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Book Review: Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy

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4 Responses

  1. A.J. Sutter says:

    Thanks for the interesting review.

  2. Jeff Lipshaw says:

    Another take on this is Jeremy Waldron’s article, Kant’s Legal Positivism, 109 Harv. L. Rev. 1535 (1996). I think he takes a similar tack in explaining Kant’s own views of the authority of the state, which is that because of the abstractness of the CI, there will be conflicting views of the moral right, and in the heteronomous, empirical (non-noumenal) world, that has to be expressed in positive law. (Or at least that’s what I recall about it. Brian Tamanaha also discussed this view in his “A General Jurisprudence of Law and Society” at pp. 103=04.)

  3. I appreciate the review and especially the attention accorded Ripstein’s book but I think there’s some confusion and thus misleading or inaccurate statements in the first paragraph. I don’t think Rawls had a problem with the “abstract” nature of the categorical imperative so much as the way Kant proceeded to draw out the moral implications in conjunction with specific metaphysical and epistemological assumptions and commitments, including its “foundational” or axiomatic character in Kant’s moral philosophy and theory of practical reason. For Kant at least, the categorical imperative, as the supreme principle of practical reason, “can itself be constructively justified” (Onora O’Neill), and no doubt Rawls was aware of this.

    In Theory of Justice (1971) it is not clear that Rawls has successfully stayed clear of either metaphysical or epistemological assumptions and claims of Kantian provenance. For example, his notion of “moral persons” as being “free and equal” strikes one as beholden to the Kantian ideals of liberty and equality and this would appear to unavoidably raise questions as to their metaphysical status, especially insofar as these ideals are moral principles (cf. too, for instance, where Rawls speaks of the ‘original position’ as ‘the point of view from which noumenal selves see the world’). Indeed, some communitarian critiques of the Theory of Justice were right in detecting metaphysical assumptions about “the self” or selves that Rawls sought to disavow. And this is perhaps one reason why in his later work, Political Liberalism (1993) Rawls answers (and I think concedes too much to) his communitarian critics by more clearly distancing himself in an explicit fashion from both Kantian-like metaphysics, now locating the concept of “free and equal persons” in the political doctrines of a specific political culture, “ours” (or at least ‘citizens in democratic polities;’ one reason I would prefer to describe this as ‘constructivism’ sans the Kantian adjective). As Onora O’Neill has pointedly remarked, “Like Rawls, Kant presupposes a plurality of agents who are coordinated neither by a pre-established harmony nor by the contingencies of shared ideology and norms: but unlike [the later] Rawls, he does not assume that they are fellow citizens.” Unlike Rawls, that is,

    “[Kant] does not presuppose any determinate social or political structures [hence its a priori character] not even the nexus of fellow citizens within a bounded, democratic society. Kant’s constructivism, therefore, begins with weaker assumptions than Rawls’s relies on; it begins simply with the thought that a plurality of agents [conspicuous for their capacity for rationality] lacks antecedent principles of coordination, and aims to build an account of reason, of ethics, and specifically of justice on this basis. [….] The formula of universal law proposes as the test of ethical adequacy simply that agents adopt principles which (they take it) could be adopted by, willed by, all others. As Kant puts it, a conception of the reasonable which addresses ‘the public in the strict sense, that is, the world,’ rather than the restricted public of a particular society or state. Kant’s public is not the Rawlsian public, consisting only of fellow citizens in a bounded, liberal democratic society: it is unrestricted. Hence, Kant’s conception of ethical method takes a cosmopolitan rather than an implicitly statist view of the scope of ethical concern; correspondingly, he takes a more demanding view of the construction of ethical principles in that he conceives of justification as aiming to reach all others without restriction.” (Please see O’Neill’s essay, ‘Constructivism in Rawls and Kant,’ in Samuel Freeman, ed., The Cambridge Companion to Rawls, 2003: 362; cf. too the critique of the later Rawls’s ‘Kantian conventionalism’ or ‘cultural relativism’ in T.K. Seung’s Intuition and Construction: The Foundation of Normative Theory, 1993)

    Which brings me to the claim that Rawls proferred an “intuitive account of our own deep intuitions about justice,” which is not the way Rawls himself would have characterized his coherentist justification of the principles of justice which sought vindication through the constructive procedure of the “original position.” A conspicuous feature of “reflective equilibrium” for Rawls in the Theory of Justice is its putative distance from intuitionism, “rational” or “philosophical.” Now it may very well be the case that our “considered judgments” and “considered moral convictions” originate, in the first instance, in moral intuitions or are somehow indissolubly tied to intuitions of some sort, but the notion of reflective equilibrium is epistemically and methodologically at some remove from such intuitions, at the very least, they don’t play the “foundational” or axiomatic role they do in prior theories of rational intuitionism, which allow for inferences or deductions from basic metaphysical or moral truths not subject to logical proof (yet it will not do to characterize these as merely ‘arbitrary’). Rawls’s method here is thus rightly described, unlike that of rational intuitionism, as “non-foundationalist,” admitting moral judgments and principles of varying degrees or levels of generality. In Political Liberalism, however, and as Samuel Freeman has pointed out, reflective equilibrium is now considered at least compatible with rational intuitionism and other “foundationalist views:” “Rather than contrasting reflective equilibrium with foundationalist positions like rational intuitionism, Rawls in later works instead contrasts such positions with CONSTRUCTIVISM in moral and political philosophy.”

    Lastly, it was Kant himself and thus not Rawls who first “cashed out” the notion of moral autonomy and human dignity “in terms of respect for persons” qua persons.