtue of social institutions was the sublimation of anti-social impulses and instincts. The upshot is that we can make all the pronouncements we like about what is really the first virtue of social institutions, but the legitimacy of such pronouncements is intimately related to our (often hidden) explanatory purposes. First-virtue status does not show that justice trumps other virtues, because justice might itself be an organizing virtue, i.e., a virtue whose job it is to adroitly juggle all the other virtues, arranging them in a way that optimally serves the interests of humanity. As evidence for this bold supposition, I would call attention to the five hundred and eighty-seven pages that Rawls took in TJ to illustrate how the juggling act works. In any case, I would insist that the question of what sort of baseline orientation is appropriate in the OP is at this point open, and subject to much dispute.
A brief response to Professor Solum’s April 12 post: I want to bring together some of the reflections and arguments I’ve made thus far. In the process of doing so I’ll draw some contrasts between my approach to Rawls and Professor Solum’s strategy for justifying certain core aspects of TJ.
1) I do not think – as Professor Solum does – that the second interpretation of Micah’s view is prima facie implausible. In order to reach this conclusion, at least two controversial claims would have to be made with respect to the mechanics of Micah’s view (or of the pro-Cohen view more generally). First, one must assume that there’s no meaningful distinction to be made between the general patterns of behavior encouraged by the two principles of justice, and the types of behavior that are strictly prescribed. Second: Professor Solum is right to think that the set of prescribed behavior is narrow, precisely because the two principles are designed explicitly to be applied to structuring basic political and social institutions. But it certainly is possible that the failure to engage in certain actions, say, reducing the amount of privation in one’s locality, is somewhat inconsistent with the ethical vision latent in the two principles. A well-developed anti-latency argument must be proffered before one can conclude that the two principles could not play “the role of principles of personal morality.”
2) If one were to say that the value of justice might help us answer the vexing question of what the outcome will be of Solum’s proposed special session of the Original Position, I would beg to differ. Recall that there are two possible outcomes: agents select either the basic structure version of the two principles (BS) or the comprehensive version of the two principles (CV). To see why arguments attempting to show how the value of justice is relevant are bound to fail, let’s test both cases. The first case is the traditional Rawlsian view, and the second case is the Rawlsian view after we’ve discarded his preferred arguments for what I’ve called the basic intuition.
a. The received Rawlsian view says that justice is the first virtue of all social institutions. Assuming arguendo that this is right, we must inquire as to what society is. Voila – the answer is that society, the organism consisting of basic social institutions, is a system of social cooperation among free and equal citizens who have the two basic moral powers (a workable conception of the good, and a healthy conception of justice). The received view doesn’t help us choose between BS and CV, precisely because even if justice is primarily a virtue of social institutions, proponents of both BS and CV could readily argue that this preeminent value is best respected by deploying it narrowly (BS) or widely (CV). Solum is acutely aware of this, evidenced by the observation that “it would be extremely odd to think that justice in the basic structure relieves citizens from the moral obligation to treat one another justly in other ways.” Justice is valuable everywhere, which implies that clever hair-splitting about the value of justice is not germane to the matters before us.
b. If we write off the arguments on offer from Rawls to the effect that self-interest simply is the right cast of mind for agents in the OP, then even the most sophisticated arguments about the value of justice are likely to be of little use. For establishing the degree to which justice is valuable per se does not speak to whether we should ‘take men as they are, and laws as they happen to be.’ Controversies about whether the baseline orientation those liberal democrats would and should have in the OP are of great moment for the outcome of Solum’s special session. We need to fill-in the moral psychology a bit more thoroughly, and we also need to draw connections between moral psychology and heuristic moral reasoning with greater care. But directly gauging the value of justice will not be of much utility.
posted by Lawrence Solum 7:40 AM