CRITIQUE OF PUBLIC REASON REVISITED: KANT AS ARBITER BETWEEN RAWLS AND HABERMAS* Nythamar Fernandes de Oliveira * Originally published in Veritas 45/4 (2000): 583-606. John Rawls's and Jürgen Habermas's contributions to modern political theory, in particular, their recasting of the Kantian universalizable principle of autonomy and its political implications, have shown how public reason lies at the heart of democratizing processes and is decisive to the survival of our political, social, and economic institutions in the next century. Both Rawls and Habermas have critically appropriated Immanuel Kant's cognitivist, universalist and emancipatory conception of moral autonomy so as to attempt at an original understanding of publicity and political culture. Kant can thus be said to stand as the arbiter between Rawls and Habermas –als Schiedsrichter zwischen Rawls und Habermas, to paraphrase an article by the young Marx-just as Hobbes's ―moral-psychological individualism‖ and Rousseau's ―popular sovereignty‖ had been previously judged and arbitrated by Kant's political philosophy of justice.[1] Like Rawls, Habermas shows that normativity must go beyond a merely conventional level of morality and require the structural transformation of legal and economic-administrative institutions so as to make possible the very co-existence of democratic differentiated interests. Kant's deontological ethics is thus opposed to both utilitarian and eudaimonistic views of morality and politics, as it serves to construct a nonmetaphysical, political conception of justice (Rawls's ―political autonomy‖) and an intersubjective conception of autonomy (Habermas's ―Diskursethik‖). Both Rawls and Habermas start from a critical standpoint regarding Kant's fact of reason so as to account for the principle of autonomy in moral and political reasoning. While Rawls seeks to recast the principle of universalizability as a procedural test for maxims, Habermas reformulates Kantian proceduralism in intersubjective, communicative terms.[2] Unlike Rawls, however, Habermas explicitly embraces Hegel's critique of Kant in his reconstruction of the latter's proceduralism. On different occasions, Habermas criticized Rawls's theory of justice, especially in his seminal work Moralbewusstsein und kommunikatives Handeln (1983), in his complementary ―Remarks on Discourse Ethics‖ (in Justification and Application, 1993; originally in Erläuterung zur Diskursethik, 1991), in his 1981 essay ―Treffen Hegels Einwände gegen Kant auch auf die Diskursethik zu?‖ (translated and appended to English edition of Moral Consciousness and Communicative Action-hereafter MKH), in the Journal of Philosophy exchange with Rawls (―Reconciliation through the Public Use of Reason: Remarks on John Rawls's Political Liberalism‖), and in the companion to his masterpiece Theorie des kommunikativen Handelns, Faktizität und Geltung.[3] The Rawls-Habermas debate came thus to the fore only after the latter's elaboration of his theory of communicative reason –in effect, the two large volumes of TKH reserved one single, peripheral allusion to Rawls (in the Eng. ed., vol. 2, p. 290)- especially through an attempt to integrate the communitarian critique of Rawls's liberalism (well established by Michael Sandel's Liberalism and the Limits of Justice, 1982) with an alternative conception of democracy (such as the one advocated by Jean Cohen and Andrew Arato in their extensive study of Civil Society and Political Theory, 1992). Hence the official public staging of the Rawls-Habermas debate remains the exchange edited by Michael Kelly (Columbia University, New York) in the Journal of Philosophy (Volume XCII, No. 3, March 1995), reprinted in the 1996 paperback edition of Rawls's Political Liberalism. Habermas's further comments on Rawls's reply were published in Die Einbeziehung des Anderen: Studien zur politischen Theorie (1996) and in the Cardozo Law Review 17/2-3 (Fall 1995), and a forthcoming volume on the Rawls-Habermas debate is to be edited by Michael Kelly.[4] Besides Kenneth Baynes's seminal study on the Normative Grounds of Social Criticism–a comparative study of the theory of justice in Kant, Rawls, and Habermas--, Thomas McCarthy and Rainer Forst have contributed to an in-depth evaluation of this ongoing discussion.[5] Grosso modo, according to Habermas, Rawls's theory of justice is flawed in at least three specific points: (1) the original position does not appear to account for the impartiality required by deontological principles of justice; (2) the distinction between questions of justification and questions of acceptability is blurred and neutralized by the Rawlsian conception of justice, weakening its validity claims; (3) by constructing the constitutional state in function of the primacy of basic liberal rights over the democratic principle of legitimation, Rawls undermines his intent of reconciling the liberties of the modern with the liberties of the ancient. As expected, Rawls resorts to his later distinction between what would be a comprehensive view of justice –such as Habermas's– and his own political conception of justice, as exposed in Political Liberalism. It seems that both procedural devices of representation (Habermas's ideal speech situation and Rawls's original position), inspired by Kant's categorical imperative (particularly, its principle of universalizibility) and supposedly reformulated in nonfoundationalist, normative terms, remain decisive for any serious evaluation of their critical remarks on each other's theoretical claims. While the theory of communicative action claims to ground meaning, reference, and truth or validity upon practical reason in a quasi-transcendental version of Kant's procedural formalism, Ralws's theory of justice denies any role to be played by truth in the practical realm and confines justice to the political sphere, in particular, to the basic structure of a liberal-democratic society qua unified system of social cooperation among moral persons (i.e., free and equal humans). Both Rawls's and Habermas's conception of state and society seems thus inseparable from their respective conceptions of the self. Both Rawls and Habermas fail to elaborate on this basic correlation, perhaps because of their programmatic concern to avoid foundationalist articulations of the problem of human nature (the metaphysical foundations thematized, in classical terms, by philosophical anthropology) with ethics and politics, i.e. how the animal rationale discovers herself as a zoon politikon. To be sure, Habermas's conception of Lebenswelt and its articulation within his theory of society must be regarded as an attempt to account for the intersubjective, sociolinguistic constitution of the self qua human being and citizen. And Rawls's early remarks on Kohlberg's moral psychology anticipates Habermas's reconstructive turn as the latter departs from psychoanalytical approaches and a subject philosophy of the self towards Piagetian developmental analyses in the seventies, coinciding with the so-called linguistic turn. [6] Still, both authors seem to be evasive when they are challenged by their critics to take into account the ―concrete other‖ and her complex, empirical otherness, cutting across the taken-for-granted differentiations of private and public spheres. This can be perceived in Rawls's response to Habermas's criticisms. Although he recapitulates all his procedural formulations, Rawls focuses his reply on remarks (2) and (3) of his interlocutor. Rawls observes that, to the surprise of many readers, ―public reason‖ in his political liberalism must not be confused with the ―public sphere‖ invoked by Habermas, making a rather unusual distinction between the public and nonpublic. The conception of an ―overlapping consensus‖ is thus decisive to bring together Rawls and Habermas on the constituting intersubjectivity of the social world lived out by civil society, at the same time that one opposes their nuanced conceptions of publicity –which Rawls formulates in terms of a political culture and of a ―background culture.‖ As opposed to a simplistic reading of Rawls's shift from his earlier formulations of a theory of justice and the political constructivism of his later liberalism, following the communitarian critique, I think this debate must be recast in the conceptual terms of both authors' critical, political appropriation of Kant's conception of autonomy. Rawls's political conception of justice can be valued by its critical appropriation of Kant's procedural constructivism, in opposition to Hobbes's conception of justice as mutual advantage or regulation of interests, on the one hand, and to Rousseau's (failure to) undertaking an account of the infallible ―volonté générale,‖ on the other. Hence the renewal of the contractarian issue –in terms of foundations, in Rawls's attempt at a non-foundationalist theory and in contrast with Habermas's critique of contractarianism and natural law-attests to their subscription to Kant's ―arbitration‖ beween Locke and Rousseau.[7] As Habermas quotes from Kant's Rechtslehre: The legislative authority can be attributed only to the united will of the people. Because all right and justice is supposed to proceed from this authority, it can do absolutely no injustice to anyone.(...)only the united and consenting will of all –that is, a general and united will of the people by which each decides the same for all and all decide the same for each-can legislate.(BFN 472) Although Habermas criticizes Rawls's problematic shift from a Kantian, liberal contractarianism towards a pluralist, political culture, both authors share in the concern to maintain Kant's universalizibility without its foundationalist aporias. Thus, starting from the continuity between Rawls's earlier formulation of a comprehensive doctrine of justice as fairness in TJ and his later political conception of justice in PL, it can be shown to what extent Rawls succeeds in maintaining the normative principle of universalizability without falling back into the moral foundationalism of Kant's ―fact of reason‖ and accounting for the stability of a ―well-ordered society,‖ where are met the demands of rational bargaining in the arbitration of conflicting interests.[8] And yet, it must be recalled that, for Kant, political life, just as sociability itself, cannot be rationally conceived without resorting to a theory of morality rationally grounded in the very conception of autonomy or as pure practical reason being self-determined qua willing what ought to be freely willed. Although one seems to be either begging the question or moving back to square one, it is the problem of ―vindicating reason,‖ as Onora O'Neill put it, that must be tackled here: as one attempts to avoid foundationalism, one is inevitably caught in the selfreferentiality of a critical standpoint that posits problems rather than provides axiomatic solutions, is historically reflexive (circular), and nevertheless remains open-ended.[9] Rawls's political liberalism must therefore be approached in its dual foundations of a contractarian theory of political obligation and of a procedural theory of justice. Even in his earlier attempt at a nonmetaphysical recasting of Kant's proceduralism, Habermas outlines the Diskursethik device in light of Rawls's TJ, especially the two steps of justification-the principle of universalization (U) and its universal validity-based on a transcendental-pragmatic demonstration of universal and necessary presuppositions of argumentation. Habermas's critique of Kant, parallel to Rawls's study of the deduction in the Stanford conference,[10] avows that ―we may no longer burden these arguments with the status of a priori transcendental deduction along the lines of Kant's critique of reason.‖(MKH 116). It is in this context that Habermas asserts that his ―universalization principle can be understood on the model of Rawls's reflective equilibrium as a reconstruction of the everyday intuitions underlying the impartial judgment of moral conflicts of action.‖ Habermas maintains that his proposed formulation of the U principle is even more fundamental (and nonfoundational) than any other versions of cognitivist, universalist and formalist views, including (peut-être même surtout) Rawls's –whose theory of justice fits the second and third criterion but fails to be consistently ―cognitivist‖ in that it holds the dualistic separation of truth and justice. (MKH 120) And yet Rawls's influence upon the device of procedural representation in the theory of communicative reason is implicitly recognized by Habermas. Habermas also points to Rawls's contribution to the pragmatism inherent in Lawrence Kohlberg's moral psychology –Habermas even quotes Kohlberg's fourfold formula of moral reasoning (―impartiality, universalizibility, reversibility, prescriptivity‖) (MKH 119) By placing the Rawls-Habermas dialog at the heart of the ongoing debate among universalists in their opposition to communitarians' and noncognitivists' critique of liberalism, I hope to contribute to elucidating the nature of morality and political philosophy in their correlation with the classical question of human nature as it has been critically recast since Kant's critique of metaphysics. According to this view, political philosophy cannot account for the nature and justification of political institutions without presupposing a universalizable, normative conception of morality, itself constitutive of the human person. As Richard Bernstein remarked as early as 1983, A new conversation is now emerging among philosophers –a conversation about human rationality – and as a result of this dialogue we are beginning to gain a new understanding of rationality that has important ramifications for both theoretical and practical life. [11] Such is the Kantian thrust of this view, as opposed to the communitarian grounding of ethics and political philosophy on the tradition and context out of which discursivity itself takes place. Grosso modo, both universalists and communitarians can be called ―cognitivist,‖ insofar as they agree on the possibility of knowing the foundations of moral principles and the necessity of coming up with some moral theory. In short, there must be objectivity in moral reasoning, as one seeks to avoid the pitfalls of both foundationalism and relativism. In this sense, both teleological (i.e., virtue ethics and utilitarianism) and deontological ethics (i.e., Kantian-inspired and others) are to be opposed to noncognitivist approaches to moral philosophy –such as the ones advocated by postmodernists and those inspired by the radical critique of modernity (and of liberal democracy in particular) undertaken by Nietzsche, Heidegger, Foucault and Derrida. [12] As Kenneth Baynes has shown in NG, the constructivist account of practical philosophy advocated by these thinkers aims at specifying ―a procedure for critically assessing the legitimacy of social norms and institutions by reference to a normative conception of practical reason‖(NG 8). Moreover, by elaborating on the main arguments of these versions of constructivism, the latter is shown to constitute a highly defensible ―clarification of the normative grounds‖ of social criticism, whose justification is ―ultimately reflexive or recursive in the sense that there can be no higher appeal to something beyond the idea of that to which free and equal persons can rationally agree.‖(NG 2) Both Rawls's and Habermas's reading of Kant's political philosophy rejects the reduction of the problem of justice either to a teleological actualization in history (Hegelian-inspired reading of the ―kingdom of ends‖) or to an instrumentalization of practical reason (either by the denial of the Kantian analogy between the categorical imperative and the