Justice and Judgment: The Rise and the Prospect of the Judgment Model in Contemporary Political Philosophy
Publication Year: 1999
Justice and Judgement is a comprehensive introduction to theories of judgement in contemporary political and moral philosophy. The book offers a critical examination of judgement in the recent works of Rawls, Habermas, Ackerman, Michelman and Dworkin, including an historical overview of the judgement model in contemporary political philosophy; the function of the constitution; and deliberative democracy. The book concludes with a discussion of universalism and contemporary liberalism and the judgement view of justice.
- Front Matter
- Back Matter
- Subject Index
Part I: The Rise of the Judgment Model in Contemporary Political Philosophy
- Chapter 1: A Reasonable View of the Reasonable
- Rawls's Conception of Justice as Fairness in its Development
- The Overlapping Consensus and the Tension between Two Models of Normative Validity
- Chapter 2: Democracy, Justice and Discourse
- Morality and Discourse
- Habermas's Discourse Theory of Law
- Politics, Discourse and Deliberative Democracy
- Concluding Remarks
- Chapter 3: An (Almost) Aesthetic Model of Normative Validity
- Principles and Rules
- Interpretation and Integrity: Making the Most of the Constitution
- Integrity as Making the Most of One's Life
- Chapter 4: From Fictive Dialogue to Situated Judgment
- The Model of Constrained Dialogue
- Towards a Model of Normative Validity as Situated Judgment
- The Space of Judgment
- Chapter 5: The Judgment View of Higher Lawmaking
- Michelman's Conception of Deliberative Democracy
- The Inner Logic of the Judgment View of Higher Lawmaking
Part II: Completing the Turn: The Prospect for the Judgment Model
- Chapter 6: Traces of Modern Universalism in Contemporary Liberalism
- The Cumulativity of the Political
- The Ambiguity of Habermas's Notion of Generalizability
- The Tension within Dworkin's View of Normative Validity
- Beyond Constitutional Majoritarianism
- Michelman's Problem of Infinite Regress: A Residue of Externalism?
- Chapter 7: The Judgment View of Justice
- Rethinking the Problem of Justice: Two Formulations
- The Context of Justice: The Received Liberal Conception
- An Alternative View of the Context of Justice
- The Problem of the Source of Cogency
- The Ordering Function
- Moral and Political, Elementary and Fully Fledged Conceptions of Justice
- The Aesthetic Analogy Taken Seriously
- Chapter 8: Impartiality without Principles and the Ideal of Equal Respect
- Justice and Equal Respect
- The Right and the Good Revisited
- Radically Reflexive Self-Grounding
Philosophy & Social Criticism[Page ii]
Series Editor: David M. Rasmussen, Boston College
This series presents an interdisciplinary range of theory and critique emphasizing the interrelation of continental and Anglo-American scholarship as it affects contemporary discourses. Books in the series are aimed at an international audience, focusing on contemporary debates in philosophy and ethics, politics and social theory, feminism, law, critical theory, postmodernism and hermeneutics.
- Other books in this series
- David Owen, Nietzsche, Politics and Modernity
- Richard Kearney (ed.), Paul Ricoeur: The Hermeneutics of Action
- Mathieu Deflem (ed.), Habermas, Modernity and Law
- Nick Crossley, Intersubjectivity: The Fabric of Social Becoming
© Alessandro Ferrara 1999
First published 1999
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, transmitted or utilized in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without permission in writing from the Publishers.
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[Page v]For my daughter Giuditta[Page vi]
This book tells a story and contains a suggestion on how to carry it forward, not to a conclusion – for this particular story can have no conclusion – but to a new and different stage. The story is about political philosophy, its encounter with the change of philosophical horizon that goes under the name of the linguistic turn, the response of some of its leading theorists to that transformation, and what may come next. Started as a questioning of the representational capacity of language and as a discussion of the shaping function of linguistic forms over our representations of the world, the linguistic turn immediately shook our deep-seated and long-standing Western faith in the possibility of grounding the transcontextual cogency of general principles of theoretical and practical validity. This change in philosophical sensibility soon produced its effects in epistemology, in the philosophy of science and in the self-understanding of anthropological and social inquiry. Political philosophy came to be invested by the fall of Archimedean points and of the approaches that built on their existence relatively later – in the late 1970s and early 1980s. Nonetheless, it soon made up for that delay by producing, in the works of some prominent theorists, the seeds of quite a novel way of understanding the universalistic dimension of justice and, more generally, the universalistic nature of normative validity.
Looking at the last two decades of literature in the political philosophy of liberal, republican-liberal and democratic orientation one can see signs of the decline of an understanding of normative validity based on principles and the slow rise of an alternative view, based on judgment, not just in the debate over general theories of justice but in a number of distinct, and yet somehow interconnected, areas: for example, in the debates on constitutionalism, on deliberative democracy, on the revival of the republican tradition, on rights, on citizenship, on the public sphere, on the right to privacy, on cultural rights and on multiculturalism.
My effort, over the last few years, has been to elaborate a framework that could help to clarify the exact nature of this change and to make sense of its potential significance. I went back to Kant and found in his contrasting of two models of validity, based respectively on determinant and on reflective judgment, the basis for that framework. Kant's model of a normativity that is universalistic but not dependent on general principles – the model of reflective judgment that forms the object of the Critique of Judgment – was then further elaborated in order to bring it in line with the postmetaphysical premises of our own philosophical horizon. This enlarged reformulation, [Page x]conducted in light of Rudolf Makkreel's reconstruction of what it means for reflective judgment to be oriented and on the basis of my own notion of reflective authenticity, enabled me then to characterize the current developments under way within political philosophy as a transition from an early modern model of generalizing universalism based on the power of principles, laws, norms and rules to transcend the particularity of contexts to a new model of exemplary universalism based on an oriented reflective judgment about the self-congruity or authenticity of an identity, be it individual or collective.
Considered from this vantage point, the internal development of the thought of theorists like John Rawls, Jürgen Habermas, Ronald Dworkin, Bruce Ackerman and Frank Michelman seems to point to a new configuration, not yet completed, but potentially capable of avoiding both the pitfalls of modern foundationalism and the postmodernist sirens that intimate the renunciation, along with the subsumptive model of ‘context transcending’, of all other notions of transcontextual validity as well. The judgment framework allowed me also to locate the junctures, within each of these theorists' work, where the older model of universalism survives within the new one and in tension with it. The reconstruction of these tensions between two incompatible models of normative validity often at work within the same framework gave impulse to the subsequent stage of my research, namely the attempt to plot a tentative course for the completion of the turn toward a reflective judgment view of justice and normative validity.
First, I tried to reconceptualize the ‘context of justice’ or the paradigmatic circumstances in which problems of justice are typically thought to arise by liberal thinkers. I tried to put to a better use the much invoked Davidsonian argument about the incoherence of total incommensurability, by linking it with an understanding of justice as an oriented reflective judgment concerning the optimal unfolding or flourishing of the identity, however minimal, originating in the area of overlap between the contending parties – an area of overlap that can be treated as a symbolic identity in its own right.
Furthermore, drawing on Charles Larmore's recent work on ‘equal respect’, but bending his argument to conclusions with which he need not necessarily agree, I developed the idea that reflective judgments on matters of justice differ from reflective judgments about the fulfilment or authenticity of identities in general, in that judgments on questions of justice are oriented not only by those intuitions concerning the flourishing or authenticity of individual and collective identities which I have tried to reconstruct in Reflective Authenticity: Rethinking the Project of Modernity (1998a), but also by an additional guideline – the ideal of ‘equal respect’ – which functions as an area of overlap between theories of justice. Another important moment in completing the turn toward a fully fledged judgment view of justice consists in uncoupling the distinction between the right and the good, which in a reformulated version remains at the centre also of the judgment view, from the assumption, generally taken for granted by all contemporary authors, that one of the two terms has necessarily to be given priority over the other. At the [Page xi]centre of the judgment view of justice, instead, is an understanding of the distinction between the right and the good as compatible with the complementarity of the two standpoints.
Finally, when it comes to presenting its own credentials for validity, the judgment view of justice undergoes a reflexive turn. One of the aspects of novelty that the judgment view, as a view of justice, receives from its being built on oriented reflective judgment is that it incorporates the same kind of radical self-referentiality that aesthetic objects, and primarily works of art, possess. At no point could the justification of a judgment view of justice appeal to anything beyond the intrinsic dynamic of judgment without forfeiting its own consistency. Consequently, the ‘aesthetic analogy’ is then pursued further and the judgment view is justified in a way not dissimilar from the one in which the more general authenticity view of validity, of which the judgment view of justice represents but one among several possible specifications, was defended in Reflective Authenticity, namely in terms of a situated appraisal of our identity as modern Westerners. In the course of this appraisal we come to the tentative and provisional conclusion that if we want to remain true to the project enshrined in that identity, ‘we can do no other’ – in Luther's sense – than embrace a judgment view of justice.
This whole line of reasoning may sound bizarre to ears used to the melody of contemporary liberalism, but to my mind it is just one among several possible ways of taking seriously Rawls's saying that the validity of a view of justice cannot but rest with ‘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’ (1980: 519). Also, this way of approaching justice attests a return to the deepest spirit of Kant's lesson – a lesson that in the twenty-first century will most likely project a different meaning from the one attributed to it in the course of the twentieth. While Kant himself would have been horrified by the linkage of justice and aesthetics, it is not unreasonable to claim that, under conditions quite different from those under which he lived his intellectual life, in the spirit with which we turn to aesthetics some seeds survive of the spirit of modesty and willingness to learn with which Kant looked at the accomplishments of modern physics. He sought in Newtonian physics that nexus of certainty and experience that premodern metaphysics was unable to generate and placed that nexus, reconstructed as a theory of the knowing subject, at the centre of his transcendental philosophy. After the linguistic turn, with the same modesty and willingness to learn, we seek in aesthetics that nexus of universality and radical pluralism that modern thought in all of its variants seems unable to generate.
Several relations, institutional and personal, have made this book possible. Among the institutions, I am grateful to the Italian CNR and the Commissione per gli Scambi Culturali fra l'Italia e gli Stati Uniti for having financed, in the autumn of 1989, a semester spent as a Research Associate at the University of California at Berkeley, during which I worked on a preliminary draft called ‘The Rationality of Judgment’; to the Department of [Page xii]Philosophy of Boston College, to the Center for European Studies of the School of Government at Harvard University, to the Department of Political Science of Columbia University in New York, to the Department of Philosophy of the Universidad Autónoma Metropolitana of Mexico and to the Department of Government of the University of Manchester for having invited me to lecture on papers which later evolved to become Chapters 1, 2, 3, 4 and 6 of this book. I wish to thank also the Ministry for the University and for Scientific Research of the Italian government for having financed, in 1994, a research project on ‘Models of Universalism Underlying Liberal Theories of Justice’ that allowed me to draft other materials later included in the same chapters of this book.
Concerning individuals, I am very grateful to the participants of the Prague annual Conference on Philosophy and Social Science where a number of times I have presented work in progress from this book. The intellectual climate of these encounters, characterized by unrestrained dialogue and genuine pluralism, renders them uniquely stimulating opportunities for developing one's thoughts. Within that context, as well as on the occasion of other presentations, invited talks, and private conversations, I have benefited from comments by Ronald Beiner, Seyla Benhabib, Michelangelo Bovero, Hubertus Buchstein, Marina Calloni, Jean L. Cohen, Maeve Cooke, Peter Dews, Enrique Dussel, Pieter Duvenage, Paolo Flores D'Arcais, Gunther Frankenberg, Klaus Günther, Jürgen Habermas, Michael Halberstam, Axel Honneth, Maria Pia Lara, Sebastiano Maffettone, Giacomo Marramao, Virginio Marzocchi, Maurizio Passerin d'Entrèves, Stefano Petrucciani, Elena Pulcini, Richard Rorty, Nadia Urbinati, Salvatore Veca and Joel Whitebook.
Several people have had the patience to read through extensive parts of the manuscript and have offered me precious feedback which in some cases has led to a rethinking of parts of the argument. While responsibility for the results is obviously my own, their thoughts, questions and critical objections have very much contributed to the making of this book. I am very much indebted to David Rasmussen for having first encouraged me to embark on this intellectual journey, for his advice on the structuring of the materials and, last but not least, for having had the patience, as a series editor, to wait for the long detours and waystations that have separated the signing from the fulfilling of the contract. Giampaolo Ferranti and Rainer Forst have offered me extended and very insightful comments on Chapters 1 and 2. Massimo Rosati has been a constant and very stimulating partner in great discussions throughout the production of this manuscript – most likely, 1 owe him more thoughts than I can acknowledge. Furthermore, I am very grateful to Bruce Ackerman for having made the manuscript of his Transformations available to me, for a long conversation on the subject of justice that took place in Mexico City and for his comments on various parts of my manuscript. Frank Michelman has read every single line in this book and has led me to rethink many of them: his own work on the judgment view of higher lawmaking, again generously made available to me before publication, has been a great source of inspiration for my own. That is true also of Charles Larmore, to [Page xiii]whom I owe with gratefulness many of my thoughts on ‘equal respect’ and on the right and the good: his copious and always perspicuous comments on the entire manuscript have accompanied me in the process of editing the final version and in more than one instance have occasioned substantial revisions – even, in one case, of structural import. Finally, I wish to thank Donatella Caponetti for her presence in my life: thoughts cannot flourish if emotions do not.Rome, February 1998[Page xiv]
1 See Durkheim (1967: 23–5).
2 See Rorty (1989: 5).
3 Converging but from a different perspective see also Dancy (1993: 55–8).
4 See Rawls (1987a). A similar conception is propounded in the chapter ‘The Idea of Public Reason’ in Rawls (1993: 212–54).
5 Kant (1986: 18).
6 See Kant (1986: 35–6).
7 See Simmel (1987).
8 I am indebted to Charles Larmore for having drawn my attention to the risk of overemphasizing the rigidity of determinant judgment and the openness of reflective judgment. A similar point was raised by Axel Honneth. Though they may not agree with my own response to their objection, their remarks were very helpful to me.
9 More on this will be said in Chapter 3.
10 See Wittgenstein (1953: sections 201–41).
11 Hannah Arendt has tried, unsuccessfully in my opinion, to reconstruct the exemplary form of universalism underlying reflective judgment in her Lectures on Kant's Political Philosophy (1982). See also Beiner (1982; 1983; 1997). However, by construing the relevance of examples to ‘exemplary’ validity in a way that parallels the relevance of schemata to cognition, Arendt fails to highlight the distinctive ‘orienting’ nature of general notions in reflective judgment. For a more detailed argument, see Ferrara (1998b).
12 On the convergence of the deontological and consequentialist moral-theoretical paradigms from the standpoint of generalizing universalism, see Williams (1985) and Larmore (1987: ix).
13 Here I follow the considerations put forward in Scanlon (1982: 111–12) and in Nagel (1991: 33–40). On the merits of Scanlon's solution see Barry (1995: 67–72).
14 On this distinction see Dworkin (1989a: 484–7). For a critical appraisal, see Williams (1989).
1 The notion of the basic structure, thus understood, is discussed also in Political Liberalism. See Rawls (1993: 258).
2 For a critique of Rawls's notion of the self, see Sandel (1982: 54–9, 62–5, 179–83). For Rawls's response, see Rawls (1985a: 238–9). On the constitutive relation of justice to the present distributive arrangements, as opposed to the legitimacy of the transactions that have led to the present distribution, see Nozick (1974: 183–231). On the difficulties of justifying the adoption of a maximin strategy in the original position, see Barber (1989: 297–301) and Williams (1981: 94–100; 1985: 77–80). On the moral-psychological presuppositions of the second principle of justice, see Nozick (1974: 239–46). On the cogency of the ‘thought experiment’ argument applied to real dilemmas, see Dworkin (1989b: 16–53). On the relation of Rawls's position to Kant, see Höffe (1984; 1987). See also Daniels (1989) and Reath, Herman and Korsgaard (1997).[Page 232]
3 This view is further elaborated in Rawls (1993: 72–3), where the deliberation in the original position is reconceived as a case of pure procedural justice.
4 For an interesting account of this stage in Rawls's thought, see also Pogge (1989).
5 Cf. Kukathas and Pettit (1990: 60–3).
6 See also Rawls (1974; 1975; 1979).
7 See Rorty (1988: 262–8). For a counter-interpretation, see Brink (1989).
8 See Rawls (1985a: 224).
9 See Rawls (1985a: 224; 1988: 252–3).
10 See Rawls (1993: 24–5, n. 27).
11 See Rawls (1993: 36).
12 For an issue to be removed from the political agenda means that it is no longer regarded as an appropriate subject for political decision by majority or other plurality voting. In other words, the relevant provisions of liberty of conscience or personal liberty are assumed to be ‘set once and for all’ (Rawls 1993: 151).
13 On the formation of the overlapping consensus see Rawls (1993: 164–8).
14 For a discussion of this moment with reference to the articles antecedent to Political Liberalism, see Kukathas and Pettit (1990: 124–5). On the Humean elements in Rawls's early conception of justice as fairness, see Barry (1978).
15 Rawls's new understanding of the grounds on which the validity of justice as fairness rest shows here more than a family resemblance with the notions of reasonable or unanimous ‘non-rejectability’ suggested respectively by Scanlon (1982) and Nagel (1991).
16 For an interesting alternative to Rawls's view of the politicalness as uncontroversiality, see Gaus's notion of the ‘robustness’ of a theory of justice (1996: 9–10).
17 The idea of goodness as rationality, the idea of permissible comprehensive conceptions of the good, the idea of political virtues, and the idea of the good of a well-ordered society. See Rawls (1993: 176ff).
18 See Rawls (1993: 28).
19 The standpoint constituted by the original position serves the function of bridging the gap between the principles of justice that we recognize as binding (the ‘principle of equal liberties’ and the ‘principle of difference’) and the ideals which underlie our own conception of a well-ordered society. The standpoint of the citizens of a well-ordered society includes the normative conception of the moral actor as endowed with a capacity for a sense of justice and a capacity to entertain a conception of the good, and contains as well the normative idea of society as a fair system of cooperation that spans over several generations.
20 See Rawls (1993: 28).
21 Among the different interpretations of wide reflective equilibrium, see Daniels (1979: 1980), Sosa (1991), DePaul (1986), D'Agostino (1988) and Raz (1982).
22 See Rawls (1993: 99–101).
23 On the nature of the burdens of judgment see below in this chapter.
24 See Rawls (1993: 39–40).
25 For a different view see Nozick (1974).
26 Rawls points out that Habermas does himself acknowledge the substantive dimension of his own discursive view of justice in Faktizität und Geltung (1996a: 536). The difference with Rawls is only in the more reduced extent to which substantive assumptions are allowed within the conception of justice.
27 See Rawls (1993: 250–1).
28 See also Raz (1990).
29 See Rawls (1993: 65–6; 1995: 147).
30 The burdens of judgment are discussed in Rawls (1993: 56–7).
31 See Habermas (1996a), Ackerman (1980) and Larmore (1987).[Page 233]
1 For accurate and detailed reconstructions of this central intuition, see Baynes (1989: 77–121) and Rehg (1994). See also Forst (1994: 289–306).
2 See Habermas (1990: 197).
3 See Habermas (1990: 108).
4 See Habermas (1990: 108).
5 I am grateful to Rainer Forst for having alerted me, in private correspondence, tothe need for such a justification, with the substance of which he may not necessarily agree.
6 This lecture was later included in Justification and Application, with the title ‘On the Pragmatic, the Ethical and the Moral Employments of Practical Reason’ (Habermas 1993b: 1–17).
7 See Habermas (1993b: 5).
8 Between the ethical sphere and the moral point of view proper lies the intermediate area of ‘concrete universalism’ – the universalism of the Golden Rule. The Golden Rule already represents a moral principle, in that it enjoins the actor to take the good for others into the same consideration as the good for herself, but still contains an egocentric residue in that the acceptability of the generalized maxim is still assessed with reference to what is acceptable to ‘me’ and not to what is acceptable to ‘everyone else’. See Habermas (1993b: 8).
9 See Habermas (1996a: 161).
10 For succinct and accurate reconstructions, see also Rasmussen (1994), Baynes (1995) and Rehg (1996). Very useful are also White (1995), Rasmussen (1996b).
11 See Habermas (1994a: 139).
12 See Rousseau (1967: 30–5, 55). For a commentary, see Ferrara (1993a: 55–60).
13 According to Larmore, Habermas fails to produce a convincing argument concerning why we should want that the lawgivers be coextensive with the lawtakers. Underneath the discourse principle, objects Larmore, lies an implicit principle, unacknowledged by Habermas – the principle of equal respect. Habermas's derivation of rights from the communicative conditions of the exercise of political autonomy works only because, in a circular way, he understands the exercise of political autonomy as presupposing (a) a recognition of this principle and (b) an acceptance of the limitations that it imposes on the autonomous communal will of the legal consociates. See Larmore (1993: 326–7).
14 See Habermas (1994a: 49).
15 ‘At the same time immigration, i.e. the expansion of the legal community through the inclusion of aliens who would like to acquire the rights of membership, requires a regulation in the equal interest of members and petitioners’ (Habermas 1996a: 125). On the same issue, see also Habermas (1993a).
16 These two aspects of the function of the constitutional state are explored by Habermas in the last two sections of Chapter 4 of Between Facts and Norms.
17 For a more balanced conception of the connection between the three powers in a deliberative democracy, see Ackerman (1991: 104–62).
18 The proposal would allow the President to nominate an extra justice whenever a current justice reached age 70 and chose not to retire, up to a new total number of justices of 16.
19 This is the gist of Habermas's criticism against Joshua Cohen's conception of deliberative democracy, as outlined in Cohen (1989; 1993). For an interesting commentary, see Bohman (1994: 915–16; also 1996). Of related interest are also Mansbridge (1980), Fishkin (1991) and some of the essays collected in Mouffe (1992).
20 See also Habermas (1989).
21 While the basic tenets of mainstream liberalism are somehow reflected in Habermas's reconstruction – though the central figures of liberal liberalism, discussed in this book, are ignored perhaps because their closeness to his own position would somehow undermine the ‘third-course’ argument that Habermas is trying to develop – the republican tradition is virtually caricaturized. The Arendtian, Pocockian and neo-Aristotelian strand of republicanism (best illustrated by Pocock 1975) is arbitrarily taken as representative of the whole of republicanism. Instead the existence of a Ciceronian, Machiavellian, Tocquevillian strand that by no means [Page 234]shares the premises called in question by Habermas is systematically ignored. For interesting reconstructions of this alternative strand of republicanism, see Skinner (1978a; 1978b; 1983; 1984; 1986; 1992), Skinner and Viroli (1990), Pettit (1997), Spitz (1994; 1995a; 1995b) and Viroli (1992). For a critique of the Habermasian interpretation of republicanism, see Viroli (1995). For one of the few examples of a kind of ‘communitarian republicanism’ that somewhat fits Habermas's description, see Sandel (1996).
22 This makes Habermas's proposal distinctively different from the democratic-participatory emphasis to be found in Barber (1984; 1987). See Habermas (1996a: 300–1 and 1994b). For Habermas's response to Joshua Cohen's (1989) version of deliberative politics, see Habermas (1996a: 304–6).
23 On the distinction between ‘strong’ and ‘weak’ publics, see Fraser (1992).
24 See Habermas (1996a: 373–4).
25 Bohman (1994: 924–5). For a different interpretation, see McCarthy (1994: 49). McCarthy points out that ‘independent public forums … are for Habermas the basis of popular sovereignty’: they provide the locus for the exercise of public reason, and the results of that exercise are ‘translated via legally institutionalized decision-making procedures … into the legitimate administrative power of the state’ (1994: 49). For a very interesting collection of essays on the public sphere see Calhoun (1992).
26 Bohman suggests that one of the points of contention between a liberal and a radical view of democracy is the locus of public reason: while for liberal democrats like Rawls public reason is exercised in the state institutions, for radical democrats public reason is exercised ‘in the public sphere of free and equal citizens’, as was the case, for example, with the civil rights movement Bohman (1994: 926).
27 See Habermas (1996a: 310). The same point is made by Nancy Fraser (1992).
28 See Ackerman (1983; 1989; 1990) and Holmes (1988). See also Moon (1991), Barry (1995) and Waldron (1993).
29 On this point, see also Benhabib (1989a: 149–54).
30 In a similar vein, see also Ackerman (1994a: 369–71).
31 Habermas (1990: 88). On the relation between the discursive notion of validity and Habermas's philosophy of language, see Rasmussen (1996a; also 1990: 56–74).
32 Occasional resurgences of this aspect can still be observed in Between Facts and Norms. One of the most interesting proposals for ‘weakening’ the determinant judgment premises of this version of the discourse ethics has been put forward by Seyla Benhabib (1989b: 381–3; 1992: 26–38). See also Ingram (1987). Very interesting also is the suggestion to cast the universalization test in a negative form, as a test for screening out norms that cannot be universally accepted (i.e. at least one of the concerned persons would presumably object): see Wellmer (1991: 201–2). In a similar direction points O'Neill's version of constructivism (1989: 211–13). The idea of a fallibilistic principle of universalization is also at the centre of Scanlon (1982) and Nagel (1991).
33 On this point, see McCarthy (1996) and Bernstein (1996).
1 On this point, see Covell (1993). See also Social Theory and Practice (1980).
2 See Murphy (1990), Guest (1992) and Burke (1992).
3 See Dworkin (1977: 7).
4 See Dworkin (1977: 24–5).
5 See Dworkin (1977: 27).
6 See Dworkin (1977: 26).
7 See Nozick (1981: 294ff).
8 See Dworkin (1977: 40).
9 See Dworkin (1977: 43–4).
10 See Dworkin (1977: 44).
11 See Dworkin (1986: 318).
12 See Dworkin (1986: 322).[Page 235]
13 On the relation of integrity to the notion, equally central in Dworkin's approach, of rights, see Gaffney (1996). For a critical appraisal of the integrity approach, see Ackerman (1994b: 520–1).
14 See Dworkin (1986: 228–32).
15 See Dworkin (1986: 234).
16 See Dworkin (1993: 67).
17 See Dworkin (1993: 18–19, 30–60).
18 See Dworkin (1990: 55–8).
19 A further distinction is needed, argues Dworkin, ‘between what we value incrementally – what we want more of, no matter how much we already have – and what we value only once it already exists’ (1993: 73). Our longing for knowledge is an example of the first type of importance, and human life and art are examples of the second. We do not wish that there be as many works of art as possible, but once one exists, we feel we owe it special protection on account of its being intrinsically valuable. Aside from the case of something becoming sacred out of association with something else already sacred, something acquires sanctity by virtue of the way in which it came into being. Works of art and cultures are intrinsically valuable ‘because they embody processes of human creation we consider important and admirable’ (1993: 75). Much in the same way we think of animal and vegetal species as intrinsically valuable on account of the creativity implicit in the process of natural evolution that has produced them.
20 See Dworkin (1993: 88).
21 See Dworkin (1989a: 484–5; 1990: 42–7).
22 Rousseau was the first to point out the moral import of the dynamics of identity formation and identity change, in his novel Julie, or the New Héloise. See Ferrara (1993a: 93–109).
23 On the distinction between the communal life of a community and its political life, see Dworkin (1989a: 492–9). For an interesting appraisal, see Honeyball and Walter (1998).
1 See Parsons (1990: 323–4).
2 See Chapter 1 in Walzer (1983).
3 See Rawls's argument against the dependency of even pure procedural justice on an uncontested notion of the good (1995: 170–3).
4 See Ackerman (1980: 50–1).
5 See Chapter 5 of Ferrara (1998a).
7 For a reconstruction of this view of the good, see Jay (1995).
8 For interesting considerations on Ackerman's constitutionalism in relation to Dworkin's, see Bellamy (1996).
9 See Ackerman (1991: 6; also 1992). For critical appraisals of Ackerman's dualist model of politics, see Galston and Galston (1994) and Herzog (1994). For a response, see Ackerman (1994b).
10 For a view of this sort see Michelman (1995a; 1996a; 1996b).
11 See Ackerman (1991:14–15). The point is further elaborated in Ackerman (1994b: 531–3), where the author introduces a distinction between his own point of view, not unfavourable in principle to the entrenching of certain fundamental rights, and the point of view actually reflected in the Constitution, which contains no such entrenching of any core of inalienable rights.
12 Michelman distances himself from Ackerman's version of the distinction between higher lawmaking and ordinary, in that in his opinion Ackerman tends to convey an overly conformist view of normal politics and to overlook how under the ashes of its routines often the seeds of constitutional transformation are already implanted. See Michelman (1988: 1522–3).
13 Equivalents of these three types can be found in the series of emblematic portraits of contemporary [Page 236]individuals occupying various positions on the spectrum from involvement to privatism drawn in Bellah et al. (1985); see also Bellah et al. (1992) and Bellah (1991).
14 See Ackerman (1991: 267–8).
15 For example, some states allowed for conventions to make constitutional proposals, but not for ratifying conventions. See Ackerman (1998: 37).
16 See Ackerman (1998: 126).
17 In fact, Mississippi and other states did say ‘No’ to the Thirteenth Amendment.
18 The former provided relief for the emancipated blacks and the latter granted them the ‘full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens’ (quoted in Ackerman 1998: 170).
19 See Ackerman (1998: 182).
20 Ackerman (1998: 311).
22 On this point see Ackerman (1998: 403–6).
23 See Ackerman (1991:54–5).
24 This trend is also confirmed by Ackerman (1997).
1 See Michelman (1995c: 16). Throughout this chapter I will quote, with Frank Michelman's kind permission, from unpublished drafts of his that are still undergoing extensive revision.
2 See Michelman (1995c: 55–6; also 1997b).
3 See also Michelman (1986; 1988).
4 See Michelman (1986: 47).
5 For a critical appraisal of Michelman's reconstruction of republicanism, see Fallon (1989: 1725–30).
6 See Michelman (1995a: 246–7).
7 For Michelman's understanding of the concept of community, see Michelman (1994b: 69–72). On the perfect compatibility of a certain republican (namely, more Machiavellian than Aristotelian) view of democracy with a certain liberal (namely deliberative, as opposed to ‘pluralist’ à la Dahl or Schumpeter) conception of democracy, see also Sunstein (1989: 1567–8; 1990; 1996) and Sullivan (1988).
8 See Rawls (1971) and Habermas (1990). For interesting defences of this view, see Forst (1992) and Baynes (1988).
9 See Dworkin (1990), Raz (1986) and Kateb's (1992) account of ‘democratic individuality’.
10 See Michelman (1996c: 310–12).
11 See Dworkin (1996: 16–17).
12 On the notion of exemplary universalistic validity implicit in Simmel's notion of the ‘individual law’, see Ferrara (1997: 85–7).
13 See Michelman (1995a: 244–7). See also Michelman (1995c: 88–90), where the distinction is implicitly drawn via a discussion of the respective roles of the Supreme Court and the so-called ‘People's Court’.
14 On the political movement that led to the Eighteenth Amendment, see Hamm (1995) and Ashbury (1968).
1 For a partially convergent reconstruction, see also Josefson and Bach (1997).
2 See Habermas (1996a: 165). Significantly, in the German original edition (Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Frankfurt, Suhrkamp, 1992, p. 204), Habermas listed also abortion and issues of criminal procedural law [Page 237](e.g. the prohibition against certain methods of presenting evidence) as instances of moral problems. These examples have disappeared in the English edition, which has been supervised by Habermas himself. On the same problem, see Bernstein (1996: 1143).
3 See Habermas (1996a: 166–7).
4 See Habermas (1996a: 166–7).
5 Even in Habermas (1993a), an essay largely concerned with multiculturalism, the issue remains unaddressed. See also the interesting considerations on cultural incommensurability in Ingram (1995; 1996). See also the contributions collected in Passerin and Benhabib (1996).
6 What is really surprising about this interpretation is that, even in the face of its obvious difficulties, rejection of it is not unanimous in the literature. While McCarthy explicitly rejects it when he states that ‘[Habermas] is not talking of the aggregation of individual interests but of the transcendence of merely particular interests in a search for the common good’ (1991: 184), Wellmer appears inclined to accept it in holding that a valid norm is ‘equally in the interest of all those affected’ (1991: 148ff), and Habermas (1993b: 143–5) seems to corroborate this reading when he extensively and approvingly quotes Klaus Günther's (1988: 45–59) reconstruction of ‘U’ – a reconstruction entirely couched from the standpoint of ‘interests’.
7 See Habermas (1996a: 161).
8 See McCarthy (1996: 1120–5) and Habermas (1996b: 1499–1501).
9 Rawls makes the same point against Habermas's idea of a purely procedural understanding of justice: see Rawls (1995: 170–5). Also McCarthy points out that in so far as different substantive worldviews and ethical perspectives ‘figure in judgments regarding the common good, they will translate into differences on substantive questions of justice, that is, on whether specific laws or policies are equally in the interest of, or equally good for, all’ (1994: 57).
10 Some of the internal tensions and ambiguities as well as the difficulties connected with intuitionist moral realism are highlighted in the essays collected in Cohen (1984) and Hunt (1992).
11 I have discussed this pointmoreextensively in Ferrara (1993a: 145–7).
12 This, however, seems hardly sufficient to qualify the model of challenge as an aesthetic view of the good life. The same point is made by MacIntyre (1981: 180–1) in his discussion of the concept of a practice in relation to the notion of a skill, and his account of the model of challenge, understood as ‘the model of the quest’, has no aesthetic connotation.
13 See MacIntyre (1981: 63–4).
14 See Dworkin (1990: 32–3).
15 See Habermas (1996c).
16 For criticism along similar lines, see Bellamy and Castiglione (1997).
17 Indeed, Ackerman's claim is not that such entrenchment is undesirable or unjust, but simply that it finds no anchoring in any plausible interpretation of the present American Constitution. On the need for a new and entrenched Bill of Rights, see Ackerman (1991: 319–20).
1 I have tried to offer a more detailed appraisal of the problematic and the still relevant aspects of Aristotle's notion of phronesis and of Kant's notion of reflective judgment in Chapters 2 and 3 of Ferrara (1998a).
2 The expression is Thomas Nagel's: see Nagel (1986) and, for the more recent version of his perspective, Nagel (1997).
3 I first developed this idea in Ferrara (1993b).
4 See Williams (1981: 135), Davidson (1984: 184), Geertz (1973; 1983), Gadamer (1975: 404–6) and Putnam (1983: 191–7,234–8).
5 See Taylor (1985: 204).
6 See Walzer (1990).
7 The notion of situated impartiality underlying the judgment view of justice and reflected in the central proposition of the judgment view, thus, does not fall under the objections raised against the ideal of impartiality by Iris M. Young (1990: Chapter 4) and against liberal theories [Page 238]of justice by Susan M. Okin (1986; 1989). See also the critique of liberal notions articulated in Shanley and Pateman (1991), Pateman (1985; 1988) and Phillips (1993); and the critique of the Habermasian ‘subject of discourse’ in Meehan (1995). On the other hand, the judgment view of justice is designed to offer that perspective for passing judgment on the merit of the various ‘differences’ which Nancy Fraser (1997) has invoked against the ‘pluralist’ or ‘uncritical’ conception of difference. See also Benhabib et al. (1995), Nicholson (1997) and Lara (1998).
8 See Simmel (1987). For a commentary of its significance for a view of validity centred on authenticity and judgment, see Chapter 4 of Ferrara (1998a).
9 On this point see Chapter 5 in Ferrara (1998a).
10 On this point, see Honneth (1997a). For an English, but not exactly equivalent, version of the same paper, see Honneth (1997b).
11 See Weber (1975).
12 See Ferrara (1998a: 90–7 MS).
13 Pareto distinguished between the good for a collectivity and the good of a collectivity. While the latter notion admits of the totalitarian possibility of an increased fulfilment of the collectivity at the expense of some individuals, the former understands the good for a collectivity as that state which is optimal in the sense that any further change will result in a worsening of the fulfilment of some individual in the collectivity.
14 See Kant (1957: 30).
15 See Simmel (1984: 160).
1 Charles Larmore has developed this point with reference to the work of Rawls and Habermas in his paper ‘The Moral Basis of Political Liberalism’ (1997). His argument has influenced my own thinking on the subject in a deep way and I wish here to thank him for having suggested to me this idea, which however I am putting here to uses with which he most likely would not agree.
2 See Larmore (1997: 37).
3 See Dworkin (1981a; 1981b). See also Varian (1985) and Gosepath (1995).
4 See Scanlon (1982; 1999), Barry (1989; 1995), Nagel (1991), Gewirth (1978), Galston (1980; 1991) and Holmes (1995).
5 See Foucault (1991) and Deleuze and Guattari (1972).
6 This aspect is emphasized in Taylor (1992: 41).
7 See Larmore (1990: 23).
8 See Larmore (1990: 28).
9 Among the other attempts to explode the dichotomy between right-premised and good-premised conceptions of the moral point of view, see Honneth (1997a).
10 See Nozick (1981: 352–62) on the notion of self-choosing.
11 See Simmel (1987: 217).
12 See Ferrara (1998a).
13 The kind of relations in which justice appears to be a ‘development of the drive to revenge’ (Nietzsche 1968: 148, aphorism 255).
14 I am indebted here to Larmore's (1995) reconstruction of the two sides of the relation of the self to itself.
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