G.A. Cohen argues that Rawlsian constructivism mistakenly conflates principles of justice with optimal rules of regulation, a confusion that arises out of how Rawls has us think about justice. I use the concepts/conceptions distinction to argue that while citizens may reasonably disagree about the substance and demands of justice, some principled convergence may be possible: we can agree upon regulative principles consistent with justice, as each of us understands it. Rawlian constructivism helps us find that principled convergence, and this too (...) is a conception of justice. (shrink)

Cohen’s hostility to Rawls’ justification of the Difference Principle by social facts spawned Cohen’s general thesis that ultimate principles of justice and morality are fact-insensitive, but explain how any fact-sensitive principle is grounded in facts. The problem with this thesis, however, is that when facts F ground principle P, reformulating this relation as the "fact-insensitive" conditional “If F, then P” is trivial and thus explanatorily impotent. Explanatory, hence justificatory, force derives either from subsumption under more general principles, or precisely exhibiting (...) value in light of relevant (actual or hypothetical) facts. In examples where no subsumption occurs, actual facts trivially become hypothetical facts in "fact-insensitive" conditionals, an empty formalism. Indeed, Rawls’ grounding of principles of justice in “conditions of life” can easily be reformulated as a conditional principle “sensitive” only to hypothetical such conditions, and thus formally fact-insensitive in Cohen's sense, for all Cohen’s ire against Rawls’s grounding.Moreover, any plausible “ultimate fact-insensitive principle” must be intricately qualified, which tacit ceteris paribus clauses mask. Each qualification implies prioritisation of one principle over another in conceivable circumstances, and wherever the now qualified principle is given scope, that too implies prioritisation over competing principles in typical circumstances. Any principle is thus sensitive to conceivable circumstances of application, as recognised by more sophisticated intuitionisms. Non-trivial ultimate principles – luck egalitarianism, act utilitarianism, etc. - require defense, which inevitably involves showing how they best interpret and respond to facts about human needs, goals, and capacities in predictable circumstances. Finally, the substantive debate between Rawls and Cohen about which facts are relevant to the DP is only obscured by the doctrine of fact-insensitivity. (shrink)

In this article, I argue that G. A. Cohen’s defense of the feminist slogan, “The personal is political”, his argument against Rawls’s restriction of principles of justice to the basic structure of society, depends for its intelligibility on the ability to distinguish—with reasonable but perhaps not perfect precision—between those situations in which what Nancy Rosenblum has called “the logic of congruence” is validly invoked and those in which it is not. More importantly, I suggest that the philosophical shape of Cohen’s (...) critique makes it difficult for him to supply the required criterion, and that the methodological “intuitionism” he claims to be committed to is at odds with his larger argument against Rawls concerning the subject of justice. (shrink)