Political Constructivism: Foundations and Novel Applications

Work in progressMarch 09 Aaron James UC Irvine aaron.james@uci.edu What is political constructivism? And to what extent is it of general use to political philosophy? My aim is to suggest that we can extract answers to these questions from John Rawlss most clearly constructivist work, Kantian Constructivism in Moral Theory. In particular, we can formulate political constructivism as a general approach to political philosophy which is free from at least two limitations that Rawls himself might otherwise seem to place on its potential scope. The first is the special political constraints of the later Rawlss political liberalism. Although Kantian Constructivism in Moral Theory foreshadows Rawlss later political turn, it presents a distinct pre-political constructivist approach which was at best implicit in the earlier A Theory of Justice. My question is what this distinct approach is. The second limitation, which appears across Rawlss corpus, is that Rawls never clearly formulates his constructivism independently of the specific social contexts that interest him, the major institutions of modern constitutional democracies and modern international law and practice.1 And it is not otherwise obvious how his specific accounts should generalize into to other areas of social life. What their general, underlying rationales might be and how if at all they apply is at best highly controversial. 2 Indeed, according to one plausible view, sometimes suggested by Rawls himself, political constructivism assumes certain basic structures, and so applies nowhere else. Unless it

could be argued that the remaining areas of social life never raise relevant concerns of social justicea difficult sort of argument to makepolitical constructivism becomes of at best of limited (albeit still significant) use to political philosophy. 3 My more general characterization of political constructivism will allow it to have broader application. As I will explain, the approach has fruitful application in at least two important areas of world politics: the institutions that organize the global economy (especially the system of trade), and international human rights-motivated interventions other than the use of outright coercion and force (e.g. jawboning). Moreover, the account allows us to situate the demands of the political, in Rawlss special sense, as arising in certain special contexts, but not necessarily in any situation where questions of social justice might come up. As will become clear, the key to a general understanding of political constructivism is to develop the politically central form of practice-sensitive argument, which remains, despite Rawls, poorly understood.

GENERAL ELEMENTS The robust version of political constructivism I attribute to Rawls can be expressed in the form of several meta-ethical, moral, and political/methodological theses. 4 The first, meta-ethical thesis is Protagorean Constructivism, which includes two claims:

Meta-ethical Constructivism: Necessarily, an ethical proposition of the kind in question is true, or a fact, if and only if (and because) anyone capable of following the norms of practical reasoning would affirm it (as true) on the basis of

valid, faultless reasoning, in conditions optimal for practical reflection. 5

The Protagorean Constraint: Necessarily, the valid norms of practical reasoning cannot outstrip human reasoning practice. If a putative norm is not generally fulfilled in the human practice of questioning, attending, considering, and deciding in matters of practical evaluation, it is thereby disqualified as a valid norm of practical reasoning. 6

This is not yet to single out any distinctive form of reasoning or judgment appropriate for morality or social justice as compared to other ethical domains. According to

Moral Contractualism: social justice is part of the moral domain that T. M. Scanlon calls what we owe to each other.7 The principles of social justice depend on, and are a function of, conclusions of moral reasoning about what normally conclusive regulative principles everyone can reasonably accept.

If this is to say that social justice is continuous with larger morality in certain important respects, one can still hold that it is discontinuous in others. According to

Structuralism: collectively sustained and governed social practices or institutions present a distinct occasion for public justification. Specifically, the question of social justiceof what principles ought to conclusively guide collective governanceis to be settled independently of the requirements of interpersonal

morality.

But exactly how, beyond asking what is reasonably acceptable, is this distinct question of justification to be resolved? According to

Conception Dependence: Reasoning about principles of justice is to be framed by an independently defensible conception of their subject, e.g., the nature of the institution or social practice in question.

And how is this independent conception to be explicated and defended? According to

Moralized Interpretation: Proposed conceptions of the regulated subject are to be defended by moralized constructive interpretation, which both non-morally identifies the object of interpretation and attributes to it implicit moral aims, principles or self-understandings.

If the foregoing theses comprise the robust political constructivism I attribute to Rawls, it is noteworthy what this leaves out: in its general form political constructivism makes no essential reference either to original position reasoning, or to the special political constraints of the latter Rawlss political liberalism. As I will now explain, we see this in Kantian Constructivism in Moral Theory (hereafter KCMT), Rawlss most explicit and unabashed constructivist work.8

KANTIAN CONSTRUCTIVISM IN MORAL THEORY In KCMT, Rawls says for the first time that A Theory of Justice (hereafter TJ) presents a constructivist doctrine. The striking implication is that his domestic theory is far more historically-specific and culturally-sensitive than TJ let on. It is addressed not simply (as TJ explained) to the human condition, the Humean circumstances of justice, the general facts of men in society, and an established basic structure of institutions, but specifically to democratic societies, and, indeed, to a quite specific impasse in our political culture, a conflict between two traditions of democratic thought (in Constants terms, the conflict between the liberties of the ancients, as emphasized by Locke, and the liberties of the moderns, as emphasized by Rousseau). (KCMT 307) This democratic preoccupation is not simply a practical application of TJ to going concerns. Nor does it reflect the special demands of Rawlss later political liberalism, as he had yet to recast his constructivism as a political doctrine in the sense which implies neutrality as regards comprehensive philosophical or moral doctrines. 9 Rather, it is supposed to reflect nothing less than the real task of political philosophy, which is to find reasonable grounds for reaching agreement rooted in our conception of ourselves and in our relation to society. (KCMT 307) As Rawls explains, this task replaces the search for moral truth interpreted as fixed by a prior and independent order of objects and relations, whether natural or divine, an order apart and distinct from how we conceive of ourselves. The task is to articulate a public conception of justice that all can live with who regard their person and their relation to society in a certain way. What justifies a conception of justice is not its being true to an order antecedent to and given to us, but its congruence

with our deeper understanding of ourselves and our aspirations, and our realization that, given our history and the traditions embedded in our public life, it is the most reasonable doctrine for us. We can find no better basic charter for our social world. (KCMT 307) But why should the real task of political philosophy have this form? How exactly can the truth about principles of justice for a certain social setting be other than fixed by a prior and independent order of objects and relations, and instead decided by what is most reasonable for us? And how exactly could what is most reasonable for us depend on how we conceive of ourselves, as somehow informed by our history and the traditions embedded in our public life? As Ill now explain, Rawlss answers reflect each of the general theses stated above. As regards the first question, Rawls, following Kant, is assuming what I am calling Protagorean Constructivism, in contrast with the realist or rational intuitionist view that ethical truth is independent of any idealized responses of practical reasoners. This is especially clear in his a revision of KCMT, in PL, where he puts the relevant thesis as a relation of constitution: the order of moral and political values must be made, or itself constituted, by the principles and conceptions of practical reason [The] order of values does not constitute itself but is constituted by the activity, actual or ideal, of practical (human) reason itself. (PL 99) [T]he affirmation of reason is rooted in the thought and practice of ordinary (sound) human reason from which philosophical reflection must begin. (PL 101) 10 Note that, while this thought is partly captured by Meta-ethical Constructivism, that

thesis is consistent with the view that all human attempts at practical reasoning are radically in error, perhaps because they fall radically short of the true valid Platonic Norms of Reasoning, or the norms or habits of reason found within the eternal mind of God. But Rawls means to suggest (and attribute to Kant) the view that such brute error is impossible, that is, what I am calling the Protagorean Constraint: valid reasoning cannot outstrip human reasoning practice. It follows that the task of political philosophy is not, as Rawls puts it, an epistemological problem solved by discovery of a prior and independent order of objects and relations, whether natural or divine. The task is to derive or construct principles of justice (general ethical truths) by an active exercise of human practical reasoning, which expresses the best understanding of that practice, and thus to in effect speak for humanity about the issue of justice in question. Though one might be said to discover what any one would say about the case hand after thinking about the matter, there is no independent order to have knowledge of. This of course raises large foundational questions. 11 One of Rawlss major innovations was to side-step them.12 No practice can be adequately interpreted or even identified except by understanding it to a great extent from the inside. 13 And there is no need to seek, or even despair the lack of, a general and final conception of practical reason if we can make significant gains in understanding its verdicts for specific areas of human life. It is fine and profitable to put substantial, context-specific moral or political philosophy first. Yet, because Protagrorean Constructivism doesnt specify what form or method of reasoning is appropriate in political philosophy, it does not imply or justify any

specific conclusions or principles of justice. 14 How then should we proceed? Rawlss suggests (in the above quoted passage) that we consider what is most reasonable for us. He explains by appropriating Kants moral theory. Kantian constructivism specifies a particular conception of the person as an element in a reasonable procedure of construction, the outcome of which determines the content of the first principles of justice. (KCMT 304) But why is a reasonable procedure of construction relevant from a moral point of view? Kant of course makes strong claims about the autonomy and moral dignity of persons. Yet this is not to say that any reasonable procedure of construction will necessarily transfer moral content to any conclusions we reach. The procedure of construction needs to be reasonable in a morally relevant sense, which Kants theory does not directly explain. Here Rawls seems to be assuming a reasonableness notion of the sort that Scanlon has explicated, following Rawls. According what I am calling Moral Contractualism, the basic moral concern is justifiability to each person, where what is so justifiable depends (in the sense of Meta-ethical Constructivism) on conclusions about what principles of conduct each person can reasonably accept.15 Insofar as a reasonable procedure of construction helps us reason about what is reasonably acceptable to all, then, it is morally relevant. Its output can qualify as justice. That is not to say it is justice, which brings us to a further important way Rawlss reference to Kant is misleading. After the above passage, Rawls explains why his own reasonable procedure of construction will, quite unlike Kant, make no attempt to derive justice from a conception of rational agents taken by themselves: On the Kantian view that I shall present, conditions for justifying a conception of

justice hold only when a basis is established for political reasoning and understanding within a political culture. The social role of a conception of justice is to enable all members of society to make mutually acceptable to one another their shared institutions and basic arrangements, by citing what are publicly recognized as sufficient reasons, as identified by that conception. (KCMT 305) In this sense, political constructivism justifies principles, by a reasonable procedure, both for and from a contingent and independently established basis, which somehow includes both shared institutions and an associated political culture. But why should there be any such basis? Moreover, why this basis, in shared institutions and political culture? As to the former question, both Protagroean Constructivism and Moral Contractualism allow different principles of regulation to have different bases if the reasoning behind them specifies different conditions of application (different action types or circumstances). There is no pressure to start out assuming that principles must apply comprehensively, to any human affairs (e.g., as according to classical utilitarianism); constructive reasoning can proceed in a piecemeal way. 16 Indeed, Moral Contractualism requires justification to be quite circumstance-specific. Because principles by nature provide normally conclusive reasons for action, to independently specified agents, any reasonably acceptable principles must be sensitive to a given agents contingent powers of self-regulation, including not only his or her material circumstances, but also his or her capacities to intend, plan for, know, recall, conceptualize, and understand a proposed expectation. Yet, as his reference to shared institutions suggests, Rawls assumes the need for

a basis far more artificial than so many individuals and their powers. Rawls is assuming what I am calling Structuralism, the idea that collectively sustained and governed social practices and institutions present a special occasion of public justification, which cannot be addressed simply as matter of individual morality. Rawls never provides fully general grounds for Structuralism, focusing instead on what is special about the area of his specific concern, the basic structure of society.17 This has opened Rawls to objections18 that he could have avoided if he had instead defended Structuralism in general terms (of which more below). Granting for the moment that the basic structure does present a special, essentially public occasion of justification, how is justificatory reasoning to proceed? Rawlss answerwhich this time is truly appropriated from Kantis what I am calling Conception Dependence: reasoning about principles is to be framed by an independently defensible conception of their subject. If our shared institutions are the relevant subject, then assuming we can plausibly characterize ourselves and our society in certain general termsby certain model-conceptions (KCMT 307-8)we can rephrase the question of social justice in more specific terms, which lend themselves to more informative reasoning, clearer competing answers, and more convincing reasons and verdicts. In democratic society, Rawls suggests we conceive of persons as free and equal moral persons, and society as a publicly governed fair scheme of cooperation, for the sake of mutual benefit. In that case, we rephrase and thus frame the question, What is a just society?, as the question, What public terms of cooperation are fair among persons, consistent with their remaining both equal and free? It is in response to this more contentful question that Rawls then works out the rest of his theory, including his list of

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primary social goods, the original positions design (e.g. who is represented, how much the parties know, etc), and the resulting argument for his two principles. If these last steps are familiar, I should emphasize that I am claiming that original position reasoning is not a general element of political constructivism. It is a particular form of Conception Dependence, a particular way of working out principles from a prior conception of their subject. Reasonably acceptable principles for social structures can also be defended directly (or informally, as Rawls sometimes puts it) within the framework of Moral Contractualism, Structuralism, and Conception Dependence. Indeed, Rawlss conception of human rights has precisely this form (of which more below). But can we say more in general terms about what Conception Dependent reasoning involves? To answer, consider the status of the assumed conceptions of person and society. Where do they come from? Rawls answers that, in democratic society, they are implicit in its public culture. He explains: The real task is to discover and formulate the deeper bases of agreement which one hopes are embedded in common sense, or even to originate and fashion starting points for common understanding by expressing in a new form the convictions found in the historical tradition by connecting them with a wide range of peoples considered convictions: those which stand up to critical reflection. (KCMT 306, PL 13-15) Here Rawls is assuming what I am calling Moralized Interpretation. His framing conception of the shared institutions in question is offered as moralized constructive interpretation of the kind of social form democratic society is. 19 The idea that society is

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a publicly governed scheme of cooperation, which is open to fairness assessment, makes the best overall interpretive sense of our societys history, public texts and speeches, avowed or assumed principles, specific institutions, legal and judicial practices, and so on. Rawls tends to simply put forward his proposed conception in its most plausible form instead of ruling out rival interpretive conceptions. But his proposal is in principle open to thorough interpretive defense.20 That defense aside, Moralized Interpretation combines elements of two opposing approaches. It is distinct, on the one hand, from pure interpretive views which attempt to derive moral content solely from social interpretation.21 It also distinct, on the other hand, from pure moral argument which merely applies to society what are seen as full fledged abstract principles, without grounding their content at least partly in interpretive claims about societys nature.22 Like the pure interpretive approach, any characterization must initially identify the object of interpretation in purely non-moral terms, as a matter of pure social interpretation (e.g. the major institutions of modern society). But like the pure moral reasoning approach, it can also draw from substantial moral considerations in characterizing the implicit moral content of given arrangements.

QUESTIONS OF RATIONALE Even if I am right that KMCT contains the robust set of theses I have outlined, that is not to of course say that a more modest collection of claims might not equally deserve the name political constructivism. Indeed, one might object that one more of the stated general elements are unnecessary, leaving a paired down but no less genuine political constructivist approach. I want avoid the verbal issue of what to call political

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constructivism, but it is worth discussing several versions of this kind of objection what might be called the pairing down objection. This will allows us to consider specific rationales for one or more of the general elements, as well as ways they are mutually supporting. This will also bring out the distinctive aim of political constructivism in its Rawlsian guise. A first version of the pairing down objection asks: isnt the proposed meta-ethical background itself sufficient for political constructivism, at least provided the trivial assumption that matters of social justice fall within the ethical domain? In that case, Protagorean Constructivism applies to justice as well. While this would strictly follow, it remains true that any full defense of Protagorean Constructivism would require working out a more specifically political approach. Should we admit that the general doctrine is acceptable as a thesis which includes justice? Only if we have reason to think that our standards of good practical reasoning somehow support plausible conclusions about justice. Rawlss approach suggests this, but something like it must in any case make a case. Of course, the pairing down objection might instead reject the proposed metaethical and moral background and instead offer more narrowly political constructivism about social justice.23 One might, for instance, accept Structuralism, Conception Dependence, and Moralized Interpretation and yet reject Protagroean Constructivism and even Moral Contractualism. My answer is that one can in theory do so, but this is not to say that the proposed constructivist meta-ethical and moral background is irrelevant. For not any such background will do. On certain views, the reasoning required by Structuralism, Conception Dependence, and Moralized Interpretation will not generate

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conclusions of justice: it wont speak for justice if ethical truth is a function of Gods commands and practical reason provides minimal revelatory insight. To be sure, some non-constructive form of rationalism which places greater confidence in human reason might indeed enable political philosophy as Protagorean Constructivism and Moral Contractualism do. Yet this account needs to be provided. The two theses are dispensable only if something comparable is put in their place. (And the same goes if we also grant Moral Constructivism. If Protagorean Constructivism is rejected, something comparable must be put in its place.) Of course, among the general theses, Structuralism, Conception Dependence, and Moralized Interpretation might seem most in need of justification. And, indeed, even if we reject them, we might say that Protagorean Constructivism and Moral Contractualism get us quite close to justice: we can see principles of justice as conclusions about what principles for the regulation of behavior no one could reasonably reject. Why must Structuralism, Conception Dependence, and Moralize Interpretation come into the picture? Since these are central but poorly understood Rawlsian claims, we should consider them in somewhat greater in detail.

WHY STRUCTURALISM? A first version of this pairing down objection asks why we should accept Structuralism. Why cant any principles of justice be derived from more basic principles of interpersonal morality, principles which perhaps require practices or institutions for their effective implementation, but not for their very applicability. Why should social practices and institutions present a fresh occasion of public justification, which requires

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its own, independent principles? One answer is as follows. Political philosophy is concerned with large-scale patterns of distribution or conduct which are largely beyond the regulative control of individuals as such. Such patterns must therefore be assignable as essentially collective responsibilities, to collectively sustained and governed social practices or institutions which do substantially control them, or else simply left to fate. When collective attribution is defensible, as it often but not always is, this creates a special occasion of justification, in at least the sense that the justification of individual conduct, as such, cannot be the issue. Any choice of organization must be acceptable to everyone affected, in light of its resulting distributions. But that choice cannot be a question of the justifiability of individual conduct as such, since it is itself beyond any individuals regulative control. It must therefore be a matter of collective governance.24 But why is this special occasion of justification also of a public kind, as Structuralism claims? Rawls speaks of publicity in many senses, but at least two minimal senses flow from the needs of collective governance. In general, normally conclusive collective responsibilities are supposed to be of a kind which can in principle be effective (barring extenuating circumstances) over how people govern a common practice or institution over time. Any conception of justice which has this role is answerable to certain essential preconditions, which include publicity preconditions related to (i) the ongoing existence of the governed practice itself and (ii) its effective collective governance by a conception of justice. The first of these two preconditions relates to the conditions under which it is possible for a social practice to exist over time. Because each of the individual agents

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involved themselves will have limited powersand because there is no single irreducibly collective minda practice will exist, and continue, only because different agents are coordinated by interpersonal agreements or understandings. Whether in games, families, or legally regulated social life, agents must be coordinated despite their potentially divergent understandings, reasoning, and judgments. This requires (perhaps imperfect) convergence on common rules, as common knowledge, but also convergence on such less-readily-specified matters as: what their common association is, what its mutually understood aims or organization involves, who is involved, what degree of compliance exists, what considerations are relevant to the choice of structure, how collective adjustments are to be made, who, if not everyone, is in charge, and so on. In each such case, because distinct agents are involved, the relevant coordinative understandings or agreements are essentially interpersonal. In that minimal sense, they can be seen as an essentially public accomplishment.25 That not yet to say moral principles for such a practice must be in any sense public as well. What it takes for a practice to exist and what a practice ought to be like are different things. But if the ought in question is that specified by normally conclusive regulative principles, our second precondition does limit what principles could be like. Principles have to be of the general sort that can effectively govern the collective to which they are addressed. And this in turn requires that the principles themselves be, at least to a certain degree, part of the sustaining coordinative understandings. Rousseau might here invoke a substantial ideal collective self-governance. But I suggest that here a less substantive, more Hobbesian thought will suffice: if there is too much disagreement about what the conclusive regulative principles are, beyond finer points of interpretation

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or implementation, the proposed principles cannot be effective as a form of collective regulation. Without public understandings (even if not those given by a sovereigns rule), the agents are returned to a (perhaps benign) non-collective state of nature in which each relies only on his or her own private judgment.26 Regulative principles of justice must then be, to a certain (perhaps limited) degree, not only acceptable but publically accepted.27

WHY CONCEPTION DEPENDENCE? Even if we should therefore accept Structuralism, the question remains why Conception Dependence and Moralized Interpretation should be necessary. Along with a suitable meta-ethical and moral background, such as Protagorean Constructivism and Moral Contractualism, it implies a form of moral constructivism concerned with collective governance: we construct principles of what we owe to each other, for contexts of collective governance, based on claims about what people could reasonably reject. Why not regard these as principles of justice? What is Conception Dependence also needed? I will suggest two reasons. First, Conception Dependence follows, if not by entailment then by natural elaboration, from the other theses in the constructivist package I have outlined. Second, it is in any case necessary insofar as political philosophy aims to address central, essentially normative questions of social justice. This last consideration will explain why Moralized Interpretation has an essential role. To start with the first of these considerations, notice that Protagroean Constructivism implies that normative political philosophy is an essentially interpretive enterprise. To characterize a principle of justice is in effect to offer an interpretation of

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human reasoning practice, which is accountable in principle to the reasoned judgments others would make, to a common sense. Moral Contractualism in turn adds that any principles of justice must be justified in light of further interpretive judgments. As normally conclusive principles for a specified type of agent, their content must be informed by morally informed interpretive claims about the agents general capacities to govern his or her conduct in practice. In particular, principles cannot be so specific, or so vague, that they are impossible or unduly difficult to follow. What is not too specific, or too vague, but rather just right in level of abstraction, is in part a matter of basic interpretive judgments about what people can conceptualize, recall, plan for, and act on, under different assumed circumstances. Finally, Structuralism implies that the relevant addressed subject will be a collectively governed social practice or institution, and so that any justification of principles must be sensitive not only to the given capacities of collective regulation, as identified by interpretive judgments, but also to our two publicity preconditions. That is, as a matter of existence conditions, any justification will depend on interpretive claims about what coordinative understandings are essential for the ongoing existence of the kind of practice in question, including its basic understood purposes, and main organization forms, as rationalized by those purposes. As a matter of effectiveness conditions, the class of eligible principles will be delimited by interpretive judgments about whether there exists, within the essential coordinative understandings, the background of substantial agreement needed for principles to govern the collective effectively. Taking all this for granted, Conception Dependence follows provided a single further assumption: that only a shared conception provides the necessary background of

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agreement. That is to say: only principles which are justified in light of a shared conception of the practice in question, as attributed to the group by interpretive claims about what its members explicitly or implicitly assume, will be adequately based in the background of agreement needed for effective collective governance. Indeed, still weaker assumptions will do. A weaker version holds that a shared conception is not necessary for effective collective governance generally, but that it is necessary over the issue-areas in question (e.g., the basic organization of the practice in question). And according to a version which is weaker still, such an interpretive conception is merely sufficient to provide the necessary background of agreement. Even if it is perhaps not strictly necessary, it might be necessary presumptively: a case would have to be made that an adequate background of agreement is otherwise available. The question, then, is why some such version of this assumption should be granted. The answer, I take it, is that it is necessary if principles of justice are to be normative in a sense closely associated with the central form of political argument that Rawlsian political constructivism seeks to characterize. The general aim of political constructivism, we may say, is to develop a quite pervasive form of political argument which draws from agreed upon conceptions as much as pure moral argument. Rawls appeals to quite sweeping conceptions of persons and society in his argument, but framing interpretive conceptions can be, and often are, specific as well. Arguments about moral rights of due process, for example, depend as much on claims about the nature of institutional authorityits essential purposes, tendencies to be abused, the feasible protections availableas on claims about the wholly independent interests or claims of subjects. Similarly, consider arguments about

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what moral rights a society should, or should not, constitutionalize. These are not direct appeals to pure moral considerations, but rather arguments about what rights should be largely taken off of the political and legislative tablea quite specific governing role. More generally, much of political morality presents principlese.g., ideals of equality or opportunityas though they are widely recognized and definitive of the political community in question, instead of simply citing moral principles from scratch. To cite the Declaration of Independence is not simply to cite the substantial values affirmed there, but also their founding role, as publicly declared and continually accepted. (The phrase we hold these truths to be self-evident may not imply a substantive claim of self-evidence, but rather a declarative affirmation that they are and shall be held as selfevident, i.e., in need of no further justification, for practical purposes.) Yet in all such cases, the argument is a specifically moral argument; it cannot, in its common usage, be reduced to any set of purely legal or sociological claims. It is an argument about what ought, morally, be done within the social or institutional context in question. One distinctive mark of this form of argument is that it purports to be normative in at least two ways that appeals to pure moral values need not be. Proposed principles are normative, first, in the sense that, insofar as they are justified, one cannot reject them as inapplicable (e.g., as fine for a perfect world, but nowhere else). Since they are justified specifically for the social context in question, under a putatively agreed-upon conception of the relevant subject, this objection simply fails to understand the kind of argument on offer. Second, justified principles are normative, in the sense that one cannot deny their conclusive significance for social choice (e.g. as a nice ideal for us but not what we ought to do). If a proposed argument has not successfully justified

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normally conclusive principles for the political context in question, it has failed on its own terms.28 In both cases, the purported principles are assumed to count as normative because they are appropriate for the structure in question, as justified under a conception of the sort of structure it is.

WHY MORALIZED INTERPRETATION? This allows us to answer the final pairing down objection we will consider. Why Moralized Interpretation? Though nothing we have said strictly implies, it is clear enough that nothing else will do. Weve already said why pure moral reasoning is insufficient. Normative principles need to be justified for the structure for which they are normative, in light of interpretive claims about what the relevant form of collective activity is, as identified by its aims and characteristic organization. Again, given Conception Dependence, the framing conception must be attributable to the practice or institution at issue. But the necessary attributing interpretive claims cannot be justified as a matter of pure social interpretation, either. No set of purely social interpretive claims justify a moral principle without moral assumptions. And even if they are meant simply to characterize the context of a principles application, what features of a social form are relevant is itself a moral matter. Thus the need for an intermediate position, Moralized Interpretation, which makes interpretive claims but is informed by moral judgment. Again, like the pure interpretive approach, any characterization must initially identify the object of interpretation in purely non-moral terms, as a matter of pure social interpretation (e.g. the major institutions of modern society). But like the pure moral reasoning approach, it can also draw from substantial moral considerations in

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characterizing the implicit moral content of given arrangements. There need not be any bright line between substantive moral judgment and moralized interpretive attribution. Consider how Rawls slides freely from mention of considerations already embedded in common sense to arguments that originate and fashion starting points for common understandingalthough these, too, must be found in the historical tradition or at least connected with a wide range of peoples considered convictions: those which stand up to critical reflection. (KCMT 306) Thus the proposed moral considerations or conception may only find explicit acceptance once they are clarified and critically reflected upon, being merely implicit before that time. The key is that anything we say along these lines must be credible, where the standard of credibility and ultimate success involves both normative and interpretive perspicuity. A proposed moral conception could be plausibly rejected as inappropriate based on highly credible interpretive claims about the non-morally identified object of interpretation. Yet proposed interpretive data could also be discounted or marginalized based on substantial moral considerations which have broad moral appeal and a distinct interpretive grounding. As always with interpretationin art, literature, or lawthe best conception is that which makes the most overall sense of its object, according to a range of relevant criteria. Thus political constructivism offers political philosophy a way of systematically engaging the reality of political life and debate in a way which promises to yield deep and generally applicable but strongly normative principles for social choice. This means that political philosophy has to deal with both messy questions of social interpretation and the complex extenuating circumstances and the delicate balance of values attendant to any issue of social choice. But why should political philosophy be anything less? One

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can of course be skeptical whether the needed interpretive or moral arguments will often or ever be available. But, again, such skepticism need not debilitate political philosophy; it is simply an occasion for turning to particular areas of social life and seeing how far the argument pans out. And political constructivism does provide a framework for managing the interpretive and moral complexity of a given case, in a way which allows one to both capture the strengths of opposing arguments and isolate their differences. One quite general worry is that any such approach is objectionably biased toward the status quo. The view that all moral principles require defense as a matter of pure social interpretation would clearly leave insufficient room for moral criticism. In effect, judgments of injustice reduce to claims of internal inconsistency. Why should Moralized Interpretation be different? There is little need for concern if our interest lies not in what should be done here in the actual world. Then the necessary social interpretation is a simple matter of hypothetical stipulation: we specify the context and social form we are interested in and go from there. Normative principles addressed to actual agents are, however, accountable to what their existing social forms happen to be like. Does this mean that reasoning about justice will inevitably be too constrained by the very social realities which are supposed to be in question? Not necessarily. Elsewhere I explain in detail how political constructivism has significant critical resources. The question is not whether there is any special status quo bias problem, but rather whether a reality-sensitive theory is adequate, all things considered.29 For present purposes, it suffices to say that political constructivisms critical resources run quite deep. How deep they run depends on how we answer two questions: (1) How minimal are the necessary pre-conditions for proposed principles?

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and (2) How relaxed are the relevant cannons of interpretation for attributing those preconditions to a given group? If the relevant preconditions are minimal, and the relevant cannons are lax, political constructivism is quite consistent with deep constructive critique. We can then say, for example, that Rawlss theory does not require a specifically democratic society, because its minimum social pre-conditions can be credibly attributed to most any human society. 30 The needed understandings are perhaps clearly manifest in societal consciousness and politically effective only after a long historical process of injustice, reform, and increasing collective self-understanding, yet there all along.31 In this case, Rawlss democratic focus simply gives his ambitious argument a modicum of interpretive modesty, making it easer to defend. 32 The still more ambitious (e.g. Hegelian) political constructivist will dig more deeply into the social firmament. So we can view political constructivism as capturing a distinctive form of political argument, and in this way making a contribution to political philosophy. That is not, however, to say it is broadly applicablethat it can be anything more than a small part of political philosophys concerns. Even if we go so far as to grant that Rawls has given us constructed principles for his focal areas, the question remains whether the more general methodology of justification has fruitful application elsewhere. Does it also apply to other politically important areas of social life, for instance, the global economy, or contemporary international human rights practice? I now explain how it does apply in both cases, taking each in turn.

FAIRNESS IN THE GLOBAL ECONOMY

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Although the global economy receives at most passing attention in Rawlss international theory, it is now among the foremost concerns of world politics. This is not only because of the ongoing global financial crisis, but because of long-standing moral questions about trade law and policy and, more generally, about how to manage a world of both political decentralization and ever-increasing but partial economic interdependence. How do we construct principles of justice for this situation? In using the constructive method as outlined above, we start by trying to indentify a plausible social or institutional subject of regulative principles (Structuralism) which can be morally characterized (Moralized Interpretation) in a way that frames the question of principle (Conception Dependence). Thus I suggest (and argue elsewhere) that the global marketplace is and for the foreseeable future will be fundamentally organized and shaped by an international market reliance practice, for the sake of mutual national income gains (via productionenhancing specialization).33 The basic practice, whereby countries mutually rely on common markets (in goods, services, or capital), is to be distinguished from particular market transactions, transactional flows across borders, as well as particular trade or trade-related policies (tariffs, quotas, safeguards, subsidies, etc.) that influence transactional flows. The practice is also distinct from, but more closely related to, formal trade law (e.g. World Trade Organization rules), other international agreements or expectations (e.g. concerning capital controls or stimulation-geared public investment), and informal understandings of how the balance between market and state is to be struck (e.g. the post-war embedded liberalism compromise). Such rules or understandings represent substantial market reliance expectations, the terms of participation in the larger

25

market reliance practice, but not the larger practice itself. The practice itself is the underlying social fact that countries do comply, more or less, with some system of market reliance expectations, for the sake of larger, mutually shared ends. This characterization so far identifies a collectively governed social structure (in accord with Structuralism) as the object of interpretation, in non-moral terms (as Moralized Interpretation initially requires). We can now add a framing moral characterization of this structure (in accord, again, with Moralized Intepretivism and Conception Dependence): the international practice of market reliance represents a (formally and informally) governed cooperative scheme for mutual benefit, which, as such, raises questions of fair distribution. This is an interpretive claim, I suggest, because it can be defended as implicit in international intellectual and political culture. Talk of fair trade and reciprocity is the basic currency of moral argument in the trade context. Its significance is strongly represented in classical and popular mercantilist thought and argument. And, as the following considerations suggest, it even appears, albeit more implicitly than explicitly, in classical trade theory. Although trade theory has often emphasized the unilateral benefits of trade and reluctantly used fairness discourse, it has always explained its value in terms of ongoing, long-standing mutual and cooperative liberalization among countries. 34 The reluctance to engage in fairness discourse and discuss relative gains has long been a reaction to mercantilist abuses of these notions that threaten to destabilize the cooperative liberalization practice. Indeed, the central economic doctrine of comparative advantage is precisely the claim that trade represents mutually beneficial specialization. 35 Finally, more recent arguments that treat trade as a mere means to utilitarian efficiency were not central to the founding

26

Keynesian vision of the post-war economic system. And while they have surely had some influence, they have rarely determined the systems subsequent adjustment (something ideological economists constantly complain of). What is less clearly implicit, and more a matter of deep presupposition, is the specific form that basic normatively conclusive mutuality and fairness concerns take. I suggest that that the central such moral issue is that of international structural equity in how the market reliance practice is organized, especially in light of how rules or expectations distribute the harms of the practice to individuals (e.g., unemployment, wage suppression, and income volatility) and countries (e.g. suppressed growth due to foreign financial crises), as well as the practices intended benefits (e.g. the gains of trade such as increased income due to allocative efficiency, economies of scale, and the spread of technology.) This concern can be seen as a (relatively) basic issue of fairness in the sense that we can illuminatingly characterize a wide-range of other fairness concerns with reference to it, including such politically salient notions as nondiscrimination, special and differential treatment, fair trade, fair play, fair competition, level playing fields, equitable growth, fair wages, and exploitation.36 But how might this conception of the fairness issue frame reasoning about social justice (as required by Conception Dependence)? It does so by shaping both the form that regulative principles take and the kinds of interests or claims that are relevant to fairness argument.37 For one thing, if principles are addressed as regulative principles, then they are addressed to the types of agents that primarily govern the international economic system, that is, countries and their representatives. The principles are not

27

primarily addressed to market actors such as individual consumers, but to those who shape the institutional context for market relations. Moreover, as I understand it, the idea of structural equity is generally concerned only with the types of benefits and burden that the cooperative practice creates. Thus, while the harms created can befall individuals, in a way that gives individuals, as such, claims to compensation, the distribution of relative gains takes an international form. The aim of trade is generally the creation of countrylevel (aggregate or average) benefits, such as national income gains. So such national gains are the goods relevant for comparative, egalitarian claims. We can, by contrast, imagine a conception of fairness which instead makes egalitarian demands of a cosmopolitan or global kind, allowing direct comparison of the relative gains or losses to any two individuals, now matter where they live. My present claim is that this view would not be grounded in a conception of the social structure under review. It could not plausibly be regarded as the result of Moralized Interpretation as applied to the trade context: its organizing aims and structure are too deeply international for that. The remaining stage of argument is to propose and justify substantial fairness principles, on the grounds that they are regulative principles which everyone can reasonably accept. I wont make such a case here. 38 For present purposes the crucial point is that this argument does engage in straight moral reasoning about what is reasonably acceptable in the specified context, given relevant extenuating circumstances and the balance of relevant interests and values. And, as suggested above, while we might run an international original positionwe ask what international principles people ignorant of their positions would accept, given their interest in protection against global economic forces, and in living in a society that sees the gains of integrationthis is not

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essential. The argument can be made in informal terms, which directly address the question of reasonable acceptability to all. Insofar as principles can be justified as reasonably acceptable for the international market reliance practice, we may (given Protagorean Constructivism and Moral Contractualism) regard them as general truths about what justice requires in the global economy. Indeed, insofar the justification appeals to grounds that do not assume further regulative principles (e.g. we assume only the interests briefly sketched above), the principles justified count as fundamental principles of justice for the trade context. They apply, as normally conclusive demands, even if we assume no further human rights or global justice principles.

MULTI-FUNCTIONALISM ABOUT HUMAN RIGHTS If Rawls paid at most passing attention to the global economy, our second fresh context for construction starts from Rawlss quite developed account of human rights in The Law of Peoples. Rawlss interest is in what he calls international law and practice, which is both a kind of governed social structure (in accord with Structuralism) and initially identified in non-moral terms (Moralized Interpretation). 39 Given ideas found in international political culture (Moralized Interpretation again), Rawls then presents international law and practice as a society of peoples whose defining goals are the absence of war, universal basic social justice (decent domestic institutions), and mutual respect for societal collective self-determination. This conception (given Conception Dependence) in turn shapes both the form and output of original position reasoninge.g, the parties represent not individuals but whole societies, and choose essentially international principlesas well as his independent account of human rights. Given the

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appropriate arguments of reasonable acceptability, then, we can conclude (given Protagorean Constructivism and Moral Contractualism) that the proposed principles are general truths of justice for international relations. I focus here on Rawlss independent account of human rights. It is independent of original position argument, because, although parties behind the veil of ignorance agree that societies are to respect human rights, this merely reflects the sorts of societies represented: only decent, human rights-respecting societies are included. What societies count as decent, and so what rights count as human rights, is a separate issue, which Rawls resolves by way of a distinct Conception Dependent argument. The argument starts with a conception of the special governing role of human rights in international law and practice, and then justifies a favored list of rights (a set of principles) based on that functional conception. Specifically, the primary and indeed the only proper function for human rights claims in world politics is the legitimation of coercive military or economic intervention in a societys internal affairs, intervention which would otherwise be impermissibly disrespectful or intolerant of a societys selfgoverned decisions. (This conception Rawls accepts as a matter of Moralized Interpretation.) The class of human rights is, then, the special class of urgent rights which it is not disrespectful or intolerant to enforce, by force or coercion, for the sake of basic societal justice. Because this burden of justification is difficult to meet (especially for liberal societies which are constrained by their own ideals of tolerance), Rawlss list of genuine rights is short, including only limited rights to life, liberty, personal property, and formal equality. Many have found this too account too minimal, though there is a serious debate to

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have whether this is the case.40 Whatever we say about this larger debate, there is reason within political constructivism to consider a more inclusive account. A constructivist theory of the general sort Rawls proposes is chiefly appealing because it promises to illuminate the dominant moral vocabulary of our time. It hold this promise in part because it lacks the tendency of natural rights theories to stack the deck against widely recognized human rights that are not clearly natural in any pre-political or preinstitutional sense.41 But because Rawlss account asks us to regard all but a short list of rights as not really human rights, it cannot be said to illuminate how human rights discourse could legitimately function in more or less the way it does now function on the global scene. The account instead suggests that the human rights movement has dramatically overstepped its proper basis. Political constructivism can instead take a more progressive form, as follows. We agree that the issue is not what is owed to the human being as such, even in a state of nature, but rather what rights could properly have a regulative role in international law and practice (in accord with Structuralism) as legitimacy conditions for presumptively sovereign states. But contra Rawls, we characterize that role (as a claim of Moralized Interpretation) in a way which leaves room for a longer list of rights. Human rights are, we may say, bases for various forms of accountability-seeking conduct in world politics, including but not limited to the use of outright coercion or force. They specify legitimate bases for outside intervention in a societys affairs, and thus limitations on its sovereignty, where intervention is construed broadly as any measure that seeks to hold some presumptively sovereign authority accountable for its conduct. Aside from their peripheral role in legitimating outright military or economic coercion, the primary role of

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human rights is to persuade and encourage governments by a variety of non-coercive or weakly coercive forms of accountability-seeking intervention, including things like: naming and shaming, moral suasion and jawboning, nudging, cajoling in official speeches and diplomatic relations; public criticism of governments by NGOs or private parties; demands for justification, or requests for accountability, as within the reporting schemes the UN uses to implement its treaties; policy adjustment within international organizations, e.g., as regards lending or aid; the guidance and support of domestic aspiration, reform, rebellion, and nation building; the adjudication and prosecution of cases within human rights courts; and so on. 42 In any such conduct, tolerance or respect is at stake, much as on Rawlss account. If the measure in question cannot be legitimated according to a relevant list of human rightsbecause human rights violations of those sorts are in questionit manifests impermissible intolerance or disrespect for the presumptively sovereign authority. This is not even to say Rawlss short list of rights is wrong for the specific forms of force and coercion he addresses, nor that there is a second list corresponding to the remaining forms of accountability-seeking conduct. Rather, we may say that a different list of human rights needs to be justified, as reasonably acceptable, for each of the many different forms of potentially legitimate intervention we find in practice. So, for example, if a government is considering military invasion or an economic embargo, this might be illegitimate unless the target society is systematically violating the human rights on Rawlss shortor perhaps an even shorterlist. That is, an invasion wont be legitimate (at least given Rawlss list) if the target society merely violates rights of freedom of association, or if it is non-democratic, or if it subordinates women and

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minorities in religion and politics. Yet such injustices can still be counted as genuine human rights abuses relative to intervention of a different kind; they might, for example, license public condemnation in official speeches, as well, perhaps, as measures such as loan conditionality or denial of trade privileges or exclusion from UN agencies. Even such measures might be illegitimate if the target country merely fails to provide reasonable limitations on working hours and periodic holidays with pay. Yet that injustice, too, might license interventions of still different forms, such as requests for review and justification, direct criticism by NGOs, or implied criticism and exhortation by public officials. In this way, we can view the expansive lists of rights found in the Universal Declaration and other documents as an agglomeration or compilation of different lists which license some intervention or other (though each element would still need to be defended separately in terms of the specific kind or kinds of intervention it is supposed to govern). From a normative point of view, the different intervention-relative lists of human rights will generally tend to be longer the easier it is for a form of intervention to be justified. The use of force is hard to justify, and so the list of rights violations that legitimate it is correspondingly short. Implied public criticism is easier to justify, and so the list of rights violations that legitimate it can be comparatively long. 43 What should be emphasized for present purposes, however, is that any such substantial normative argument is to be framed by an independent characterization of the accountabilityseeking conduct at issue. We cannot say, in the first instance, what is or is not a genuine human right, or what is or is not intolerant or disrespectful, without first specifying (as a matter of Moralized Interpretation) the type of intervention being considered and the

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relevant interests at stake. One challenge to the approach is thus to plausibly identify the different classes of intervention which supposedly require different human rights lists. These different kinds need to be identified independently of their associated lists, in a way that helps determine why any particular item on a given list belongs there. But while demarcation of such categories needs to engage the best of political science and theory, the task is not wholly non-normative. Again, the task is one of constructive interpretation, which can equally be guided by our sense of the ways different forms of intervention differ in moral significance. Descriptive and normative aspects of different domains can be adjusted until reflective equilibrium is reached. The result is inevitably messy, but this is as it should be if political philosophy is to plausibly have decisive normative implications for world politics.

CONCLUSION I have now formulated political constructivism in general terms which have fruitful application to a broad range of areas of social life. This is not quite to say that it can exhaust the concerns of political philosophy. Whether it does that also depends on larger theoretical issues which I cannot take up here.44 I hope I have shown that political constructivism does at least bid fair to be what political philosophy is all about.

A Theory of Justice (Cambridge: Harvard Press, 1971), Political Liberalism (New York: Columbia

University Press, 1996) and The Law of Peoples (Cambridge: Harvard Press, 1999).
2 3

[Cite global justice literature.] While I will focus on non-basic structures in the global context, the domestic context raises

familiar issues of this sort. Feminists and others have emphasized that informal arrangements (such as sexist gender expectations) within a societys basic structure of institutions are often significantly unjust,

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though they could at best be an indirect concern of Rawlss domestic theory. Susan M. Okin, Gender, Justice, and the Family (New York: Basic Books, 1989), and more recently, G. A. Cohen, Where the Action is: On the Site of Distributive Justice, Philosophy and Pubic Affairs [reference] One general strategy is to stretch the scope of basic structures to include such controversial cases. My more general question is why political constructivism should apply only to basic structures in the first place.
4

Below I simply assume reflective equilibrium methodology. It is too general to have any

distinctive implications for the substance of political philosophy, beyond enabling a more substantive method.
5

I develop this general thesis for the case of practical reasons in my Constructivism about I discuss this further in my Constructing Protagorean Objectivity (unpublished ms. available at

Practical Reasons, Philosophy and Phenomenological Research 74 no 2 (2007).

6

http://www.faculty.uci.edu/profile.cfm?faculty_id=4884)
7 8 9 10

T. M. Scanlon, What We Owe to Each Other (Cambridge: Harvard Press, 1998) Collected Papers, ed. Samuel Freeman (Cambridge: Harvard Press, 1999), Ch. 16 See Political Liberalism (hereafter PL) This is also implicit in Rawlss account of the considered judgment of a competent person, in

Rawls early paper Outline of a Decision Procedure for Ethics, Collected Papers, Ch. 1. In PL, Rawls rejects rational intuitionism but also distances himself from Kantian constructivism. Still, he nowhere rejects the idea of truth as such. He favors talk of what is reasonable but there are of course truths about what is reasonable rather than not.
11

If good practical judgment is largely a matter of expressing the best understanding of the human

reasoning practice, then any such understanding is in principle accountable to general claims about what that practice is like. But should differences in reasoning practice from age to age, and culture to culture, lead us to skepticism whether practical reason has any internal norms and informative content? Could any set of principles or conceptions express human reasoning practice once and for all, or at best amount to empty formalism? Might the implicit content of reason emerge gradually over time, being ever more manifest and explicit in human thinking as history wears on, and only fully manifest at historys end?
12 13

See especially The Independence of Moral Theory, Collected Papers, Ch. 15. I believe that, perhaps under Drebens influence, Rawls accepts but never explicitly develops this

Wittgensteinian thought. For its development, see Barry Stroud, Meaning, Understanding, and Practice (Oxford Press, 2000).
14

In my Constructivism about Practical Reasons, I argue that no such specified method is essential

for constructivism to qualify as a properly meta-ethical proposal. It may, however, be necessary for political philosophy insofar as its aim is to substantially justify principles and clarify and defend the substantive reasoning for them.
15

Scanlon, What We Owe to Each Other

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16

The assumed background can even include standing moral principles, though they inform and do He does explain his focus on the basic structure of society in KCMT and TJ, but this reflects a

not determine reasoning for principles in the case in question. See Scanlon, p. .
17

more general focus on practices, which is explicit but not fully developed in earlier papers such as Justice as Fairness.
18 19

COHEN/MURPHY See Ronald Dworkin, Law's Empire (Cambridge: Belknap Press, 1986), pp, and, for the

application to Rawls, my paper Constructing Justice for Existing Practice: Rawls and the Status Quo, Philosophy and Public Affairs, 33 (2005)
20 21

See my Constructing Justice for Existing Practice. Examples include Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964),

Ernest Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995), Michael Walzer, Spheres of Justice (New York: Basic Books, 1983), Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustannus: Finnish Lawyers' Publishing Company, 1989), and Alexander Wendt, "Anarchy Is What States Make of It: The Social Construction of Power Politics," International Organization 46, no. 2 (1992).
22 23

See, e.g., Cohen, Rescuing Justice and Equality AJ Juliuss A Lonlier Contractualism (unpublished ms.) has this general form. The suggested

separability is also essential for Rawlss reformulation of constructivism as a political doctrine in the special sense discussed in PL. A Rawlsian version of the present objection would be that only such a reformulation represents political constructivism, properly speaking.
24

This is not to say that justice cannot implicate individual conduct or interpersonal morality. It is

rather to say that we are to start with established structures and work out any requirements for individuals in the light of structural requirements, rather than the other way around. I develop the argument in the text further in my Power in Social Organization as the Subject of Justice, Pacific Philosophical Quarterly 86 (2005).
25

The accomplishment is essentially public because individuals do not agree with themselves in

the same sense. Agreement in a single persons judgments, at a time or cross-temporally, results from basic rational coherence of a sort which does not apply across persons. Self-governing individuals have basic rational capacities which (barring irrationality and other extenuating conditions) enable them to effectively regulate their own planning, intentions, and conduct according to their own understanding, reasoning, and practical judgment, without necessarily establishing coordinative agreements in understanding, reasoning, and judgment with others. Such rational coherence does not apply interpersonally. There is, for example, no contradiction in believing both P and not-P if each proposition is believed by a different person; this is not contradiction but simply disagreement.
26

Rawls sometimes puts this idea in terms of stability, the idea that public recognition of a

conception of justice tends to induce compliance with the system that implements it (TJ 177). I am

36

developing the sketchy and general remarks in the text in a paper (now in production) on Hobbes and moral assurance problems (i.e., coordination problems arising because different morally motivated agents exercise their private moral judgment in different ways, because of differences in moral reasoning or in moralized interpretation of factual conditions).
27

As Rawls puts the thought (TJ 56): in a well-ordered society, one effectively regulated by a

shared conception of justice, there is also a public understanding of what is just and unjust.
28

By contrast, consequentialist egalitarianism often presents equality as simply one worthy ideal

among many, in which case it can be readily compromised (e.g. for the sake of efficiency) in actual social choice. See Cohen, Rescuing Justice and Equality.
29 30

Constructing Justice for Existing Practice. Rawlss decent hierarchical societies, in LOP, might be read in these terms: their religious and

authoritarian culture doesnt support key presuppositions of Rawlss theory.

31

Rawls is clear in LOP that any such claim of deep presupposition could not justify force against

decent non-liberal societies. The thought may be that the needed deep interpretive arguments would be too controversial to take as a legitimate basis for coercive intervention. The deep constructive critique might be correct, and in theory available to non-liberal societies, yet not a reasonable basis for agreement in international law and practice.
32

This is crucial if Rawls is to present (in PL) constructivism as a political doctrine in his special

sense which applies to the basic structure of domestic and international society. Whether justice must be political in that special sense elsewhere is a further, open question. It may, for instance, be needed where outright coercion is being used, making a political political constructivism appropriate.
33

See my Distributive Justice without Sovereign Rule: the Case of Trade, Social Theory and

Practice, 31 no 4 (2005) and my A Theory of Fairness in Trade, unpublished ms., available at http://www.faculty.uci.edu/profile.cfm?faculty_id=4884.
34

Douglas A. Irwin, Against the Tide: An Intellectual History of Free Trade (Princeton: Princeton

University Press, 1996), p. 216.

35

As David Ricardo and others explained, even if one country has what Adam Smith called an

absolute advantage in everything, while another country has an absolute advantage in nothing, trade to comparative advantage is still to the benefit of both countries. Each country profits by producing what it produces best relative to its productive options (rather than relative to other countries). And each country benefits when the other does this, allowing still further refinement of the division of labor.
36

I argue for this in my Global Economic Fairness: Internal Principles (forthcoming in a volume I develop this thought in my A Theory of Fairness in Trade. In A Theory of Fairness in Trade, I defend three principles. The first principle concerns the

by Cambridge Press Law). I plan to develop the theme in a book project on fairness in the global economy.
37 38

harms of trade, such as unemployment, wage suppression, and income volatility that diminishes lifetime savings. According to Collective Due Care: trading nations are to protect people against the harms of trade

37

(either by temporary trade barriers or safeguards, etc., or, under free trade, by direct compensation or social insurance schemes). Specifically, no persons life prospects are to be worse than they would have been had his or her society of origin been a closed society. The second and third principles concern the gains of trade, as specified by classical trade theory. These chiefly include the national income gains due to greater allocative efficiency in the division of labor, due to economies of scale, and due to the spread of technology and ideas. According to Domestic Relative Gains: gains to a given trading society are to be distributed equally among its affected members, unless inequality of gain is reasonably acceptable to them all (e.g. according to domestic distributional principles). And according to International Relative Gains: gains to trading societies, as adjusted according to the relevant endowments of each (e.g. its population size and level of development), are to be distributed equally, unless unequal gains flow (e.g. via special trade privileges) to poor countries.
39

Here I set aside the deeper question (which Rawls largely ignores) of why we should take

international law and practice for granted. One answer derives from the idea that principles must be principles of collective regulation, and thus part of what Rawls calls a realistic utopia. Such principles must take an international form, because we do not yet have a known and widely-understood workable alternative. Even suggestion of global cosmopolitan federation is at this point is largely a speculative possibility, instead of a clearly feasible, widely understood, and otherwise acceptable organizational option. I sketch a version of this argument in my Equality in a Realistic Utopia, Social Theory and Practice 32 no 4 (2006).
40

In defense of minimalism, see M. Ignatief, Human Rights: as Politics and as Idolatry, J. Cohen,

Is there a Human Right to Democracy? [references]

41

Consider, e.g., Universal Declaration rights to a decent standard of living, including housing,

medical care, and social services, (UD Art. 25), or to reasonable limitations on working hours and periodic holidays with pay (UD Art. 24)
42

James Nickel, Rawlss Theory of Human Rights in Light of Contemporary Human Rights Law

and Practice, [reference] and Making Sense of Human Rights (Oxford: Blackwell Press, 2007), p. 101.
43

We may add that any candidate rights, for any such list of human rights, must be an element of

public reason, in the sense that it is not just a truth about justice but also available to all reasonable parties affected, given certain specified informational and other circumstances. This is not essential for a political constructivist accountunless we assume Rawlss special sense of political which implies neutrality on comprehensive doctrines and thus a restriction to public reason.
44

G. A. Cohen, Rescuing Justice and Equality (Oxford Press, 2008), denies that political

constructivism yields fundamental principles of justice, even if it did yield principles for the regulation of all sorts of social life. Cohen argues that any such regulative principles cannot be fundamental because they are not fact-insensitive, in the sense of being valid regardless of the actual world facts. I argue in an unpublished manuscript, Deflating Fact-Insensitivity (available at http://www.faculty.uci.edu/profile.cfm?faculty_id=4884) that Cohens argument fails to rule out the

38

possibility of fact-insensitive principles which are still justified for particular sets of factual assumptions. A principle P justified for some facts F presupposes the fact-insensitive conditionalization, If F, then P. Such conditionalized principles are true whether or not facts F actually obtain (especially if they are regarded as necessary truths, as they can be). In my The Significance of Distribution http://www.faculty.uci.edu/profile.cfm?faculty_id=4884), which takes up related methodological concerns, I argue that political philosophy must have a basic concern with relations, rather than with distributional outcomes, as such, in a way which is amenable to the relational political constructivism I have described here.

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