Thomas M. Besch

Is there an approach to human rights that justifies rights-allocating moral-political principles as principles that are equally acceptable by everyone to whom they apply, while grounding them in categorical, reasonably non-rejectable foundations? The paper examines Rainer Forst’s constructivist attempt to provide such an approach. I argue that his view, far from providing an alternative to “ethical” approaches, depends for its own reasonableness on a reasonably contestable conception of the good, namely, the good of constitutive discursive standing. This suggests a way in which constructivism about human rights might be able to coherently and plausibly negotiate the tension between the scope, the depth and the strength of discursive inclusion: the justification of rights-allocating moral-political principles needs to be premised on an “ethical”, perfectionist defense of the good of constitutive discursive standing.

(In German.) The book addresses Rawls's post-1985 political liberalism. His justification of political liberalism -- as reflected in his arguments from overlapping consensus -- faces the problem that liberal content can be justified as reciprocally acceptable only if the addressees of such a justification already endorse points of view that suitably support liberal ideas. Rawls responds to this legitimacy-theoretical problem by restricting public justification's scope to include reasonable people only, while implicitly defining reasonableness as a substantive liberal virtue. But this virtue-ethical grounding of political liberalism is itself unreasonable. The phenomenon of disharmony of practical reason gives the reasonable reasons to take it that political legitimacy does not obtain if and where moral-political principles are acceptable from their point of view only.

The dissertation defends that the often-assumed link between constructivism and universalism builds on non-constructivist, perfectionist grounds. To this end, I argue that an exemplary form of universalist constructivism – i.e., O’Neill’s Kantian constructivism – can defend its universalist commitments against an influential particularist form of constructivism – i.e., political liberalism as advanced by Rawls, Macedo, and Larmore – only if it invokes a perfectionist view of the good. (En route, I show why political liberalism is a form of particularism and reconstruct the role of its conception of public justification, its implied contextualism about justified belief, its conceptions of toleration, neutrality, good reasons, and legitimacy, and, not least, its justification-constitutive conception of reasonableness.) Contrary to what is often assumed, then, at the level of a vindication of the very project of a universalist constructivism, universalist constructivists should construe perfectionists not as their opponents, but as partial, though uneasy, allies.

The paper advances a non-orthodox reading of political liberalism’s view of political legitimacy, the view of public political justification that comes with it, and the idea of the reasonable at the heart of these views. Political liberalism entails that full discursive standing should be accorded only to people who are reasonable in a substantive sense. As the paper argues, this renders political liberalism dogmatic and exclusivist at the level of arguments for or against normative theories of justice. Against that background, the paper considers aspects of a more plausible, deeper and more inclusive idea of public political justification that builds on a thinner, potentially cosmopolitan idea of the reasonable. The paper considers what content such an idea may have, and identifies a method of inclusive abstraction through which it may be enriched in content to render it fruitful for the purposes of a justification of principles of political justice. But the move toward more depth and inclusiveness faces constructivism with two challenges. First, inclusivism about the scope of political justification might not be able to avoid dogmatism unless it invokes perfectionist considerations. And second, the authority and appeal of a fruitfully rich idea of the reasonable depends on whether the addressees of political justification already value wide acceptability.

To fully respond to the demands of multiculturalism, a view of toleration would need to duly respect diversity both at the level of the application of principles of toleration and at the level of the justificatory foundations that a view of toleration may appeal to. The paper examines Rainer Forst’s post-Rawlsian, ‘reason-based’ attempt to provide a view of toleration that succeeds at these two levels and so allows us to tolerate tolerantly. His account turns on the view that a constructivist requirement of generality and reciprocity provides a suitable criterion of toleration since a commitment to this requirement is part of what defines people as reasonable. But it is neither plausible nor coherent to build such a requirement into an idea of reasonableness from which an account of toleration starts. Thus, constructivism cannot provide a tolerant criterion of toleration, if such criterion, in order to overcome the ‘paradox’ of intolerant toleration, must escape reasonable disagreement.

David Schmidtz's reconstruction of morality advances Hart-type recognition rules for a “personal” and an “interpersonal” strand of morality. I argue that his view does not succeed for reasons owed both to the way in which Schmidtz construes of the task of reconstructing morality and the content of the moral recognition rules that he proposes. For Schmidtz, this task must be approached from a Hart-type “internal” perspective, but this leaves his reconstruction with an unresolved problem of parochiality. He reconstructs morality as a pursuit of the aim of the flourishing of individuals as reflectively rational agents. However, while it is plausible to see reflective rationality as a good, it does not seem to be a morally fundamental good. Ways to instantiate or pursue it depend for their moral value on other, more fundamental moral values that are beyond the normative space mapped by Schmidtz's moral recognition rules.

Conceptions of acceptability-based moral or political justification take it that authoritative acceptability constitutes, or contributes to, validity, or justification. There is no agreement as to what bar for authoritativeness such justification may employ. The paper engages the issue in relation to (i) the level of idealization that a bar for authoritativeness, ψ, imparts to a standard of acceptability-based justification, S, and (ii) the degree of discursive purchase of the discursive standing that S accords to people when it builds ψ. I argue that (i) and (ii) are interdependent: high idealization values entail low discursive purchase, while high degrees of purchase require low idealization values. I then distinguish between alethic conceptions of justification that prioritize ends that commit to high idealization values, and recognitive conceptions that favour high discursive purchase. On this basis, I argue for a moderately recognitivist constraint on idealization. To render the recognitive discursive minimum available to relevant people at the site of justification, S should set ψ low enough so that it is a genuine option for actual people to reject relevant views in ways that S recognizes as authoritative.

The paper challenges the view that public justification sits well with emancipatory and egalitarian intuitions. I distinguish between the depth, scope and the purchase of the discursive standing that such justification allocates, and situate within this matrix Rawls’s view of public justification. A standard objection to this view is that public justification should be more inclusive in scope. This is both plausible and problematic in emancipatory and egalitarian terms. If inclusive public justification allocates discursive standing that is rich in purchase, as seems desirable in emancipatory terms, it may be unable to allocate equal standing to all relevant people. And if it is to allocate equal standing, then the equality of that standing should be construed in terms that allow for unequal discursive purchase.

Rainer Forst’s constructivism argues that a right to justification provides a reasonably non-rejectable foundation of justice. With an exemplary focus on his attempt to ground human rights, I argue that this right cannot provide such a foundation. To accord to others such a right is to include them in the scope of discursive respect. But it is reasonably contested whether we should accord to others equal discursive respect. It follows that Forst’s constructivism cannot ground human rights, or justice, categorically. At best, it can ground them hypothetically. This opens the door wide for ethical foundations of human rights.

(Please note: the main ideas of this paper are restated in revised/developed form in: "On actualist and fundamental public justification in political liberalism" and "Patterns of justification: on political liberalism and the primacy of public justification". Both papers are available from philpapers.) The paper suggests the deep view of Rawls-type public justification as promising, non-ideal theory variant of an internal conception of political liberalism. To this end, I demonstrate how the deep view integrates a range of ideas, views and commitments at the core of political liberalism’s justification structure, including pro tanto justification, full justification, political values and their priority, justificatory neutrality, the role of reasonable comprehensive views, the nature public reasons, the wide view of public political culture, the role of overlapping consensus and political legitimacy, and not least, the status of reflective equilibrium and the Original Position. I then contrast the deep view with Quong’s ideal theory variant if the internal conception, and argue that we should prefer the deep view. Thus, the prospects of political liberalism depend not so much on whether we find ways to make ideal theory relevant for non-ideal purposes. Rather, it depends on whether political liberalism can devise a credible response to the problem of public dogma.

This paper explores the idea of robust discursive equality on which respect-based conceptions of justificatory reciprocity often draw. I distinguish between formal and substantive discursive equality and argue that if justificatory reciprocity requires that people be accorded formally equal discursive standing, robust discursive equality should not be construed as requiring standing that is equal substantively, or in terms of its discursive purchase. Still, robust discursive equality is purchase sensitive: it does not obtain when discursive standing is impermissibly unequal in purchase. I then showcase different candidate conceptions of purchase justice, and draw conclusions about the substantive commitments of justificatory reciprocity.

Moral and political forms of constructivism accord to people strong, “constitutive” forms of discursive standing and so build on, or express, a commitment to discursive respect. The paper explores dimensions of discursive respect, i.e., depth, scope, and purchase; it addresses tenuous interdependencies between them; on this basis, it identifies limitations of the idea of discursive respect and of constructivism. The task of locating discursive respect in the normative space defined by its three dimensions is partly, and importantly, an ethical task that is beyond constructivism. Interdependencies between these dimensions call into question the possibility of a plausible and coherent form of discursive respect that is deep, inclusive in scope, and rich in purchase. This does not mean that we should reject discursive respect, or constructivism, for that matter. But it suggests that the task of reconciling the dimensions of discursive respect may not allow for widely shareable results. This task needs to be addressed on non-constructivist grounds. Accordingly, we have reasons to concede that constitutive forms of discursive standing are less fundamental in the order of justification than weaker, “derivative” forms, and this is so especially if we take constitutive standing to mark an important good.

Public justification in political liberalism is often conceptualized in light of Rawls’s view of its role in a hypothetical well-ordered society as an ideal or idealizing form of justification that applies a putatively reasonable conception of political justice to political matters. But Rawls implicates a different idea of public justification in his doctrine of general reflective equilibrium. The paper engages this second, more fundamental idea. Public justification in this second sense is actualist and fundamental. It is actualist in that it fully enfranchises actual reasonable citizens. It is fundamental in that political liberalism qualifies conceptions of political justice as reasonable to begin with only if they can be accepted coherently by actual reasonable citizens. Together, these features invite the long-standing concern that actualist political liberalism is objectionably exclusionary. I argue that the exclusion objection, while plausible, is more problematic in own right than it seems if actualist and fundamental public justification hypotheticalizes and discursive respect is compatible with substantive discursive inequality. This leaves proponents and critics of political liberalism with deeper questions about the nature of permissible discursive inequality in public justification.

According to Rainer Forst, (i) moral and political claims must meet a requirement of reciprocal and general acceptability (RGA) while (ii) we are under a duty in engaged discursive practice to justify such claims to others, or be able to do so, on grounds that meet RGA. The paper critically engages this view. I argue that Forst builds a key component of RGA, i.e., reciprocity of reasons, on an idea of the reasonable that undermines both (i) and (ii): if RGA builds on this idea, RGA is viciously regressive and a duty of justification to meet RGA fails to be agent transparent. This negative result opens the door for alternative conceptions of reciprocity and generality. I then suggest that a more promising conception of reciprocity and generality needs to build on an idea of the reasonable that helps to reconcile the emancipatory or protective aspirations of reciprocal and general justification with its egalitarian commitments. But this requires to downgrade RGA in the order of justification and to determine on prior, substantive grounds what level of discursive influence in reciprocal and general justification relevant agents ought to have.

According to the “internal” conception (Quong), political liberalism aims to be publicly justifiable only to people who are reasonable in a special sense specified and advocated by political liberalism itself. One advantage of the internal conception allegedly is that it enables liberalism to avoid perfectionism. The paper takes issue with this view. It argues that once the internal conception is duly pitched at its fundamental, metatheoretical level and placed in its proper discursive context, it emerges that it comes at the cost of public dogma. The paper examines this problem and argues that a plausible response to this problem is to go beyond the internal conception and adopt a more inclusive, dynamic conception. But this calls for a form of perfectionism. Thus, the internal conception of political liberalism, far from showing how liberalism can be had without perfectionism, effectively calls for perfectionism as a remedy for its problems.

The discussion develops the view that public justification in Rawls’s political liberalism, in one of its roles, is actualist in fully enfranchising actual reasonable citizens and fundamental in political liberalism’s order of justification. I anchor this reading in the political role Rawls accords to general reflective equilibrium, and examine in its light the relationship between public justification, pro tanto justification, political values, full justification, the wide view of public political culture and salient public reason intuitions. This leaves us with the question of how a more plausible, post-Rawlsian political liberalism should understand the commitment to discursive respect and robust discursive equality that is reflected in its view of actualist and fundamental public justification.

Toleration is one of many responses toward diversity and difference. With the growing diversity, the theme of toleration has often taken center stage in discussions of multiculturalism and social pluralism. Nonetheless, it has not received much attention in the social work profession. Social workers often encounter situations in which they face a choice between tolerating and not tolerating. We argue that toleration is a legitimate and relevant topic in social work discourse. To make this point, first, this paper discusses different conceptions of toleration. Then, it demonstrates its relevance to social work and explores a potential benefit of including the idea of toleration in social work discourse. Social work code of ethics implicitly supports toleration, or at least respect-toleration and esteem-toleration. Incorporating toleration in social work discourse may help social workers to better cope with or reduce ethical stress and disjuncture.

Can there be a "reflexive" or presuppositional, reasonably non-rejectable grounding of a Forst-type right to justification, or of a meaningful form of constitutive discursive standing? The paper argues that this is not so, and this for reasons that reflect more general limitations of presuppositional arguments for relevantly contested conclusions. To this end, the paper critically engages Forst's "reflexive" argument for human rights. It also considers O'Neill's presuppositional attempt to defend a form of cosmopolitanism, as well as the attempt to anchor constructivist conclusions in the meaning of the word "reasonable".

This chapter explores Rainer Forst’s justification-centric view of nondomination toleration. This view places an idea of equal respect and a corresponding requirement of reciprocal and general justification at the core of non-domination toleration. After reconstructing this view, this chapter addresses two issues. First, even if this idea of equal respect requires the limits of non-domination toleration to be drawn in a manner that is equally justifiable to all affected people, equal justifiability should not be understood in terms of Forst’s requirement of reciprocal and general acceptability. Second, for the equal justifiability of relevant constraints to ensure non-domination outcomes, discursive equality must be understood in substantive, purchase-sensitive terms. This means that a justification-centric view of non-domination toleration stands or falls with the participation value of what it regards as the standards of justification. This places reasonably contested matters of value at the heart of such views.

This paper engages Rainer Forst’s doctrine of noumenal power. At the centre of this doctrine is its signature claim that power is noumenal in nature. I reconstruct Forst’s definition of power and distinguish three conceptions of noumenal power in his writings. I argue that, on each conception, we should reject that claim. It emerges that the professed noumenality of power is either a trivial feature of power, or else a feature only of some forms of power. Consequently, Forst’s definition of power cannot be adequate and the claim that power is noumenal in nature is either trivial or false.

Rainer Forst and others claim that normative moral and political claims depend for their justification on meeting a requirement of reciprocal and general acceptability (RGA). I focus on a core component of RGA, namely, the idea of reciprocity of reasons, distinguish between two readings of RGA, and argue that if reciprocity of reasons is understood in Forst’s terms, then RGA, even on the most promising reading, may not serve as a requirement of moral or political justification at all. The discussion concludes with constructive observations on a path forward for theorists who nevertheless are inclined to hold on to RGA.

Kantian constructivists accord a constitutive, justificatory role to the issue of scope: they typically claim that first-order practical thought depends for its authority on being suitably acceptable within the right scope, or by all relevant others, and some Kantian constructivists, notably Onora O'Neill, hold that our views of the nature and criteria of practical reasoning also depend for their authority on being suitably acceptable within the right scope. The paper considers whether O'Neill-type Kantian constructivism can coherently accord this key role to the issue of scope while adhering to the universalist, ‘cosmopolitan’ commitments at its core. The paper argues that this is not so. On the one hand, it shows that O'Neill's attempt to ‘fix’ the scope of practical reasoning supposes, rather than establishes, a view of ethical standing and the scope of practical reasoning. On the other hand, the paper argues that Kantian constructivism should endorse a non-constructivist, perfectionist view of the good to determine that scope. The paper thereby supports the perfectionist conjecture that Kantian constructivism, in order to defend its universalist commitments, should take refuge in non-constructivist, perfectionist considerations, and that Kantian constructivism should therefore construe perfectionism as a partial, though uneasy, ally

The paper addresses O'Neill's view that her version of Kant's Categorical Imperative, namely, the requirement of followability (RF), marks the supreme principle of reason; it takes issue with her claim that RF commits us to Kantian constructivism in practical philosophy. The paper distinguishes between two readings of RF: on a weak reading, RF ranges over all (practical) reasoning but does not commit to constructivism, and on a strong version RF commits to constructivism but fails to meet its own test, and so is self-defeating. The paper argues that RF, if understood strongly, depends for its reasonableness on reasons that cannot coherently be required to meet RF, so that RF cannot be the supreme principle of reason. The paper considers several responses to this problem in order to suggest that RF depends for its reasonableness on perfectionist considerations.

In public reason liberalism, equal respect requires that conceptions of justice be publicly justifiable to relevant people in a manner that allocates to each an equal say. But all liberal public justification also excludes: e.g., it accords no say, or a lesser say, to people it deems unreasonable. Can liberal public justification be aligned with the equal respect that allegedly grounds it, if the latter calls for discursive equality? The chapter explores this challenge with a focus on Rawls-type political liberalism. I suggest that political liberalism’s commitment to equal respect can cohere with the standing of the unreasonable in public justification if that standing is not impermissibly unequal in discursive purchase. I then consider one candidate view of the permissibility of purchase inequality. On this broadly sufficientarian view, purchase inequality is permissible provided relevant people have standing of enough purchase to be able to avoid relevant bads. A plausible variant of this view suggests that political liberalism’s commitment to equal respect does not cohere with the discursive standing of the unreasonable. It emerges that where liberal public justification accords actual people discursive respect but relevantly idealizes at least around its fringes, the permissibility of purchase inequality must be a central concern.

In Rawls’s political liberalism, legitimate exercises of political power must be publicly justifiable to reasonable citizens on grounds each can coherently accept, where citizens count as “reasonable” only if they can accept certain values of public culture. Other citizens have no say in public justification, or no equal say. For Rawls, then, legitimate political power must accord with a subset of cultural values, and can be legitimate even if it is not (equally) justifiable to people who cannot accept them. Does this mean that Rawls permits that such people be dominated? What kind of domination, if any, would this involve, and would it involve “cultural” domination? This chapter takes its lead from these questions. It offers a reading of the role of public justification in political liberalism that foregrounds differences in the discursive standing of reasonable and unreasonable people, and interpret these differences in domination-theoretic terms. I suggest that there is reason to believe that Rawls’s view would subject the unreasonable–a mixed group that also includes respectable people–to forms of discursive and political domination, and this in a manner that attracts the worry that cultural domination is involved.

Most theorists of public reason, including both its proponents and critics, now accept that it is inconclusive, meaning that its correct application can result in a plurality of reasonable solutions to the issues it addresses. While some early critics argued that the inconclusiveness of public reason presented a serious problem for political legitimacy – a charge often associated with ‘the completeness objection’ – defenders of public reason have generally dismissed this objection on the grounds that political legitimacy does not hinge on the selection of a singularly reasonable or most reasonable resolution to political disputes. We argue, however, that once the notion of political legitimacy accepted by prominent public reason theorists has been successfully disambiguated, the inconclusiveness of public reason is far more problematic than public reason theorists have acknowledged.