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Political Moralism and Constitutional Reasoning: A Reply to Bernard Williams

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Abstract

Williams’s well-known critique of the ‘moralism’ of liberal political philosophy—its disconnect from political reality—holds special significance for the theory and practice of constitutional adjudication, where calls for ‘realism’ increasingly resound. Is constitutional discourse also guilty of moralism—as Williams himself thought—or might it succeed where political philosophy has failed? This paper reconstructs Williams’s critique of political moralism as one that decries the empty idealism of the philosophical project of abstraction: the quest for general, timeless, and universal principles drains theory of its prescriptive force. It then argues that legal-constitutional reasoning, even in its most ambitious ‘forum of principle’ conception, is not a flight to abstraction but precisely a pragmatist negotiation of the concreteness-abstraction tension through acts of justification. But constitutional discourse in its current form remains moralistic in another distinct sense: it idealizes the political, thereby failing to account for the social and political pressures on courts and the proper normative significance of institutional considerations. Constitutional discourse could only offer a solution to the ailments of political philosophy if it cures its own chronic idealization.

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Notes

  1. The main source for this critique is his posthumously published essay Realism and Moralism in Political Theory: Williams (2005, ch. 1) (‘Realism and Moralism’ or ‘RM’). To support my reconstruction of the critique as also offering a plausible reading of Williams, I will be drawing on his other works where appropriate.

  2. For the ‘realist turn’ in constitutional theory, see generally Hirschl (2009), discussed at greater length in Mann (2018). Although much of this literature takes the form of descriptive political science that does not make its normative implications explicit, some authors are clear about the upshot being precisely the damning one outlined here.

  3. Although political philosophy need not necessarily be substantively liberal to be moralistic, Williams targets liberal political morality specifically, for being especially moralistic. But while Williams does not take issue with the substantive content of liberal values, others who do would point out the intimate links between the epistemic assumptions of liberal thought and the content of its political morality.

  4. So articulated, Williams's argument in Realism and Moralism might be considered an extension to the sphere of political thought of his critique of morality in Ethics and the Limits of Philosophy (1985). This would by no means be a simple extension, since Williams understands ‘the political’ question to revolve around the (distinctly public) demand for legitimation.

  5. In particular, the ‘moralism’ claim here must not be confused with two other claims that resonate with it (as well as with Williams's outlook more generally): first, the charge that liberal law ‘moralizes’ in the sense of imposing a substantive morality despite its claims to the contrary and, second, the charge leveled against natural law theories, of ‘moralizing’ law, in the sense of attributing moral value to any factually accepted legal order.

  6. For a thorough treatment of this very important question, see Hübner Mendes (2013). For representative competing positions on this score, compare the critique of judicial review by Waldron (2006) with the defense by Fallon (2008). Influential earlier articulations of the debate include Ely (1980) (offering a process-based defense of constitutional review by the courts), Tribe (1980) (critiquing process-based defenses in favor of a more principled defense), and Ackerman (1991) (seeking to reconcile process- and principled-based accounts).

  7. Williams (2005, pp. 3–4). Although Williams does not try to define the field of ‘the political’, here he draws a connecting line between Hobbes and Weber (along with Carl Schmitt).

  8. I find it useful to regard political moralism as a constitutive, defining characteristic of ‘political philosophy’ as a discipline apart—distinct from, say, ‘political theory’. Williams himself considered this distinction insignificant and used the terms interchangeably.

  9. The major epistemological divide within this camp is, of course, that Bentham (1973) sought to ground the principle of utility in a claim about human ‘nature’ (and its ‘two sovereign masters’), while Kant (2012) sought to ground his supreme principle of morality in reason alone, shunning any appeal to nature. Both, however, seek timeless principles that apply universally.

  10. Plato (1997, 2004), Gorgias. The price that Socrates paid for this idealistic social psychology might account for Plato’s atypically sober realism on this matter, dramatized by the rage of the cave dwellers toward their enlightened former inmate (Plato, Republic, Book VII, 517a4-6). But the clearer contrast is of course Aristotle’s ethics of habit and praxis—a central source of influence on Williams's outlook. See especially Williams (1985).

  11. See Williams (2002, pp. 12–19), for his explicit adoption of Nietzsche’s genealogical critique, and see Koopman (2010) for a helpful analysis of Williams's call to historicize philosophy.

  12. ‘[P]olitical convictions … have obscure causes and effects’ Williams (2005, p. 13).

  13. Indeed Williams's accounts of history is more in keeping with the approach of the German ‘historical school’, which rejected attempts at universalization and elevated context. For an illuminating treatment of this movement and its significance in legal thought, see Beiser (2011).

  14. This point is at the center of Philosophy as a Humanistic Discipline, Williams (2006, ch. 16).

  15. And, stretching perhaps beyond the contours of modern political thought, one could also envisage a particularist ideology that remains ahistoricist, e.g. by way of positing a Volk with eternal characteristics.

  16. Dworkin’s [analysis] highlights the sensitivity of reflective equilibrium to sociological fact: ‘The test concededly will yield different results for different groups, and for the same group at different times, as the common ground of confident intuition shifts’ Dworkin (1973, p. 517).

  17. Discussed below, 14.

  18. I agree here with the reading provided by Philp (2012, p. 646).

  19. This is developed further by his ‘relativism of distance’ conception: Williams (1985, ch. 9).

  20. Recall that Hume’s full phrase imports precisely the charge of false pretense: ‘Reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them’ Hume (1896 [1738], p. 415).

  21. The classic sources here are of course: Ayer (1936, ch. 6), Stevenson (1944) and Mackie (1990[1977]).

  22. In this way, if no other, Williams may be taken to heed Kant: ‘Thus skepticism is a resting-place for human reason… [B]ut it is not a dwelling-place for permanent residence’ Kant (1998[1781], p. 654).

  23. Williams (2005), 12, echoing Weber’s formulation: ‘Not ideas, but material and ideal interests, directly govern men’s conduct’ Weber (1946, p. 280).

  24. For a better articulation of these tensions and their situation as the central task of contemporary political philosophy, see Forst (2002).

  25. This is a decidedly pragmatist reading of what Williams is seeking. For Williams's relationship to pragmatism, see Misak (2020) [Res Publica].

  26. In the United States, the limitation of Supreme Court competence to concrete ‘cases and controversies’ is couched in Art. III of the US Constitution. Other constitutional courts, notably in Canada and across Europe have, however, the power to issue advisory opinions on general or hypothetical questions of constitutional legality (‘abstract review’). For a critique of this distinction and the claim that judicial review in the United States is also essentially always ‘abstract’, see: Shapiro and Stone Sweet (2002).

  27. Obergefell v. Hodges 576 US _____ (2015). The evolved consensus at play here concerns the fact that homosexuality is not a chosen trait. This was a significant part of the reasoning in some of the recent decisions on LGBT rights. Note especially Judge Posner’s discussion in Wolf v. Walker 766 F.3d 648.

  28. Habermas cites the exact same passage. Habermas (1996 [1992], 213).

  29. In line with Williams's notion of political convictions having ‘obscure’ causes, albeit now taking strikingly individualistic form, Posner sees ideology as the ‘intermediary between a host of personal factors, such as upbringing, temperament, experience, and emotion—even including petty resentments toward one’s colleagues’ (Posner 2005, p. 48).

References

  • Ackerman, Bruce. 1991. We the People: Foundations. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Aristotle. 1995. Metaphysics. In Selections. trans. Irwin and Fine. Indianapolis, IN: Hackett Publishing Company.

  • Ayer, A. J. 1936. Language, Truth and Logic. London: Victor Gollancz.

    Google Scholar 

  • Beiser, Frederick C. 2011. The German Historicist Tradition. Oxford: Oxford University Press.

    Google Scholar 

  • Bentham, Jeremy. 1973. An Introduction to the Principles of Morals and Legislation. New York: NY. Hafner (1789).

    Google Scholar 

  • Bickel, Alexander Mordecai. 1986. The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd edn. New Haven, CT: Yale University Press (1962).

    Google Scholar 

  • Cohen, Felix. 1935. Transcendental Nonsense and the Functional Approach. Columbia Law Review 35 (6): 809–849.

    Google Scholar 

  • Dworkin, Ronald. 1973. The Original Position. The University of Chicago Law Review 40 (3): 500–533.

    Google Scholar 

  • Dworkin, Ronald. 1975. Hard Cases. Harvard Law Review 88: 1057–1109.

    Google Scholar 

  • Dworkin, Ronald. 1981. The Forum of Principle. NYU Law Review 56: 469–518.

    Google Scholar 

  • Dworkin, Ronald. 1983a. To Each His Own. The New York Review of Books 30 (6): 4–6.

    Google Scholar 

  • Dworkin, Ronald. 1983b. ‘Spheres of Justice’: An Exchange. The New York Review of Books 21: 43–46.

    Google Scholar 

  • Dworkin, Ronald. 1985. A Matter of Principle. Oxford: Clarendon Press.

    Google Scholar 

  • Dworkin, Ronald. 1986. Law’s Empire. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Dworkin, Ronald. 1996a. Freedom’s Law: The Moral Reading of the American Constitution. Oxford: Oxford University Press.

    Google Scholar 

  • Dworkin, Ronald. 1996b. The Moral Reading of the Constitution. The New York Review of Books 43 (5): 46–50.

    Google Scholar 

  • Ely, John Hart. 1980. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Fallon Jr., Richard H. 2008. The Core of an Uneasy Case for Judicial Review. Harvard Law Review 121: 1693–1736.

    Google Scholar 

  • Forst, Rainer. 2002. Contexts of Justice: Political Philosophy Beyond Liberalism and Communitarianism. trans. Farrell. Berkeley CA: University of California Press (1994).

  • Habermas, Jürgen. 1996. Between Facts and Norms. trans. Rehg. Cambridge, MA: The MIT Press (1992).

  • Hirschl, Ran. 2009. The Realist Turn in Comparative Constitutional Politics. Political Research Quarterly 62 (4): 825–833.

    Google Scholar 

  • Holmes Jr., Oliver Wendell. 1897. The Path of the Law. Harvard Law Review 10: 457–478.

    Google Scholar 

  • Hübner Mendes, Conrado. 2013. Constitutional Courts and Deliberative Democracy. Oxford: Oxford University Press.

    Google Scholar 

  • Hume, David. 2009. A Treatise of Human Nature. Ed. Selby-Bigge, 2nd edn. Nidditch. Oxford: Clarendon Press (1738).

  • Kant, Immanuel. 1998. Critique of Pure Reason. trans. Guyer and Wood. Cambridge: Cambridge University Press (1781).

  • Kant, Immanuel. 2012. Groundwork of the Metaphysics of Morals. trans. Gregor and Timmermann. Cambridge: Cambridge University Press (1785).

  • Kennedy, Duncan. 1997. A Critique of Adjudication: Fin de Siècle. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Koopman, Colin. 2010. Bernard Williams on Philosophy’s Need for History. The Review of Metaphysics 64: 3–30.

    Google Scholar 

  • Llewellyn, Karl N. 1960. The Common Law Tradition: Deciding Appeals. Boston, MA: Little, Brown.

    Google Scholar 

  • Mackie, J. L. 1990. Ethics: Inventing Right and Wrong. London: Penguin (1977).

    Google Scholar 

  • Mann, Roni. 2018. Non-ideal Theory of Constitutional Adjudication. Global Constitutionalism 7 (1): 14–53.

    Google Scholar 

  • Marx, Karl. 1978. Theses on Feuerbach. In The Marx-Engels Reader, ed. Robert C. Tucker, 143–145. New York: W.W. Norton & Company (1845).

    Google Scholar 

  • Misak, Cheryl. 2020. Bernard Williams and the Pragmatist Legal Tradition. Res Publica.

  • Nietzsche, Friedrich. 1974. The Gay Science. trans. Kaufmann. New York: Vintage Books (1882).

  • Obergefell v. Hodges 576 U.S. 2015.

  • Philp, Mark. 2012. Realism Without Illusion. Political Theory 40 (5): 629–649.

    Google Scholar 

  • Plato. 1997. Gorgias. In Plato: Complete Works, ed. J. M. Cooper. Indianapolis, IN: Hackett Publishing.

    Google Scholar 

  • Plato. 2004. Republic. trans. Reeve. Indianapolis: Hackett Publishing Company.

  • Posner, Richard Allen. 2005. Foreword: A Political Court. Harvard Law Review 119: 32–102.

    Google Scholar 

  • Rawls, John. 1993. The Law of Peoples. Critical Inquiry 20 (1): 36–68.

    Google Scholar 

  • Rawls, John. 1999. A Theory of Justice. Cambridge, MA: Harvard University Press (1971).

    Google Scholar 

  • Shapiro, Martin, and Alec Stone Sweet. 2002. Abstract and Concrete Review in the United States. In On Law, Politics, and Judicialization. Oxford: Oxford University Press.

  • Stevenson, L. 1944. Ethics and Language. New Haven, CT: Yale University Press.

    Google Scholar 

  • Tribe, Laurence H. 1980. The Puzzling Persistence of Process-Based Constitutional Theories. Yale Law Journal 89: 1063–1080.

    Google Scholar 

  • Waldron, Jeremy. 2006. The Core of the Case against Judicial Review. Yale Law Journal 115: 1346–1406.

    Google Scholar 

  • Weber, Max. 1946. From Max Weber: Essays in Sociology. Oxford: Oxford University Press.

    Google Scholar 

  • Williams, Bernard. 1975. The Truth in Relativism. The Aristotelian Society 25: 215–228.

    Google Scholar 

  • Williams, Bernard. 1985. Ethics and the Limits of Philosophy. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Williams, Bernard. 1990. The Need to Be Sceptical. Times Literary Supplement 4533: 163–164.

    Google Scholar 

  • Williams, Bernard. 1993. Who Needs Ethical Knowledge? The Royal Institute of Philosophy Supplements 35: 213–222.

    Google Scholar 

  • Williams, Bernard. 2002. Truth & Truthfulness: An Essay in Genealogy. Princeton, NJ: Princeton University Press.

    Google Scholar 

  • Williams, Bernard. 2005. Realism and Moralism in Political Theory. In In the Beginning was the DeedRealism and Moralism in Political Argument, 1–17. Princeton, NJ: Princeton University Press.

  • Williams, Bernard. 2006. Philosophy as a Humanistic Discipline. Princeton, NJ: Princeton University Press.

    Google Scholar 

  • Wolf v. Walker 766 F.3d 648. 2014.

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Acknowledgements

I wish to thank David Dyzenhaus and Tom Poole for providing the intellectual impetus for this work and the occasion to develop and discuss it, and Talha Syed, for his uniquely rigorous comments on previous drafts.

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Correspondence to Roni Mann.

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Mann, R. Political Moralism and Constitutional Reasoning: A Reply to Bernard Williams. Res Publica 27, 235–253 (2021). https://doi.org/10.1007/s11158-020-09466-0

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