Beyond Justice by Agnes Heller (1987)
The incomplete ethico-political concept of justice seeks to establish a common normative foundation for different ways of life. It does not intend to mould ways of life in a single ‘ideal’ pattern. It does not recommend a single ethics (Sittlichkeit) intrinsic to such an ideal pattern. It posits the simultaneous existence of ways of life all bound to one another by ties of symmetric reciprocity. Ways of life can be bound together in this way if (a) they have certain norms in common, and (b) if they are ‘equalized’ by common norms. The question raised by the incomplete ethico-political concept of justice thus runs as follows: how is a pluralistic universe possible in which each culture is bound to every other culture by ties of symmetric reciprocity?
No incomplete ethico-political concept of justice can purport to be able to design the best possible way of life. If we assume that there are many ways of life, each of which is the ‘best possible’ for those living it, we must renounce, and in fact we have renounced, the ambitious project of the complete ethico-political concept of justice. Nevertheless, all adherents of the incomplete ethico-political concept of justice stand in a particular historico-cultural tradition; they all have a particular life experience (a biography); they all elaborate ideas in affinity with certain social needs. All of them will therefore recommend utopias, ways of life in harmony with their traditions, life experiences and particular ideas. It is possible to reject and criticize existing norms and rules as unjust only if one can recommend alternative norms and rules as just. We cannot design such alternative norms and rules except by departing from the life experiences we share with at least some members of a particular culture. If we renounce the intention to design the way of life we stand for, we cease to stand for this way of life, and we also relinquish the goal of actualizing the particular utopia we believe to be the best for us. Our ethico-political concept of justice is incomplete not because we forgo the designing of a way of life best for us (where ‘us’ stands for people sharing a particular historico-cultural tradition), but because we are aware that what is best for ‘us’ may not be best for everyone, that a particular utopia may be best for a particular group of people, even though it is not the best for ‘us’. As far as the design of concrete utopias is concerned, theories conceived in the spirit of an incomplete ethico-political concept of justice complement one another.
In addressing the question ‘How is a pluralistic cultural universe possible in which each culture is bound to every other culture by ties of symmetric reciprocity?’, we cannot stretch our imagination beyond what is possible. This is why the common normative foundation of various ways of life cannot be based on, or conjectured on the basis of, two assumptions: abundance, and the perfection of human nature. Of course, concrete utopias (arising out of a single way of life) which do assume abundance or perfectibility cannot be simply dismissed. Since abundance and scarcity are relative to needs, particular ways of life with complete abundance are not beyond imagination. Nor is a community in itself inconceivable in which all participants excel in complete human goodness (for example there is the eventual actualization of the Kantian ‘Invisible Church'). However, neither abundance nor perfectibility can be regarded as a precondition of the good life, even less as pertaining to the normative foundation of all forms of life.
I first spoke of ‘symmetric reciprocity’ in the first chapter of this book, which dealt with the formal concept of justice (the maxim of justice). ‘Symmetric reciprocity’ was said to be the condition of the application of the ‘golden rule’ of justice. If we ask, ‘How is a pluralistic universe possible in which each culture is bound to every other culture by ties of symmetric reciprocity?’ we project the possibility of the universalization of the ‘golden rule’. The normative foundation of the incomplete ethico-political concept of justice is not the normative foundation of morals, but the normative foundation of justice. Just norms are socio-political norms (as are unjust ones). As mentioned, we can denote socio-political norms and rules as just (or unjust) only if they have a moral aspect. This moral aspect of just norms is the good. It has been mentioned too that to apply just norms to every person to whom these norms relate is always a moral matter, and to be just is a moral virtue. Thus the normative foundation I have in mind is that of just socio-political norms which include this element of moral goodness.
Symmetric reciprocity (the precondition of the universal actualization of the golden rule of justice) excludes relations of superordination and subordination, hierarchy and domination. It includes social intercourse, communication, mutual understanding, co-operation, and the like. Common normative foundations must be theoretically proposed for the actual normative foundation of social intercourse, communication, mutual understanding, co-operation, and the like. The kind of procedures that secure the full universal actualization of the golden rule of justice, the question of whether procedures alone can secure this end, or whether certain substantive qualifications must be accepted as guiding ideas of such procedures – these are the main issues I shall address.
Moralists, dreamers and religious enthusiasts have rejected the norms and rules of their times as wicked. They have cried out that virtue is trampled underfoot and evil flourishes and that no justice exists on earth. The actualization of the idea ‘to each according to his or her moral goodness’ is justice, and nothing short of this is just. But such justice will never be.
Social contestants of injustice have very rarely, if ever, had this kind of justice in mind. When contrasting their imaginary norms and rules to the existing (institutionalized) ones, they have not had as their objective a world of perfect moral goodness. Rather, their objective has been to secure a greater amount of, or a different kind of, freedom: an increase in life chances (of everyone or a particular social cluster); new, alternative political and social institutions; or admittance (of everyone or of their particular cluster) to the old, existing institutions. Such objectives have shone in the light of perfect justice. If only society would accept the new norms and rules, the world (our world) would be what it is not: it would be just.
The more justice becomes dynamic and the more dynamic justice is taken for granted, the more rapidly justice transmutes into injustice. Yesterday’s justice is today’s injustice; today’s justice is tomorrow’s injustice. Justice becomes a chameleon in reverse: it always assumes colours other than those of its environment. The moment the environment assimilates to its colour, justice itself changes colour. We chase justice without embracing it. We correct particular injustices, we achieve particular justices, but we never achieve full justice. Justice is a phantom of different shapes. Can this phantom be caught at all? Is a just society possible?
There are a number of different answers to this question. I shall enumerate only four, and shall leave aside their variations and combinations.
1 All societies have been just, at least as long as a particular form of domination has enjoyed legitimacy. Just society is possible, but ‘justice’ is not an indicator of the desirability of a society.
2 All hitherto existing societies have been unjust, because, owing to exploitation, domination and the division of labour, they have not experienced factual equality (égalité de fait). The future society will abolish the social division of labour, and all exploitation and inequality, thus the future society (socialism) will be the perfectly just society. This society has not so far been possible, but it is possible now. Indeed, a completely just society is desirable.
3 We must accept ‘chasing the phantom’ as part of our human condition, and live with it. We are always able to correct some injustices. New injustices will undoubtedly occur, and in time be corrected. Progress is piecemeal. The just society is indeed a phantom, because it is neither possible nor desirable.
4 A society beyond justice is impossible and undesirable. A completely just society is possible but undesirable.
Since this last statement coincides with my own standpoint, I shall elaborate on it in some detail.
A society ‘beyond justice’ is one where no concept of justice applies. A completely just society is a society where only the static concept of justice applies. I shall begin with a discussion of the former statement and proceed to the latter.
Only where there is justice is there injustice. If there were no injustice, there would be no justice either. If we opt for a society where there is no injustice at all, and where there cannot be, we opt for a society without justice, for the notion ‘justice’ would no longer make sense. Thus we would opt for a society beyond justice. Since the formal concept of justice is the maxim of justice, a society beyond justice must be one where the formal concept of justice does not apply. The formal concept of justice, as the maxim of justice, enjoins that, if certain norms and rules constitute a social cluster, these very norms and rules must be applied to every member of the cluster consistently and continuously (both in action and in judgement). The formal concept (the maxim) of justice can only be eliminated if all norms and rules are eliminated, for, if even one norm or rule remains valid, this norm should be applied consistently and continuously to all members of the cluster it in part constitutes.
A society without any norm or rule is only conceivable if we subscribe to the chimera of an ‘anthropological revolution’ – that is, if we project a humankind in which every single human being is the embodiment of morality (rational humankind) or of the ‘human essence’. However, should normative authority only dwell ‘within’ individuals, should it become completely ‘Internal’, it could still provide us with a yardstick to measure action and judgement, and this yardstick should then be applied consistently and continuously in our interaction with all other people. When the young Marx insisted that in a future (non-alienated) society punishment would become self-punishment, and our fellow creatures would provide our absolution, he was still operating with the notion of formal justice, even if he considered that he had moved beyond justice. This self-punishing individual of the future has reason for self-punishment upon failure to act according to a norm, and has committed an injustice in failing so to act. Self-punishment will follow in proportion to the injustice committed. The transgressor’s fellow creatures will be able to grant absolution because they will know as well that an injustice has been committed (otherwise they would view the self-punishment as stupidity), and they will confer absolution only because (and in so far as) self-punishment has already occurred. In other words, not even the notion of an ‘anthropological revolution’ leads us per se beyond justice. It only does so if we imagine that every person is equally and completely identical with rational humankind (or human essence), a situation where no one can commit injustice. And, if no one can commit injustice, there is neither justice nor injustice; thus ‘justice’ as a concept makes no sense at all, and we are indeed ‘beyond justice’.
The ‘anthropological revolution’ is an absurdity, and not simply something ‘not yet feasible’. That which is not yet feasible (not within reach in the foreseeable future) can still capture our imagination as a rational utopia. And such a rational utopia can still provide regulative ideas for our actions and judgements. Yet the situation projected by the notion of an ‘anthropological revolution’ is a non-rational utopia, because it includes a self-contradiction. What is more, it is self-contradictory not only as a socio-political utopia but also as a moral utopia, as I argued in the first section of chapter 2. Briefly, this argument was as follows. A person who prefers suffering injustice to committing injustice is a righteous person. If no injustice can be either committed or suffered, it is not the case that everybody will be righteous; rather nobody will be. That is why the ‘best possible moral world’ must be one wherein wrong can still be committed, as well as suffered.
The arguments used to show that the ‘anthropological revolution’ is neither viable nor desirable as the basis of a moral utopia can equally be used to show its insufficiency as the basis of a sociopolitical utopia – all the more so in that the moral utopia serves as the foundation of the socio-political utopia. However, such a sociopolitical utopia can never even be imagined, for the simple reason that it is beyond imagination. Anarchists are, as a rule, caught red-handed if they try to answer the question ‘How are social institutions possible without any social norms and rules?’ They usually reply that these and other norms will be abolished (made redundant), and, while such propositions are always arguable, they cannot present us with even the most abstract and abstruse image of a society where no norms and rules exist. Where there are no norms and rules, there are no institutions, no communities, no human bonds, no human existence.
It is unnecessary to touch upon the problem of ‘human nature’ in order to reject the utopia of a society beyond justice projected on the basis of an ‘anthropological revolution’. One could ponder the questions (of no small relevance) of whether our psychological make-up, our fragility, the limits to the use of our reason are so many insurmountable obstacles to any such revolution. These and similar considerations could provide new arguments for the unfeasibility of the idea, but they would add nothing to the fundamental view that a society beyond justice, and the ‘anthropological revolution’, are undesirable. The latter is the stronger argument.
Of course, making a case against the ‘anthropological revolution’ is not tantamount to making a case against changing our social nature. Up to a point, human nature is very elastic, in ways that are for the better as well as for the worse. Even individuals can undergo quite substantial changes in the direction either of moral elevation or degradation. Considered commitment to positive norms and values can bring out the best in us; unconsidered attachment to untested norms, or, alternatively, the dissolution of normative structures and commitments, the worst. The limits to our nature are set by the ‘human condition’, by the substitution of norm regulation for instinct regulation. Instead of pondering a world ‘beyond justice’, a world without any kind of norm and rule regulation, if we address the following questions we should be considering something not only more ‘feasible’, but also more humane.
a What type of norms and rules are desirable?
b What are the desirable procedures for constructing such valid norms?
c (On an even more utopian level.) What could be the normative foundation of the best possible moral world?
Thus I have reached the conclusion that to go ‘beyond justice’ is ‘A neither possible nor desirable. I shall now take up my statement ‘A completely just society is a society where only the static concept of justice applies.'
Whether and to what extent a particular society is just or unjust depends first and foremost on the attitude of the members of that society. If all norms and rules of a society are taken for granted, if no one utters the devalidating sentence ‘This norm/rule is unjust,, then the society can legitimately be called ‘just’. Yet members of other societies or cultures (either as contestants or as observers) can still utter the devalidating sentence ‘Such and such norms and rules of the (first) society are unjust.’ Since the devalidating sentence is not simultaneously delegitimizing, the society contested or observed from without will remain just, but its justice will be relativized. It will not be completely just.
A society can be completely just if in one of following two alternative situations holds.
1 There is a single set of norms and rules in all societies and every norm or rule is taken for granted (it is not queried or contested by any member of any society).
2 There are different sets of norms and rules in different societies and cultures, but, none the less, every one of these different norms and rules is taken for granted by all members of all cultures. No member of any culture makes a devalidating statement about any of the norms and rules of any other culture (society).
In the history of humankind there have existed several societies unfamiliar with dynamic justice. However, their justice was subsequently relativized by other cultures, marking the departure from the attitude of ‘natural’ ethnocentrism, and increasingly also from the position of rationality of intellect. The emergence of dynamic justice has transformed our regard in such a way that no society can ever again be completely lust, only just ‘to a greater or lesser extent’, and similarly, unjust ‘to a greater or lesser extent’.
Even in these terms, a completely just society is clearly not impossible. it is only impossible under the condition that justice will always remain dynamic. But we cannot make true statements about the future. The statement ‘Justice will always be dynamic’ is neither true nor false.
Should justice cease to be dynamic, a completely just society would become possible both in a prospective and in a retrospective sense. More precisely, it would become possible in case (1) only prospectively, in case (2) both prospectively and retrospectively.
In terms of model (1), the social norms and rules are to be established for the whole of humankind. From the perspective being taken here it is quite irrelevant what kind of norms and rules they are, and how they would be established. What is relevant is that all of them will be taken for granted. They could be norms and rules initially established by consent; they could be norms and rules initially established by a central agency of domination. In addition, they could be either egalitarian or strictly hierarchical rules. In any case, though, this society would be completely just, because no one could say (or would say) that any of the norms and rules in question were unjust. The norms and rules, whatever form they took, would be consistently and continuously applied to every member of any given cluster constituted by them. Static justice would remain in full force. If Huxley’s imaginary institutions in Brave New World were to be established on our planet, society would be completely just. The norms and rules constituting the alpha cluster would apply, consistently and continuously, to all members of the alpha cluster, and the norms and rules constituting the beta cluster would apply in the same way to all members of the beta cluster. And so it would also be in the lower clusters. A society like this would develop the self-identity of the only true, complete and absolutely just world order, and this is why no other society could be regarded by its members as completely just, not even as just in retrospect.
Model 2 is the negative utopia of total cultural relativism.
I have hinted in chapter 1 at the self-contradiction inherent in theories of total cultural relativism. If the statement ‘Each and every culture is unique and cannot be either compared or ranked’ is true, and if the evaluative conclusion drawn from this statement ('Cultures should neither be ranked nor compared') is right, then the ranking and comparing of different cultures has already taken place, in that the cultures which permit the above statement to be made and the above evaluative conclusion to be drawn are seen as superior to others: they contain one more true sentence and one more right injunction than any other culture. This self-contradiction could only be eliminated if both the statement and the evaluative conclusion were accepted by all cultures. If the members of all cultures agreed that neither their truth claims nor their validity claims could possibly be compared to the truth claims or validity claims of any other culture, then no member of any culture could devalidate any norm or rule of any other culture. It would then become impossible to make the statement ‘This norm is unjust.’ One could only go so far as to say, ‘This norm is different.’ To renounce devalidation procedures altogether is a commitment with retrospective force. If the justice of no contemporary culture could be ‘relativized’, the justice of no previous culture could be ‘relativized’ either. The relativizing tendency of dynamic justice would disappear for ever.
And in this way too dynamic justice would disappear in every single culture. If any given norms and rules are just as good as others, how could we make the devalidating claim ‘These norms are unjust’ in our own culture? Once again, we could only go so far as to say, ‘Our norms are different from yours.’ And, indeed, the model of total cultural relativism does not allow the image of a culture in which norms and rules are genuinely contested: no reason could possibly exist for such a contestation.
Although sophisticated theories could still invent an (Imaginary) process of new culture formation within a universe of hermetically closed cultures, strong arguments would support the prediction that in such a universe all norms and rules within all cultural units should be taken for granted. If all norms and rules are considered only as different in kind, and no norms and rules can be devalidated as unjust by the members of any other culture, and if the norms and rules are taken for granted within each and every culture, then all societies are completely just.
A completely just society of this kind is unlikely to come about, but it is not impossible.
Thus a completely just society is possible, but a completely just society is a nightmare.
The negative utopia of a completely just society contradicts the supreme universal principles. It contradicts the conditional value (equality) and the procedural value (communicative rationality). If one is committed to realizing the universal values, one cannot want a society where no one can make the devalidating statement ‘This norm/rule/law is unjust.’ However, a society in which people can and do make this devalidating statement is not a ‘just society'; certainly, it is not a completely just society. Members of a free society, a free humankind, are, by definition, free to test and query norms, rules and laws again and again, for these are not taken for granted. They are not taken for granted because dynamic justice is taken for granted.
Are people, then, simply ‘mistaken’ in cherishing dreams of a ‘just society'? Is their dream nothing but a kind of ‘false consciousness'? Are not those theorists right who describe such dreams in terms of ‘chasing phantoms'? Is it not true that all recommendations concerning justice as such are futile, seeing that, in correcting certain injustices, we inevitably create new ones: the process of piecemeal progression?
Such a conclusion would reaffirm dynamic justice as a taken-for-granted procedure, but it would simultaneously delimit the scope and force of dynamic justice. Those cherishing the dream of a ‘just society’ do not delimit, however, the scope and force of dynamic justice, but, rather, live up to it fully. ‘Just society’, in the everyday use of the term, is only a shorthand formulation for the image of a society where alternative norms and rules are substituted for existing ones considered unjust.
The statement that a just society is not desirable is not tantamount to saying that seeking alternative norms and rules, not merely in respect of replacing one particular norm or rule with another, is ‘chasing phantoms’, and is thus either futile or undesirable.
The incomplete socio-political concept of justice does not aim at constructing the image of a just, or completely just, society. Rather, it addresses two related problems. The first concerns the initial establishment of socio-political norms and rules (and laws). The second concerns the procedures through which socio-political norms and rules (and laws) should be contested as unjust.
The first problem can be briefly formulated in the following way: how can socio-political norms and rules (and laws) be established by equally free people rationally, so that, at the time of being established, these norms and rules (and laws) provide equal life chances and equal freedom for all?
The second problem can be briefly formulated thus: if any of the socio-political norms, rules, and laws are seen as unjust by members of the generation which initially established them, or by members of a future generation, how should this contestation be carried out rationally, by equally free people, so that the result ensures anew the equal life chances and equal freedom of all?
The normative foundation of justice is not the normative foundation of a ‘just society’, but the normative foundation of all possible societies where the ‘golden rule’ is actualized in any form of socio-political intercourse. I turn now to this question.
The normative foundation of an ethico-political justice is tantamount to the normative foundation of an idealized model of the best possible socio-political world. The theory is constituted by certain value premises as grounding norms already selected, interpreted and formulated in view of the ideal model allegedly conjectured from those premises and norms. However, even if the selection, interpretation and formulation of value premises and grounding norms happens to be performed under the guidance of the ‘model idea’, neither the value premises nor the grounding norms are ‘irrationally chosen’, nor are they arbitrary. As Hegel’s dictum correctly stated, the Sittlichkeit of the age serves as a real starting-point. The grounding norms and the value premises of both the philosophical theory and the ideal model of the best possible socio-political world cannot be termed ‘empirical’, but they must have, and indeed do have, an empirical ‘backing’. There must be at least some people committed to the very values, and guided by the very norms, which constitute the ‘normative foundation’ of the theory and the ideal model of the best possible socio-political world. Of course, it is by no means necessary that the social actors committed to those value premises and norms should philosophically reflect upon what they are doing and why they are doing it.’ The ‘empirical backing’ of the ethico-political concept of justice can be understood in terms of a bet, to touch upon Lucien Goldmann’s interpretation of Pascal’s theory. The philosopher bets on both the present and the future simultaneously. This bet is on actors of the present committed to the same value premises and norms in their actions, interactions, forms of communication and lifestyles here and now (in the present), in which the future society, the ideal society, the ‘model’ of a good society, must be grounded. To bet on this model, idea or utopia is to bet on the actors who advance, represent and embody this model, idea or utopia in their lives. Such a bet is not arbitrary. Good reasons can be given, and first and foremost good moral reasons, why one does in reality bet on this actor and not that actor. Nor is such a bet irrational. A philosopher does not enter into philosophical speculation with a mind free of all normative commitments. This person bets on particular people (particular forms of life) in value-rational terms; the bet itself is a considered act resulting from previous value commitments. Although the bet is neither irrational nor arbitrary, a bet it remains. The model, the idea, the utopia cannot be conjectured from the socio-political structure of the present, although modern philosophers often venture into sham deductions. Only the bearers of alternative and utopian ways of life could actualize models, ideas and utopias of this kind, but whether they would do so or not is unknown at the time of the bet (that is why it is a bet). If we design an ethico-political concept of justice, if we ponder justice and injustice in our everyday life, neither our value commitments nor our norms remains hidden behind the veil of ignorance. But what does remain hidden under this veil is the relevance or irrelevance of the idea, and the future of the values and norms we stand for.
The incomplete ethico-political concept of justice I am going to recommend is committed to answering the question ‘How is a pluralistic universe possible in which each culture is bound to every other culture by ties of symmetric reciprocity?’ Thus the normative foundation of the philosophical theory must be simultaneously the normative foundation of such a pluralistic universe. The question to be answered runs as follows: ‘What kind of norm(s), if obeyed, would make possible a pluralistic universe where each culture is bound to every other culture by ties of symmetric reciprocity?’ The actualization of that which is possible is hidden under the ‘veil of ignorance’, and this is why it is of no cognitive relevance for the theory. The theory I am going to recommend is not empirically founded. It has, none the less, an empirical ‘backing’. One can always point to the fact that there are indeed people here and now who observe the ‘golden rule’ in all their social and political actions (speech acts included). Those who, if it comes to judging acts of domination, force and violence, in whichever culture they may appear, denounce the application of different standards as if they were double standards, belong to this group of people.
The generalization and universalization of the ‘golden rule’ is the generalization and universalization of the ‘just procedure’. Generalization means that the golden rule, traditionally viewed as a rule of static justice, becomes the rule of dynamic justice as well. In other words. the golden rule not only informs the proper application of pre-existing norms and rules, but also informs the establishment and contestation of all possible norms. Universalization means that the procedure enjoined by the golden rule (in both static and dynamic justice) is conceived of as the common norm of the overarching cluster ‘humankind’. It follows not only that each culture of a pluralistic universe is tied to all others by the bonds of symmetric reciprocity, but also that the denizens of any particular culture within the pluralistic universe are tied to each other by these bonds.
I term the generalizing and universalizing of the ‘golden rule’ the supreme political good. I term the plurality of cultures and ways of life which meet the standards of the supreme political good the supreme social good. The supreme political good actualizes the universal norm ‘equal freedom for all’. The supreme social good actualizes the universal norm ‘equal life chances for all’.
The actualization of the supreme social-political good is the ‘best possible social-political world’. The best possible social-political world is, however, not identical with the best possible moral world. And this is so not only because the very idea of the supreme social good (plurality of ways of life) carries the claim that there may exist several different ‘best possible moral worlds’ (plural), but also because the best possible social-political world is only the precondition of best possible moral worlds; it is not yet such a world. The ‘best possible moral world’ is the telos inherent in the life and actions of righteous persons.
All the same, if we believe that actualizing the supreme social-political good is the precondition for actualizing the supreme moral good, we cannot impute the supreme moral good (the best possible moral world) as the inherent telos to the actions and ways of life of all righteous persons. We must then assume that righteousness must be somehow informed by the idea of the supreme social-political good. Only thus can a form of righteousness come about which indeed posits the telos of the best possible moral world – in other words, the supreme moral good.
An incomplete ethico-political concept of justice includes two elements, as do all ethico-political concepts of justice: the political (socio-political) element, and the ethical element. The socio-political aspect is the normative foundation of the possibility of a pluralistic universe in which every culture is tied to every other by bonds of symmetric reciprocity. The ethical aspect addresses the problem of the moral-ethical propensities required for the readiness to actualize such a universe – in other words, to live up to its normative requirements. It must be repeated once again that the normative foundation of the best possible social-political world must not presuppose the state of ‘abundance’, and that the discussion of moral propensities required for the readiness to actualize such a world and to keep it running must not presuppose any ‘anthropological revolution’.
The formulation of an incomplete ethico-political concept of justice poses several serious difficulties. This is so because the concept is simultaneously universalizing and deuniversalizing. That which is to be universalized (and generalized) is the ‘golden rule’ of just procedure. However, the simultaneous existence of several different cultures and ways of life is posited, everything else should be deuniversalized No particular patterns of political institutions, retribution, distribution, ethics or particular cultural values can be designed as befitting, the idea, because it is assumed that all patterns are to be in accordance with particular forms of life, and thus different. The only institution to be addressed in concrete terms is the procedure inherent in symmetric reciprocity, for this alone is posited as universal. Similarly, only that aspect of ethics is to be addressed in universal terms which keeps the universal institutions running. Complete ethico-political concepts of justice have the advantage of concreteness. Since they reflect upon one single way of life, since they idealize one particular kind of Sittlichkeit, they experience no restraint in universalizing it. Authors of complete ethico-political concepts of justice can rationally intuit, for we can all intuit within the tradition of our own culture. An intuition of this kind can be good and fruitful and garbed neatly in the mantle of conjectures and refutations. Rawls’s Theory of Justice is a good example of a complete ethico-political concept of justice of this kind. Rawls operates with the idealized model of the ‘triad’ pattern, and conceals his own intuition behind the ingenious construct of the ‘original position’. The model of ‘just distribution’ becomes concrete because it is the idealized distributive model of a particular way of life. The price to be paid for such concreteness is a kind of fundamentalism. A particular model of distribution is presented in such a way that it appears the model of just distribution. The concrete, if idealized, modus operandi of a particular way of life is universalized as such, and no other types of distributive patterns can claim ‘justice’.
How can this pitfall be avoided? How can anyone design a model without relying upon his or her own intuition? Also, how can anyone then resist the temptation to set the imagination free and commit to paper the very ideal arrived at? The incompleteness of ethico-political justice is apparently fraught with a dilemma. Either we restrict ourselves to the discussion of a few norms, substantive or procedural, that we conceive as the sole universals, and thus completely forgo any discussion of political institutions, social structures, property relations, technologies and moral norms proper, or we fall prey to the ‘universalizing fallacy’. Yet I believe that this dilemma can be circumvented. In this chapter I discuss only the norms I recommend as universals, and I do so in highly abstract terms, without making any attempt at concretization. I willingly admit that my cultural background, my intuition, my tradition, are
the sources of my concrete ideal.’ But I do not intend to universalize my ideal. Instead, I invite all those committed to generalizing and universalizing the ‘golden rule’, regardless of philosophical persuasion, to present their own social ideals, and to do so whilst relying upon their own traditions, their own cultural background, their own intuitions. If no one is trapped by the universalizing fallacy, the plurality of such social ideals can be nothing but the happy anticipation of a pluralistic universe, where each culture is tied to every other by the bonds of symmetric reciprocity.
In his study ‘Diskursethik’ ('Discourse Ethics'), Habermas proposes the theoretical acceptance of the ‘fundamental principle of universalization’ (Universalisierungsgrundsatz) as the sole moral principle. ‘Discourse ethics’ is described there as the procedure by which human beings can completely live up to the imperative of the moral principle. The conclusion is self-evident (within the philosophy of Habermas), for the ‘fundamental principle of universalization’ itself has been founded via a quasi-transcendental deduction from the conditions of argumentation (Argumentationsvoraussetzungen). For our purposes it is not necessary to follow the logical (and critical) steps which have resulted in Habermas’s theoretical proposal. It suffices to discuss the proposal itself.
I can sum up my view of the ‘discourse ethics’ advocated in Habermas’s paper in the following steps.
1 Both the ‘fundamental principle of universalization’ and the procedure by which men and women can live up to ‘discourse ethics’ can be viewed as alternatives to a social-contract theory. Habermas proposes a principle under the guidance of which, and a procedure via which, socio-political norms can be tested and established in a world of general and universal symmetric reciprocity. To put this the other way round, only if sociopolitical norms are tested and established under the guidance of the fundamental principle of universalization and via the procedure of discourse ethics are socio-political relationships established as relationships of symmetric reciprocity. This is why I accept both the fundamental principle of universalization and the discourse ethics as the basic normative foundation of an incomplete ethico-political concept of justice, and simultaneously as the normative foundation of a (possible) world in which all cultures (ways of life) are tied to one another by the bonds of symmetric reciprocity. However, I add that the basic normative foundation is not yet the complete normative foundation, and I shall adduce suggestions as to how to complement it.
2 I shall show that Habermas’s ‘sole moral principle’ is not a substitute for the categorical imperative (as he believes it is). Habermas’s ‘sole moral principle’ is the principle of justice. Of course, justice includes a moral aspect, and for this reason the principle of justice is also a moral principle. But the principle of justice is not a pure moral principle par excellence (as the categorical imperative truly is), because it has to have recourse to interests and consequences, which a pure moral principle must not do. From this respect the Habermasian proposal is utterly un-Kantian. Yet in another respect it is Kantian in an orthodox sense. Habermas wants to reduce all moral principles to one ‘sole’ principle, and he does so more conclusively than Kant ever did. In my view (and I shall return to this point in chapter 6), morality cannot be grounded on one single principle, not even on one kind of principle.
I turn now to Habermas’s proposal in detail.
The ‘fundamental principle of universalization’ is formulated twice. I quote the first formulation: ‘Thus every valid norm must satisfy the condition that the consequences and side effects which would (predictably) result from its general observance in the course of satisfying the interests of each and every individual, could be accepted (and preferred to all known alternative regulations) by all those concerned.’ Habermas also defines ‘discourse ethics’ twice. Again, I quote the first formulation: ‘In a discourse ethics, a norm may only claim validity when all those potentially concerned with it, as participants in a practical discourse, achieve (or could achieve) a consensus that this norm is valid.’ The second formulation is more laconic, but it is also stronger: ‘Only those norms which find (or can find) the consent of all those concerned as participants in a practical discourse may claim validity.'
Habermas assumes that the choice of norms can be rationally grounded. Further, he imposes a restriction on the factual universality of the fundamental principle of universalization: ‘I have introduced the fundamental principle of universalization as a rule of argumentation which makes consensus possible in practical discourses when matters can be settled in the general interest of everyone concerned.'
In formulating the fundamental principle of universalization, Habermas has taken a decisive, if not yet the final, step away from his own orthodox consensus theory of truth (rightness) in practical discourse. Within the framework of the orthodox consensus theory, discourse is not guided by any principle at all. The rules of speech themselves engender the true (and right) consensus. The participants in discourse live up to the rules of speech, and to these rules alone. Living up to the rules of speech is not dependent on the empirical will; it is not a matter of choice. Prior to writing his paper on discourse ethics, Habermas was in complete agreement with Apel, who insisted that the moral ‘founding norm’ is implicit in the will to argumentation, and that this is why this will can be termed ‘unconditional’ and ‘categorical’. True enough, Apel restricted this proposal to philosophical argumentation alone, whereas Habermas applied it to every discourse. As many critics of Habermas, myself among them, have pointed out, no discourse can result in a ‘true consensus’ unless the participants share at least one value, norm or principle before entering discourse ('higher-order consensus'). It is obvious that Habermas, in his paper on discourse ethics, has modified his theory along the lines suggested by certain of these critics. The ‘founding norm’ is no longer implicit in the argumentation, but prior to it. Discourse does not engender true consensus unless it is conducted under the guidance of the fundamental principle of universalization. One could even apply the Kantian-Hegelian distinction of morality and Sittlichkeit to this theoretical recommendation. The Sittlichkeit of discourse is informed by morality – namely, by the fundamental principle of universalization.
Despite this departure from his former theory, Habermas, in my view, has not as yet gone far enough. The fundamental principle of universalization has been kept completely formal. Habermas wants to avoid the traps of a complete ethico-political concept of justice, and to my mind rightly so. He is fully aware of the dangers implicit in the attempt to suggest any substantive norm as the norm of ‘higher-order consensus’. Succumbing to such temptation would be for him tantamount to superimposing a norm (value) native to our culture, tradition, biography or intuition on the participants in the discourse, and thus tantamount to anticipating the result of the discourse itself. (This is exactly what Rawls has done.) However, if no substantive value is provided, anticipated or suggested in the ‘higher-order consensus’, the principle itself cannot possibly provide the guidance it is supposed to provide for the discourse.
Since in my view Habermas’s fundamental principle of universalization is a sensible alternative to the ‘social contract’, but not to the categorical imperative, in what follows I shall refer (with certain modifications) only to social and political norms, not to moral norms proper.
The fundamental principle of universalization is about testing any given social or political norm or rule. Social-political norms and rules must stand the test of whether the foreseeable consequences and side effects they would exert, if accepted, on the satisfaction of the interests of every single person would be accepted by every person.
At first sight this formula seems to meet all the requirements of the normative foundation of a society based on symmetric reciprocity. If the consequences and side effects experienced by every single person are considered, ‘equal life chances for all’ are secured. If these consequences and side effects are not only considered but also accepted by every person, ‘equal freedom for all’ is secured as well. Consequently, under the guidance of the fundamental principle of universalization, and via rational discourse which lives up to this principle, social-political norms that actualize the universal principles ('equal freedom for all’, ‘equal life chances for all') can be established, designed and followed. Moreover, the formula leaves the door open for any further contestation of justice ('not this is just but that is just'). Indeed, only the foreseeable side effects and consequences can be considered. Should unforeseen consequences and side effects occur, an alternative norm must be suggested and accepted under the guidance of the same principle.
What then, is the problem?
For some time now Habermas has been a principal exponent of the view that the validity of all norms should be tested in a cognitive procedure. His paper on discourse ethics contains a lengthy discussion of Tugendhat’s proposal, one which is the very opposite of his own. For Tugendhat, Habermas argues, discourse aims at ‘will formation’. Consensus is free and true if it results from the will of all – that is, from each and every will. Once a common will has been achieved, it is irrelevant to ask whether or not it issued from a rational argumentation procedure. Against Tugendhat, Habermas contends that such a proposal does not permit us to distinguish between a true and a false consensus. In this I agree completely with Habermas. Tugendhat succeeds in merging the ‘will of all’ with the ‘general will’, but is the will of all as the general will also, by definition, the good will?
Despite having provided sound reasons for rejecting Tugendhat’s consensus theory, Habermas, in my view, actually ends up proposing something very similar. If we accept the fundamental principle of universalization as the guiding principle of discourse, the discourse itself will aim solely at ‘will formation’. The sole criterion of the rightness (justness) of norms will be whether every person accepts the side effects and consequences ensuing from the acceptance of any given norm. The discourse will centre on the free acceptance of consequences and side effects, and not on determining via a cognitive process whether the norm is right or just. The following is suggested to us: the sole criterion of the rightness and justice of a socio-political norm is the free acceptance of all side effects and consequences which the norm, if accepted, would impose on every individual by each and everyone. Here again the ‘will of all’ becomes tantamount to the ‘general will’, but whether it is the ‘good will’ we do not know, nor can we know, for there is no substantive criterion provided for gauging the goodness of the will.
In Habermas’s formula very little room has been left for cognitive procedures proper. It is the ‘satisfaction of interests’ which informs the will, and does so directly. However, interests (or needs, as I should prefer to call them, ‘Interest’ being fully ‘booked’ by the ‘triad’ model in the context of a specific understanding) are not ‘natural entitles': they are themselves informed by values and norms. Moreover, interests (needs) themselves cannot be subjected to discussion at all. More precisely, they cannot be thus subjected if we are to achieve consensus at all, and they should not be. As to the first point, Hume already knew, and he was right, that the discussion of needs is never conclusive. One justifies needs with other needs, and so it goes ad infinitum. As to the second point, if we take the notion ‘equality of life chances’ seriously, then all needs must be recognized, and recognized equally (recognition of needs is included in the full recognition of the personality). Habermas’s formula suggests this too. But how can we escape this vicious circle where needs themselves are informed by values and norms, but where the will to the acceptance of a norm is informed by needs (Interests)? There is no way other than by suggesting that the discourse should be conducted among values, provided that each value has an affinity to one or another need of individual actors. And this is indeed the only viable way because the concrete need structure (if you wish, the structure of different kinds of interests) is strictly individual. Habermas’s formula covered this problem, for he did not suggest that the side effects and consequences resulting from the validation of a norm should promote in full the interest satisfaction of every individual; he only suggested that every individual should accept those consequences and side effects on the grounds of his or her interest. However, this proposal implies (if we do not assume that interests or needs are given as ‘nature’, and Habermas does not) that the discourse conducted should be a value discourse. (One can say, ‘I vote for Labour and not for the Conservatives, although progressive taxation is not in my interest.
But I do this for reasons of principle. I support the value of social equality.') It should be added that one can enter into rational discourse by having recourse to interests and needs only, and we do so all the time, but such a discu ssion cannot result in consensus; it can only result in rational compromise.
Thus the discourse (in both a real and a hypothetical situation) concerns values, and this is why the will cannot be directly informed by interest. Still, if discourse takes place among values, the cognitive process proper sets in. What is to be tested in this cognitive process is the truth (or falsity), the rightness (or wrongness) of values. Only if consensus is reached about the goodness of a value (or certain values) can the ‘general will’ (tantamount to the ‘will of all') be in fact the good will of everyone.
Granted this, a value discourse cannot be settled in the particular way Habermas insisted it should (by the free consent of all) without a ‘higher-order consensus’ about the unconditional and absolute validity of at least one single value (prior to the discourse). Contestants enter the discourse with different values, and they all try to justify their values (as right and true). They do so by resorting to values higher than those which they want to justify, by proving that the latter are but an interpretation of the higher values, or that they can be related to these higher values without logical contradiction. If the participants do not share any supreme value, they will resort to different kinds of supreme values, and the discourse must then remain unsettled. However, if they share one supreme value, the discourse can be settled in one of two ways (or by a combination of these ways). The positive outcome of the discourse can either be that all contesting values can be related to the supreme shared value without self-contradiction, or that they are only different interpretations of the same value. In both these cases it has been proved that all contesting values are true values, and the socio-political norm to be established should be such as to facilitate the actualization of all of them. The result can also be that certain values cannot be related without logical contradiction to the supreme (shared) value, and that they are not interpretations of that value either. But, since all contestants have already accepted this supreme value as absolute and unconditional, those unable to relate their values (without logical contradiction) to the supreme value will concede, by their free will, that their values are wrong (untrue). For consensus is always free if the person who resigns a particular value does so out of rational insight.
The value of the ‘higher-order consensus’ must be taken for granted as self-evident, for it has a normative power beyond reasoning. What I termed the attitude of ‘rationality of reason’ is the foundation of all kinds of rationalities. Even the attitude of ‘rationality of intellect’ cannot completely circumvent it. We can reach agreement about something we disagree upon if we already agree on something else. If we do not accept any substantive value as taken for granted, as not open to testing, consensus can be based on will formation alone, thus it will not be rational. Total rationalism is self-contradictory.
It. is thus seen that Habermas’s fundamental principle of universalization does not provide us with the guidance intended by Habermas himself (aiming at the cognitive testing of the justice or injustice of norms and the rational establishment of just ones) unless at least one substantive value is ‘given’, a substantive value which informs the fundamental principle of universalization itself.
If we have only the formal fundamental principle of universalization in mind, and if we abstract from all substantive values which may inform this principle, we must reach the disquieting conclusion that any norm or rule can be proved just and right. Everyone concerned can agree to accept the norm that every man and woman over sixty years of age should be abandoned in the desert to die of starvation.’ All that is required is that every member of the community in question should freely consent to the consequences (and the side effects) of this action, and that they submit to the same fate when reaching the age of sixty. This follows strictly from the fundamental principle of universalization, and it only sounds absurd because we have already accepted freedom and life as universal values, and because we cannot imagine that people might freely renounce those values. Habermas’s fundamental principle of universalization sounds correct because Habermas himself accepted those values unconditionally (something which shines throughout his text), and because he surmises that everyone else has done so. But there is a major difference between accepting a norm freely and accepting a norm which actualizes freedom.
Let me now reformulate Habermas’s fundamental principle of universalization and the definition of ‘discourse ethics’ as the normative foundation of an incomplete ethico-political concept of justice and, simultaneously, the normative foundation of a pluralistic cultural universe, where each culture is bound to every other culture by the bonds of symmetric reciprocity.
My reformulation of the fundamental principle of universalization runs as follows: ‘Every valid social and political norm and rule (every law) must meet the condition that the foreseeable consequences and side effects the genera; observance of that law (norm) exacts on the satisfaction of the needs of each and every individual would be accepted by everyone concerned, and that the claim of the norm to actualize the universal values of freedom and/or life could be accepted by each and every individual regardless of the values to which they are committed. The consequences and side effects of these norms must be preferred to those ensuing from all alternative regulations, and the norm must actualize the universal values of freedom and/or life to a greater extent (more fully) than other alternative regulations would do.'
Thus, in my conception, the fundamental principle of universalization is the principle of socio-political legislation.
No single individual, no ‘authoritative body’, can live up to the fundamental principle of legislation. Not even the wisest legislator endowed with best of will can substitute his insight for the insight of everyone concerned. In ancient communities, given their roughly homogeneous system of values and needs, a substitution like this might have been possible, but not today. In a modern society real discourse must be conducted with the participation of everyone concerned. Discourse is the only possible, and not just the best or most preferable, procedure of legislation, if the requirements of the fundamental principle of legislation are to be met. Consequently, I subscribe to Habermas’s definition of ‘discourse ethics’, with one modification: I do not speak of norms in general, only of social and political norms (laws) in particular. My formula reads as follows: ‘According to the ethics of discourse, a social-political norm (law) can claim validity only if all those concerned, as participants in a practical discourse, aim at (or would aim at) agreement about the validity of that norm.’ Discourse ethics is doubtless an ethics because it includes, as well as excludes, certain attitudes towards values (norms), and at the same time provides a yardstick for the recognition and/or non-recognition of practical claims. To my mind, discourse ethics is the central moral institution of the ethics of citizenship, although it does not encompass all of its aspects.
I have restricted the applicability of both the fundamental principle of universalization and discourse ethics to the process of legislation. I subscribe to them (in a modified form) only in so far as the validation of socio-political norms and rules (just norms and rules, just laws) is concerned. I have advanced my view that the fundamental principle of universalization is not a viable alternative, and in fact is no alternative at all, to the categorical imperative. Although the basic problems of moral philosophy will be raised only in my final chapter, I shall give some reasons at this point for rejecting Habermas’s formulas as irrelevant in any moral philosophy. However, certain qualifications must be made. The fundamental principle of universalization has absolutely nothing to do with moral philosophy, whereas ethical discourse does. Yet the kind of ethical discourse of utmost importance in morals simply does not fit the straitjacket of discourse ethics, for the former is not informed by the fundamental principle of universalization. Consequently, it does not and must not live up to that principle.
To judge by his paper, Habermas himself is more than aware of this fact. He raises almost all the genuine moral issues, only to brush them aside as so many obstacles to the full observance of the ‘fundamental principle’. At one stage he even poses a restriction on the applicability of that principle. Let me quote the relevant passage for the second time: ‘I have introduced the fundamental principle of universalization as a rule of argumentation which makes consensus possible in practical discourses when matters can be regulated in the general interest of everyone concerned.’ If this is true, we are left with the following alternative. Either the opening sentence of Habermas’s first formulation of the principle (’thus every valid norm must satisfy the condition ...') is untrue, or all norms (moral norms included) must meet the requirement that ‘matters can be regulated in the general interest of everyone concerned’. The latter restriction is not untrue if applied to moral norms proper, but it is completely irrelevant.
Take for example the value ‘human dignity’, and the norm related to that value, ‘keep your human dignity’ (preserve your human dignity, live up to your human dignity, and so on). In my view this norm qualifies for a universal maxim, but we need not dwell upon this problem now. Yet is this norm valid, or should it be recognized as valid, only because all those ‘concerned’ accept the consequences and side effects (what an awkward formulation!) that the validation of this norm would exert on the ‘satisfaction of their interests’, and because they have preferred this norm to an ‘alternative regulation'? To be more specific, if A keeps his/her moral dignity, he/she observes this norm irrespective of side effects and consequences (normally painful ones), and at the same time wishes that everyone else would do the same. But, if everyone did in fact do the same, ‘keeping our dignity’ would not result in painful side effects and consequences. If the norm were to be validated by the rule of the ‘fundamental principles’, side effects and consequences would be completely different from what they are now, and the norm is valid now. Moreover, if I recognize and observe the norm ‘keep your human dignity’ in retaining my dignity, and I wish that everyone would do the same, I do not assume that ‘keeping human dignity’ in fact meets the interests of ‘everyone concerned’ (every human being). Rather, I insist that everyone should be concerned with keeping his/her human dignity, and that the moral interest invested in keeping one’s dignity should be preferred to other interests. Finally, I keep my human dignity even if no one else is actually concerned with keeping their human dignity.
What if we now take a norm which does not qualify for a universal maxim, such as ‘solidarity with my brethren’. In this case, who are those ‘concerned'? My brethren alone, or everyone who has ‘brethren’ (and how about those who have none)? Let us assume that only my brethren are concerned, and that the side effects and consequences following from the observance of this norm are accepted by all my brethren. But why should this norm be ‘generally observed'? If half my brethren did not recognize this norm as binding for them, and would not agree to observe it, the norm would not cease to be a norm, and would remain firmly valid for those recognizing and observing it. If those observing the norm ‘solidarity with my brethren’ were not intent on imposing this norm on those brethren who did not recognize it as binding for them, and if the latter recognized the validity of this norm for those observing it, then the norm would be ‘freely accepted’ by everyone concerned, even though it would not be generally valid.
The proposal that the only moral norms that should be generally valid are those that can be generally validated is tautological. The proposal that the only moral norms that can be recognized as valid are those that can or could be generally validated is false. Let us quote the stronger definition of ‘discourse ethics’ again: ‘Only those norms which find (or can find) the consent of all those concerned as participants in a practical discourse may claim validity.'
The qualification ‘consent of all those concerned’ could imply consent to the validity of that norm (recognition of the norm as valid). It could also mean that the norm is recognized as valid and as binding for everyone concerned. As I have argued above, the two suggestions are different in kind. But, since the discourse ethics is to be informed by the fundamental principle of universalization, the recognition of a norm must imply that this norm is binding for everyone concerned (that it is generally binding). Now, moral norms which are not simultaneously moral maxims are not necessarily generally binding. Moral maxims which, on their part, should be generally binding, are usually not tested in a real discourse, but intellectually intuited (occasionally with a view to an ‘imaginary’ discourse), and validated in terms of ‘ought’, irrespective of consequences and side effects. From whatever angle one approaches the fundamental principle of universalization and the definition of ‘discourse ethics’, the result is the same: they do not qualify as formulas of morality and moral philosophy. The questions ‘How should I act?’ and ‘What should I do?’ are not answered at all by these two formulas.
None the less, as I have already suggested, they do qualify as the formulas of just legislation.
The preconditions of the relevance of the formulas (in their modified version) are as follows.
1 A group of people has a problem to solve or an objective to achieve which concerns all members of that group.
2 The problem to solve or the objective to be achieved requires a standing regulation. This regulation can be substantive as well as procedural.
If this is the case, all members of the group must conduct a real discourse concerning the problem and the objective at hand, and concerning the standing regulation (law, convention, norm, rule) relating to the solution of the problem and the realization of the objective. The discourse is to be informed by the fundamental principle of universalization. The rules, regulations and laws which are to be validated can be seen as means to achieve the end, to solve the problem under discussion.
Moral norms are related to values and not to problems or objectives. They cannot be established (or seen) as means to achieve something. Even if morality were completely rational, moral norms would (and could) still not be constituted with a view to problems to be solved or objectives to be achieved. (Rather, the latter have an impact on the application of moral norms.)
The maxim ‘keep your human dignity’ is, for example, not valid (and can never be rationally validated) with respect to a problem it ‘solves’ or a non-evaluated objective it achieves. However, the validation of laws and other social-political norms and regulations occurs precisely in conjunction with such objectives and problems, or at least this is what should happen if validation is supposed to be rational.
I shall give an example which covers all possible cases. In a particular community water is in short supply. If everyone in this community uses water according to his or her usual needs (beyond justice), the existing water reserves will rapidly decrease and in the foreseeable future it will prove impossible to satisfy elementary needs. So there is a problem, that of a water shortage, and there is an objective, to provide the amount of water needed for the culturally determined basic needs in the foreseeable future. The decision here is obvious. The use of water should be regulated. But what kind of regulation should be accepted? How should the rule (regulation) be established? In a society based on symmetric reciprocity, the kind of regulation must be decided in a real discourse in which everyone concerned can participate (if they wish). The fundamental principle of universalization (with my modification) informs the discourse. First, life should have priority. The use of water should be regulated so that drinking-water is available for all persons and animals, and for the survival of necessary vegetation. Secondly, the regulation should be formulated in such a way that the consequences and side effects that a rule of this kind exerts on the need satisfaction of every individual should be accepted by every individual. This second condition is met anyway if the rules emerge out of real discourse. The discourse cannot be conducted about needs (and interests). It must be conducted about values having affinity with those interests. One cannot discuss whether someone has the need to use the home swimming-pool (for all needs must be recognized equally), but even those who have such a need can resign freely the satisfaction of their needs if they accept other values (for example, the value of hygiene) as having a higher standing than the value ‘pleasure’. Finally, a regulation will emerge which satisfies the criteria of the fundamental principle of universalization. And this rule (the law) is to be observed by every person. Failure to do so will result in just punishment (retribution).
‘Everyone concerned’ can be a group of people, a community, the citizenry of a state, ‘every member of any given culture’, ‘every member of every culture’ (that is to say, humankind). The problems or objectives encompass all problems or objectives which can be solved or achieved by social and/or political regulation, and by such regulation alone.
It follows that those laws (conventions, norms, rules) regulating the social-political intercourse between different cultures (in the pluralistic cultural universe) must be validated by all human beings in sequences of real discourse conducted within each culture (way of life). Yet laws (conventions, norms, rules) regulating the social and political intercourse within a cultural universe must be validated only by members of that universe (by all of them, in sequences of real discourse). Norms and rules regulating the social and political intercourse of a group of people (a single way of life) must, again, be validated only by the members of that group (in real discourse). Accordingly, the social and political norms validated within one culture, one state, one group, one way of life will differ from one another and from all others. If there are to exist several ways of life within one body politic, the laws of that body politic must be validated by each citizen of the body politic regardless of his/her own way of life. However, the regulations within a particular way of life are validated solely by the members of that way of life, and do not require the participation of citizens who are not members. But all discourse must be informed (guided) by the fundamental principle of universalization.
The above discussion calls for the reassessment, although not for the redefinition, of the fundamental principle of universalization. The term ‘universal’ cannot carry the same meaning in this context as it does in the composite ‘universal maxim’. A maxim is universal if claimed to be valid for every human being. The fundamental principle of universalization, though, vouchsafes the validity of a socio-political norm even if the norm itself is not valid for every human being (but only for those whom the norm concerns). Only norms validated by every member of humankind, thus norms regulating socio-political intercourse among different cultures, are universally valid. Strictly speaking, the fundamental principle of universalization is not the principle of universalization at all, but the universal principle of the logic of argumentation for validating socio-political norms. There is an analogy here with moral maxims and moral norms. On the one hand we encounter moral maxims claiming universal validity (validity for every human person), and socio-political forms validated by every human being via real discourse under the guidance of the fundamental principle of universalization. On the other hand we encounter moral norms not claiming such universality, because they are binding only for those who resolve to observe them, and socio-political norms validated by every member of a culture, way of life, body politic, community or group, but binding only on the members of the group to which the norm relates. We test norms with universal maxims (moral norms should not contradict the observance of universal maxims). Similarly, the validation of any socio-political regulation is – informed by the fundamental principle of universalization. I have also mentioned the fact that moral norms which do not contradict moral maxims are recognized as valid also by those uncommitted to them, who do not observe them. To formulate this more cautiously, these moral norms should be recognized as valid by everyone, since they would be recognized as valid if people were equally free and if the moral were rational. The same must be stated about all sociopolitical norms legitimized by discourse informed by the fundamental principle of universalization. Each culture or way of life must recognize as valid the socio-political norms and rules of any other culture or way of life, even if it has validated, and thus observes, different ones.
This analogy does not eliminate, or even diminish, the essential and crucial differences between moral norms and socio-political regulations (laws) in non-traditional societies. It is probably completely superfluous to add that a theory formulated with the intention of replacing theories of social contract cannot relapse into traditionalism of any kind. Universal maxims are both substantive and formal, whereas the fundamental principle of universalization is formal, even though I have added one substantive qualification to it (actualization of the universal values of life and freedom), No real discourse is needed in testing norms by maxims (though such a discourse could be conducted), whereas the validation of all sociopolitical norms should occur via real discourse. Notwithstanding the crucial differences, the analogy is still important. And, since the fundamental principle of universalization performs the function of guiding and testing, I shall term this principle the universal maxim of dynamic justice.
Let me briefly reiterate certain basic steps of my argumentation. defined the formal concept of justice as follows: if the same norms and rules constitute a social cluster, these norms and rules apply to every member of that cluster. I termed this formal concept the ‘maxim of justice’ (all kinds of justice must meet this standard). Dynamic justice, on the other hand, has been defined as the procedure by which existing (valid) social and political norms and rules are tested, queried and devalidated, and, simultaneously, where alternative social-political norms and rules are validated. I have argued that those contesting existing norms and rules as unjust can have a moral right to do so (the moral right ensues from the observance of valid moral norms). Further, I have proved that the contestants normally have recourse to one interpretation of the value of ‘freedom’ or ‘life’ to back their claim. Finally, I have concluded that the ‘contestation of justice’ can be made by discourse, by negotiation and by force. Discourse, as the vehicle, the form of contestation, is possible if the contestants are both free and each other’s equals.
A ‘just society’, a society without dynamic justice, is undesirable. What is desirable is the generalization and universalization of dynamic justice as a just procedure. The only just procedure for (generalized and universalized) dynamic justice is discourse. Discourse can be such a procedure if the contesting parties are free and equal. And they are free and equal in a society where the ‘golden rule’ is universalized and generalized – thus, in a society of symmetric reciprocity.
The universal principle of dynamic justice is but the symmetric counterpart of the maxim of justice. The norms and rules constituting a social cluster should be applied to every member of the cluster consistently and continuously. Every member of a cluster should reaffirm, consistently and continuously, the norms and rules of this cluster.
Do we have a moral right to claim that the universal principle of dynamic justice should be accepted as the principle of the just procedure for establishing and contesting socio-political norms and rules? Indeed we have, for the universal principle of dynamic justice is but a claim to observe a universal moral maxim in full. This maxim is the Kantian one that no human being should serve as a mere means for any other human being. The moral maxim stands higher than the universal principle of dynamic justice because the universal principle draws its ‘moral right’ from the moral maxim. This maxim is also the source of the ‘sense of justice’ which suggests (and insists) that people should not be subjected to socio-political regulations of which they are not authors. The fundamental principle of universalization cannot even be viewed as the ‘sole moral principle’, for the validation of its own claim rests on another (and higher) principle, an authentically universal and moral one.
The universal principle of dynamic justice universalizes one of the outstanding aspects of all types of dynamic justice – namely, the possibility of having recourse to the values of freedom and life. The universal principle of dynamic justice explicitly includes the injunction to actualize the values of life and freedom. The formula itself guarantees that only such interpretations of freedom and life can be actualized as do not involve the use of other people as mere means.
I have set forth my view that Habermas’s ‘fundamental principle of universalization’ and ‘discourse ethics’ offer a sensible alternative to theories of social contract, but I have not yet elaborated on how and why this is so. I now turn to this matter. Since I have modified both Habermas’s concepts, from now on I shall refer to these modified versions only, under the labels ‘the universal maxim of dynamic justice’ and ‘value discourse’. In chapter 3 I mentioned that social-contract theories contain certain problems. I repeat them here, with certain modifications and additions.
1 The theory must presuppose a single Time One (the time of entering into the contract).
2 For this reason, it must presuppose a real (or imaginary) ‘state of nature’. In other words, it must step ‘outside history’.
3 The legitimation of the contract is to be based on the ‘laws of nature’.
4 All contestations of injustice must have recourse to the same ‘laws of nature’ (a conjectured past which has never existed).
5 Although anchored in our historical consciousness and our claim to universality, this historical ubiety remains unreflected in theories of social contract.
6 Theories of social contract must (and do) design particular social and political systems (norms, laws, and the like) as the good and the just systems.
7 In theories of social contract, the ‘good’ and ‘just’ institutions cannot be modified. This follows from their definition as the good and just institutions par excellence. Unless it comes to a breach of contract (by the sovereign), all norms and rules set by the contract remain in full force.
8 Real consent of everyone is relegated to Time One. In Time Two, Time Three, and so on, ‘consent’ must be considered ‘tacit’.
9 Whether or not the ‘general will’ originates from the ‘will of all’, the former is always alienated from the latter.
10 Accordingly, theories of social contract legitimize a kind of domination (Rousseau’s included).
Rawls’s theory of social contract has circumvented several traps of the traditional theory of social contract, but not all of them.
a The ‘original position’ is only a streamlined version of the ‘state of nature’. It is impossible to choose, to legislate, to reason, under the ‘veil of ignorance’. If the existence of a real Time One (in the past) is not assumed, it must be assumed that Time One is always here. In my view this is a very reasonable assumption. Yet, even if we could abstract completely from the position we occupy in a society (from our group affiliations and vested interests), we can never place our values, our ‘concepts of good’, our commitments, under the ‘veil of ignorance’. If we inquire as to what people would choose if they were able to forget not only their group affiliations and vested interests, but also their values, commitments, and concepts of good, we can answer this question only by relying on our values, commitments, and concepts of good (which are not without affinity to our group affiliations and vested interests). Rawls is guilty of what we could term the ‘substitution alist fallacy’, just like all traditionalist theorists of contract.
b It follows from this point (which has been made frequently in this book) that Rawls must draw up the model of a just society (or of an approximately just society). To establish the priority of freedom (with which I wholeheartedly agree), there is no need for the makeshift ‘original position’ at all. Designing concrete social rules (in the main, the rules of distribution) is the result of the substitutionalist fallacy.
Constructing the normative foundation of the theory of justice via the universal maxim of dynamic justice and value discourse avoids all the pitfalls of the traditional theory of contract.
(1) What could ‘Time One’ possibly mean in this conception? One could answer in the following way: the ultimate (Imaginary) Time One is the time when, in a pluralistic cultural universe, all ways of life will be connected by the bonds of symmetric reciprocity. For, in the pluralistic universe of the overarching cluster ‘humankind’, all ways of life can be connected by these bonds if the ties between different cultures (the common sociopolitical norms of ‘humankind') are set via value discourse according to the universal principle of dynamic justice. However, we could also answer the question in this way: imaginary Time One is the particular time when in a single state (or culture) the citizens are connected to each other by the bonds of symmetric reciprocity. For all citizens (regardless of the way of life they are otherwise committed to) will set their common socio-political norms and rules (they will legislate) in terms of the universal principle of dynamic justice, via value discourse. We could even answer the question in this way: Time One is the particular time when the members of any group or community are connected to each other by the bonds of symmetric reciprocity. For all members of that group (community) set their common sociopolitical norms and rules in terms of the universal maxim of dynamic justice, via value discourse. Clearly there are here and now such communities and groups. Thus Time One is here and now. And Time One will be here tomorrow, and the day after tomorrow. Time One is a continuum. The universal Time One of the pluralistic universe when all ways of life are connected by the bonds of symmetric reciprocity is the regulative idea of each and every Time One. Yet the universal maxim of dynamic justice and value discourse are constitutive ideas of each and every Time One. Thus ‘Time One’ is both existent and imaginary.
(2) The theory does not even permit ‘stepping outside history’. Dynamic justice itself is seen as a relative latecomer to histories. The generalization of dynamic justice is attributed to modernity. Similarly, the universalization of the values of freedom and life (the values of ‘higher-order consensus') is understood as a historical product.
(3) The legitimation of the theory is based on something that does exist (both empirically and as an idea): humankind. The different cultures of the pluralistic human universe are in fact already tied to each other, with the bonds of domination and violence, but also with the bonds of mutual dependence, and occasionally even those of co-operation and negotiation. This is the empirical fact. Humankind, as the overarching essential cluster, exists as an idea: this is the fact of reason.
(4) The contestation of laws (norms and rules) must involve recourse to the universal values of life and freedom. These values are not products of philosophical speculation. They are factually universally valid (freedom), or in the process of factual universalization (life). When I say ‘factually universal’ I mean ‘transculturally universal’. Freedom has become first and foremost a ‘value idea’. By ‘value idea’ I mean a value, the opposite of which cannot possibly be chosen as a value by anyone.9 Since Hitler, not even the worst kind of tyrant can now publicly confess that he prefers unfreedom to freedom. He does in fact prefer the former to the latter (he infringes systematically the value he is publicly committed to), but the problem of validity and the problem of observing values are worlds apart. There is no culture today in which unfreedom could be publicly chosen as a value (whereas inequality can be).
(5) The theory understands the universal maxim of dynamic justice and value discourse as expressions and products of our historical consciousness.
(6) The incomplete ethico-political concept of justice does not design, propose or conjecture any particular social system as the good or the just one. It presupposes that there may be several good or just systems, each quite different in nature. For all possible laws, rules and socio-political norms and rules are good and just by definition, if they are legitimized by all concerned in a rational value discourse, under the guidance of the universal maxim of dynamic justice, at the time of legislation.
(7) The generalization and universalization of the ‘golden rule’ is the generalization and universalization of ‘just procedure’. Whenever and wherever, in any Time One, a group of people agree that social norms and rules (or laws) will be legitimized from that particular moment on via (value) discourse, discourse conducted under the guidance of the universal maxim of dynamic justice, they have already agreed to just procedure. Such an agreement does not include agreement on the acceptance of any single concrete norm, rule or law as just. Only this much is assumed: that if a group of people does legislate via just procedure, and the value discourse is terminated by real consensus (which may or may not occur), then the recommended norm, rule or law will be validated, and will be lust at the time of validation. Everyone is the author of that norm (law), and as author will consider the law just. Authorship is tantamount to commitment.
Everyone is author of the law and thus everyone is committed to observing that particular law (social norm, rule and the like). However, the fact that a law (a social and political norm and rule) is considered just by everyone at the time of its validation does not mean that the same law will be considered just in Time Two, Time Three, and so on. First, unforeseen consequences and side effects may occur, and certain of those who have authorized the law (norm) may conclude, in view of these things, that the law is, in the end, unjust. They will then recommend alternative laws (rules, socio-political norms) in the traditional language of dynamic justice: ‘This is not just, but this other would be just.’ Similarly, in Time Two, Time Three, and so on, a generation which has not authorized the law (the socio-political norm or rule) can make the same delegitimizing statement. In this case the norm (law) will be retested in a new (value) discourse, since the just procedure for the contestation of justice is, and remains, discourse. Of course, in all forms of social intercourse a certain kind of stability is needed. The entire system of laws and sociopolitical norms cannot be changed every day. However, I doubt that the model of ‘just procedure’ runs the risk of becoming unstable. Acting according to already accepted norms is a matter of Sittlichkeit, and the latter has an affinity with ‘steadiness’. One can assume that, once laws, socio-political norms and rules, have been legitimized in a completely just procedure (as authorized by everyone), small divergences and inconveniences will not trigger the delegitimizing statement.
Is it not a curtailment of dynamic justice if only one kind of procedure is considered just? To my mind this question must be overruled as immaterial, for the simple reason that just procedure rests on the universal maxim of dynamic justice. The ‘golden rule’ itself is not open to choice or agreement because it is but one formulation of the definition of justice (the maxim of justice) and so it has been always understood. Where there is symmetric reciprocity, the ‘golden rule’ applies anyway. What is open to choice (and to agreement) is the matter (the substance) ‘given’ to the ‘golden rule’. I do unto you what I expect you to do unto me. What I do unto you and what I expect you to do unto me should be decided by you and me. No other just procedure can possibly be imagined, unless we believe in extrahuman, divine, legislation. In our world, some people believe in divine legislation, some do not. Furthermore, those believing in divine legislation believe in different forms of such legislation. Religious values (values intrinsic to religious beliefs) can enter the value discourse just like any other values, but they cannot provide the authority for sociopolitical legislation as such. If a group of people share the same belief and set (validate) their laws and socio-political norms in a just procedure, the consensus will accord with the values of that belief anyway. Even so, beliefs can change, as can values, and the laws accepted today as just will (or at least can) be devalidated tomorrow as unjust, with ours just as with any other human group and community.
(8) It follows from the aforementioned that real consent is not relegated to Time One. Since every law or socio-political norm and rule can be rediscussed (revalidated and devalidated) at any time, and they must be revalidated or devalidated every time there are members of the community (body politic, humankind) who believe them unjust, tacit consent’ cannot be viewed as the source of legitimation. Nevertheless, the ‘tacit consent’ of single individuals is not excluded. Participation in value discourses is a right: more precisely, a civil right. Whether such a civil right should also be considered a duty is, again, a problem that must be left open in an incomplete ethico-political concept of justice. Members of communities (of groups, of the body politic) should reach agreement on this matter too. As a citizen of a group (or a community) I would vote in favour of the possibility of ‘tacit consent’, and against making the right of participation a citizen’s duty. If someone could argue against my position from the standpoint of values I am ready to share, I would willingly listen to their arguments.
(9) In the theory I have proposed as an alternative to theories of social contract, the ‘general will’ is the result of the ‘will of all’. Any time that a divergence occurs between the general will and the will of all, the general will is to be re-established by the will of all. The will of all authorizes the law, the socio-political norm (the general will); in addition, it can withdraw authorization. If the will of all were to express the needs (and interests) of every person, the general will could not possibly be constituted by the will of all. But the constitution of the general will occurs via value discourse. Every person enters into this discourse, not in the form of a bundle of interests and needs, but as a bearer of cultural, social, political and moral values. (This is so even though, of course, people stand within institutions – which have already been established as the result of value discourse – for their own interests, and may consider the best result to be a compromise.) The discourse itself is about the cognitive justification of values. The latter can be conclusive because of the ‘higher-order consensus’ concerning the two universal values. True values accepted by rational insight determine the will as good will. It is precisely because of the rational justification of values (via discourse) that the will of all can engender and promote the general will.
(10) The normative foundation of an incomplete ethico-political concept of justice legitimizes (self-legitimizes) a society based on symmetric reciprocity. This, then, is a society without superordination and subordination, without social hierarchy, without domination. Regardless of whether a ‘society’ such as this is ‘founded’ in the form of a democratic family, a community, a group of friends, an association, a political or social organization, a body politic, a culture, many interrelated cultures, or the whole of humankind (as the overarching cluster), we are always in Time One.
I have suggested that Habermas’s ‘fundamental principle of universalization’ and ‘discourse ethics’ provide us with an alternative to theories of contract, and a superior one. I have recommended slight modifications to the formulas of both, to make them suitable to the purpose of this chapter: the laying of the normative foundation of an (Incomplete) ethico-political concept of justice.
Still, the substantive qualifications I have recommended to be introduced into the (otherwise too empty) formula of the fundamental principle of universalization have solved one problem only to create a new one. The new problem is novel only in this present context, for I discussed it earlier (in chapter 3).
I have placed two universal values in the ‘higher-order consensus’. I have said that argumentation (in the value discourse) must have recourse to them. As is known, the socio-political norms and rules (laws) validated via just procedure are also means to solve a problem or continuously to maintain an objective (such as distribution and redistribution, education, the institutionalization of political decision-making and execution, retribution, the peaceful settlement of international conflicts). Sometimes the objective (the problem) itself is such that only one of the two universal values (the ‘higher-order consensus') can prevail in the discourse. When both universal values have equal priority in the ‘higher-order consensus’ (with respect to the problem to be solved, the goal to be achieved), all members of the (value) discourse can have recourse to both freedom and life. And, if the value claims related to freedom and to life cannot be synthesized in a general will doing justice to both, no agreement. no consensus, can be achieved. Then the social rules, norms and laws will not be legitimized at all, or, alternatively, they will not embody the will of all (as rational good will). However, laws (social norms and rules) can still be set by negotiation; in other words, by compromise. To accept such a compromise in legislation is not tantamount to acting in awareness of the ‘dilemma’ of morality. If I must act in a concrete situation, and must choose between life and freedom in so acting, then I act in the awareness that, although the maxim of my action is universalizable, my action is not (I cannot recommend that everyone should choose the same!). But again, in the case of legislation, if I enter into a compromise concerning the ‘higher-order consensus’ and consent (against my rational will) – a compromise to the effect that freedom should be preferred against life, or vice versa – I do make a recommendation that should not be made.
If a conflict can appear within the ‘higher-order consensus’ (between freedom and life), this problem is insoluble. And such a conflict can occur at any Time One, except Universal (ultimate) Time One. Only if all cultures of the universal cluster of humankind were tied to each other by the bonds of symmetric reciprocity, and this were to happen within all cultures, groups, bodies politic, could both universal values be actualized consistently and continuously without contradiction. This is why I describe ‘Universal Time One’ as the best possible socio-political world. It is a world where there is no conflict between the universal value of freedom and the universal value of life.
At the beginning of this chapter, I defined the generalization and universalization of the ‘golden rule’ the supreme political good. And I termed the plurality of cultures, the plurality of ways of life, where all of them meet the standards of the supreme political good, the supreme social good. I concluded that the actualization of both the supreme political good and the supreme social good is the best possible socio-political world. Now I have arrived at the same conclusion from a different point of departure. In any Time One bar Universal Time One it is possible to have a conflict between the universal values of freedom and life. But this should not be so, because Universal Time One is the regulative idea of each and every Time One. Yet the conflict between life and freedom simply cannot be eliminated from the horizon of our present (as has been discussed in the final section of chapter 4, on ‘just’ wars). This is why Universal Time One is also the telos inherent in every Time One. If we are forced to face a choice which should not be made, we gaze towards an imaginary telos where this choice is not to be made.
Creating a world around us (be it as small as it may) in which we are tied to our fellows by bonds of symmetric reciprocity; generating our social norms and rules in a value discourse by having recourse to universal values; observing the norms of which we are authors, applying them consistently and continuously to each and every co-author of these norms – this is also an end-in-itself. In short, to live up to the universal maxim of dynamic justice – this is also an end-in-itself. However, the telos of the best possible socio-political world is inherent in all actions in which people live up to the universal maxim of dynamic justice. And here the analogy between righteousness as an end-in-itself, and the best possible moral world inherent as an end in the act of the righteous, is more than mere analogy. The best possible socio-political world is the condition of the best possible moral world. To live up to the universal maxim of dynamic justice does not require righteousness. But, in our times, righteousness requires that we live up to the universal maxim of dynamic justice, though it requires something above and beyond this as well.
The universal maxim of dynamic justice has turned out to be the simple reversal of the maxim of justice. The universal maxim enjoins that socio-political legislation should be the result of ‘just procedure’. Value discourse (with its well-known specifications) has been characterized as such a just procedure.
Settling socio-political conflicts via discourse is not a novelty. In chapter 3 I mentioned situations in previous histories where certain types of conflicts were settled by discourse. It is only among equals (members of the same cluster) that they were settled in this manner, and usually only among members of the highest social cluster, if ‘resolving socio-political conflicts via discourse’ was the procedural norm of the (higher) social cluster. Such discourses were always guided by a set of traditional norms. Participants had to resort to these traditional and sometimes divine norms, but always norms taken for granted. Value discourse guided by the universal maxim of dynamic justice is but the universalization and generalization of the traditional value discourse. Naturally, in an environment where socio-political conflicts are settled either by violence or by negotiation, such a discourse is possible only within one group, one way of life, one community, but the validity of the procedure cannot be restricted to those single groups. As we know, the regulative idea of the value discourse is Universal Time One. That is why the will to universalization should be inherent in every value discourse, even if conducted in the smallest group. Of course, ‘will’ is more than a mere subjective wish, for the rules of value discourse entail that will, in so far as the ‘higher-order consensus’ concerns universal values. Given that the values of ‘higher-order consensus’ are universal, any community engaging in practical discourse can claim that every community should do likewise. What you should do, you can do. Each and every community could validate its norms and rules by resorting to universal values. That is why the claim that they should do so is a valid claim. It must be stressed again that the universal claim is raised for just procedure, and not for the result of a just procedure. In different communities different value claims are raised. Discourse can be conducted among different values, and the values accepted consensually as true, and actualized in the sociopolitical rules and norms of the community, will also be different in kind. The injunction that all values must be related without contradiction to the values of ‘higher-order consensus’, and that the universal values should be interpreted such that the actualization of one interpretation should not in principle exclude the actualization of any other interpretation of the same universal value, covers the testing of all values, but does not define the substance of those values.
The definition of justice holds that justice means applying the norms and rules constituting a social cluster to each and every member of that cluster consistently and continuously. People who in fact apply these norms consistently and continuously are just. We know that to be just is a virtue, and to be unjust is a vice. Failure to apply the common yardstick, or applying it inconsistently and intermittently, means being guilty of the vice of injustice. A single unjust action or judgement does not make a person unjust. The action is unjust, but the person is not. However, repeated acts of injustice do make a person unjust. We also know that an unjust act is a moral offence, and an unjust person is morally inferior, even if the norm or rule which has not been applied in the way it should have been is not a moral norm.
One can become just in practising justice. In respect of pure static justice, the norms and rules all persons must learn to apply consistently and continuously are the norms and rules of Sittlichkeit (moral ethical custom). Practical reason (the rational testing of the validity of norms) has not yet appeared. One cannot as yet infringe the norms and rules by moral reason, by listening to the voice of the ‘internal authority’ of moral conduct (conscience). In the case of dynamic justice we do test the norms and rules of Sittlichkeit by rationality of intellect. Rationality of intellect tests these norms and rules from the standpoint of values and (moral) norms, and so morality and Sittlichkeit do not coincide. People can choose not to apply the yardstick provided by Sittlichkeit in their actions and judgements. They can choose to be ‘unjust’ (in terms of Sittlichkeit) in order to be just (in terms of morality). Also, they can choose to observe an alternative set of norms.
If the just procedure of legislation takes root in any community, the schism between Sittlichkeit and morality (injustice) disappears again. To use a Hegelian term, this is the state of the negation of negation. Both static and dynamic justice are negated as well as preserved, and thus synthesized at a higher stage. Static justice is preserved, because no one can label the just procedure as unjust. Static justice is negated in that no socio-political norms and rules are to be taken for granted (only the procedure by which they are derived is to be taken for granted). Dynamic justice is preserved, because the maxim of the value discourse is the universal maxim of dynamic justice. For obvious reasons, dynamic justice is negated. It cannot be claimed that the application of the universal maxim of dynamic justice is unjust from the standpoint of dynamic justice. Both kinds of justice are elevated to a higher (maximum) stage. How does this happen? Why does it happen?
Habermas spoke of ‘discourse ethics’, and to my mind correctly so. In a society where just procedure is taking root, engaging in value discourse and observing the norms of discourse are both procedures which become Sittlichkeit. We must assume that value discourse has been institutionalized in the broadest meaning of the word: every member of the community of argumentation expects every other member to observe the rules of the value discourse. I have in mind not the institutionalization of all value discourses, only the institutionalization of procedures of just legislation. But, even so, socialization goes with ‘acquiring the practice’ of conducting value discourses. The virtue of all members of a community must share is that of ‘observing the rules of the value discourse’ and observing the socio-political norms of which they have been authors (for as long as they remain valid). Thus discourse ethics is seen as the strongest version of Sittlichkeit. By this I mean (a) that, as far as legislation is concerned, one cannot opt for alternative kinds of Sittlichkeit; (b) that moral customs are unconditionally binding; (c) that custom is a moral authority, and in socio-political matters the exclusive authority. The authority of just procedure is an external authority in that it embodies the ethos of the community. Failure to observe the rules of discourse entails the ‘eye of others’ bringing shame to the transgressor. Yet value discourse is the only external authority of socio-political decision-making which cannot become the authority of domination, for it is the authority par excellence which excludes domination. Thus internal authority (conscience) cannot query and test the validity of this authority (in socio-political legislation). Moral conscience cannot be other than the full internalization of the authority of socio-political decision-making. Of course, moral conscience not only pertains to matters of justice and injustice. It is invested in moral norms proper as well. But moral norms proper are either not constituted by discourse at all or are constituted by another type of discourse. I shall address this matter in chapter 6. Here it needs only to be stated that, since the ‘best possible sociopolitical world’ is the condition, though not the sufficient condition, of the ‘best possible moral world’, no moral norm can query the validity of just procedure. This being so, the conclusion lies at hand. If practical reason is about querying the authority of the universal maxim of dynamic justice and of value discourse in matters of socio-political legislation, such querying cannot be grounded in moral reasons. Such a query would constitute a moral transgression against the ‘human bond’ in general, and could only aim at a new form of domination.
The ethics of just procedure is the ethics of optimum freedom. It is not the ethics of absolute freedom. Absolute freedom, the deification of individuals qua individuals, is also the renunciation of all human bonds constituted by symmetric reciprocity. The idea of the absolute autonomy of the empirical person, the individual unrestricted in action and behaviour by any kind of authority, is not only a chimera, but also a dangerous chimera. Relative autonomy is the human condition.
It is appropriate now to return to the virtue of justice. The allegory of justice is the blindfolded woman, scales in one hand, sword in the other. The message of this allegory is clear: impartiality (objectivity) in judgement, retribution proportionate to the offence. The allegory is that of the formal concept of justice (as static justice). To what degree is this image relevant to the virtue of justice in our model?
I have stated above that, if just procedure has already taken root in a community, static justice is not only negated but also preserved. Nevertheless, action and judgement guided by the idea of just procedure cannot yet be subjected to the moral custom of procedure. In the latter case, Sittlichkeit (moral custom) is only in statu nascendi, and thus the observance of the norms of discourse ethics is still a matter of morality (Informed by conscience and not by any kind of external authority). Yet this distinction is relative in character, far more so than where pure moral maxims are to be observed. It is only a group of people that can derive their social norms by just procedure. As individual human beings we can observe the maxim ‘You should preserve your human dignity’, even if no one else in our environment does so, but we cannot observe the norm that we should legislate via value discourse if we cannot find any possible participants in this discourse who are similarly committed to legislation via just procedure. If a person observes the norms of value discourse while those around him do not, this person does not partake of a just socio-political procedure, but rather observes a moral norm (or maxim). What is Sittlichkeit (moral custom) within the in-group is collective morality in relation to the out-group. Even so, in a hostile environment where there are several social and political constraints (the power of public opinion included), the virtue of justice cannot be ‘cold’, and a kind of righteousness will be the prerequisite of being just. If just procedure has already taken root, a person can be just without being righteous. If this is not yet the case (or if it is the case, yet admits hostility and constraint), certain additional virtues are required. This is especially so if there are no partners to the discourse, and the observance of norms of discourse is motivated by ‘legislative conscience’ alone.
Thus we must analyse the virtue of justice in two consecutive steps: (1) after any given Time One, and (2) before and during any given Time One.
(1) In the process of (just) legislation justice need not be blindfolded for the sake of impartiality (objectivity), for the simple reason that all needs should be recognized from the outset, and equally so. ‘Impartiality’ is tantamount to the recognition of all needs (except those the satisfaction of which would involve the use of other people as mere means). The requirement that all needs should be recognized is not based on a presupposition of ignorance about these needs, or ignorance about who has what type of needs. All needs make their appearance as claims. They are public (they are made public by the claimants), and thus known. Further, impartiality (objectivity) does not require that people who claim satisfaction of their needs must first reflect upon these needs and reject ‘realistic’ or ‘unruly’ ones. If we should recognize all needs equally, this must be true of our own needs too. The kind of allegory of justice relevant here is similar to that depicted by Giotto: it gazes towards the future, it looks ahead. And no wonder, as here we are dealing with just sociopolitical procedure. The virtue pertaining to justice in our ‘original position’ is thus the recognition of all needs. This is indeed the virtue of impartiality (as objectivity), for it is forbidden to recognize one need more than another. Here again, the virtue of justice is a ‘cold’ virtue. It is natural to sympathize with one set of needs more than with another. We sympathize with certain needs because we share them more than others, understand them more than others, find them more valuable, and so on. However, in just socio-political procedure we must abstract from such likes and dislikes. In all other human relationships (e.g. personal attachments) we can value certain needs over others. In all other human relationships we can criticize the needs of others. But we have no right to criticize the needs of anyone if these needs register a claim relating to just socio-political procedure (except if the satisfaction of these needs involves the use of other people as mere means), because the full and equal recognition of all personal needs is the right of everyone engaging in this procedure. (The act of infringing a right cannot be a right.)
Needs do not enter the discourse as matters of the discourse (and obviously so, if all needs are equally recognized). People do not argue with their needs, but state their values (which can have affinity to their own need satisfaction, and to the need satisfaction of others). We know now that the discourse centres upon values. The proposition that equal recognition is due to all needs is tantamount to the one that equal recognition is due to all values. In the abstract case of an absolute ‘starting-point’ (at which no single norm, rule or law has yet been validated), no value is recognized as true. All are equally recognized in their capacity of making a truth claim. (Of course, the two universal values are recognized as true by every person.) Proportionate recognition is accorded to the various values in the process of discourse: the more that some particular values are proved false, the more will they be ‘phased out’ of recognition; the more that some are proved true, the more will they gain recognition.
If the just procedure of value discourse is part and parcel of Sittlichkeit, and if newcomers to the community (society) are thus socialized through ‘acquiring the practice’ of the value discourse, then no special skill, training, professional knowledge or exceptional gift is needed to practise such a discourse. Everyone is familiar with the rules, everyone has learned how to observe them, everyone should observe them, everyone can observe them. The ‘preservation’ of static justice in the dialectical ‘sublation’ (Aufhebung) of the same is tantamount to the preservation of the attitude of rationality of reason (in the dialectical ‘sublation’ of the same). I have mentioned that the ‘higher-order consensus’ itself indicates the preservation of the attitude of rationality of reason. It should now be added that discourse ethics as Sittlichkeit keeps rationality of reason in force. Discourse ethics is, so to speak, ‘taken for granted’. However, the maxim of discourse ethics is the universal maxim of dynamic justice, and dynamic justice presupposes, as well as activates, the attitude of rationality of intellect. Rationality of intellect (at least in its most sublime and adequate form) is argumentative reason. Thus, in discourse ethics rationality of intellect and rationality of reason merge. If ‘minding the norms and rules of my own integration’ is tantamount to making full use of the attitude of rationality of intellect, then this attitude is to be ‘taken for granted’. I have argued elsewhere that the attitude of rationality of intellect is usually suppressed in childhood, when questions such as ‘Why should I do this or that?’, ‘Why is this so and not otherwise?’ are rebuked by a sententious ‘Just because, and don’t ask silly questions.’ I have added that it is philosophy that takes these childish questions seriously, by answering them properly. What I have called ‘philosophical discourse’ is the discourse conducted around such ‘childish questions’.’ If rationality of intellect is taken for granted, if the childish questions are not rebuked, but taken up and answered continuously, we enter into a ‘philosophical discourse’. Nothing but our reason is required for participating in a philosophical discourse. We all have the capacity for logical thinking and judgement (both reflective and determinative judgement, as seen in chapter 3). The exercise of these abilities is all that is needed for philosophical discourse.
It seems odd, though it is true, that the way in which we exercise our mental abilities is also a moral matter, and an important one. In an environment where one should not ask ‘silly questions’, the use of rationality of intellect is regarded as a (moral) transgression. The decree of the Enlightenment that we should think for ourselves imposes a moral obligation on us. Kant referred to our ‘self-incurred’ tutelage, where the term ‘self-incurred’ entails a negative moral judgement. Discourse ethics obligates the members of the ‘community of argumentation’ to uphold the attitude of rationality of intellect, and this should be understood as a moral obligation. In short, practising rationality of intellect is seen here as a virtue: as the public virtue of any socio-political actor (legislator). The participant in the discourse is obliged to use the logic of argumentation in order to pass good judgements. This obligation entails mental discipline (self-discipline) on the part of the participants in the discourse. There is certainly no generally required moral virtue possible without discipline (self-discipline). As we are not all born with exactly the same degree of good moral sense, even if everyone is equally born with this good moral sense, the happiness ensuing from virtuous activity is not identical with the pleasure of drive reduction, and never can be. And there is nothing wrong with discipline (self-discipline) if it is not imposed by authorities of domination.
When legislation has already taken place, and a socio-political norm or rule (or law) has been validated, the formal concept of justice defines the virtue of justice. In other words, the norms and rules must be applied to every member of the community in question consistently and continuously. At this stage, good judgement as phronesis is the cognitive virtue of just action and judgement.
The cognitive virtue of good judgement appeared twice in my model of an incomplete ethico-political concept of justice: first, as inherent in the value discourse, and, secondly, as inherent in the application of already consensually accepted norms and rules. Although in both cases I referred to ‘good judgement’, I used the Aristotelian notion of phronesis only in the second case. It is easy to explain this difference. The type of judgement performed in value discourse is secondary judgement. We discuss values (value judgements, normative judgements, and the like), but we do not, and should not, discuss the needs (the motivations and the characters) of persons who claim the validity of values (norms).
However, if we apply the already validated norms and rules, our judgements will be primary (Initial) judgements. When and where the norm should be applied, to whom and how, as well as whether or not it applies to the case in question at all, are matters’ that can only be answered if the judgement takes into consideration motivations, needs and characters as far as these things are relevant to the application of the norm. Since Aristotle introduced the category of phronesis in terms of initial judgement, I too restrict the use of this notion to judgements of this kind.
If one of the norms and rules (laws) established by consensus is regarded as unjust by anyone, a new value discourse must take place, and a new process of ‘legislation application’ must begin.
What, then, are the virtues which constitute the virtue of justice’ following any Time One? They are, first, impartiality as radical tolerance (full recognition lent to all needs and thus to the ipseity of every person); secondly, the cognitive virtue of argument in having recourse to the universal values of the ‘higher-order consensus’ (rationality of intellect); thirdly, commitment to the values which have been proved true (acceptance of the authority of truth); and, fourthly, phronesis (the cognitive virtue of the application of norms and rules). With the exception of the virtue of impartiality as radical tolerance, all other constituents of the virtue of justice are cognitive in character.
I shall call the virtue of justice (with the above-enumerated constituents) ‘citizen’s virtue’. I shall call all those practising and displaying this virtue, in the Aristotelian manner, ‘good citizens’.
For a moment, let us imagine ‘Universal Time One’, the pluralistic cultural universe where each culture is tied to every other culture by the bonds of symmetric reciprocity. In such an (imaginary) Universal Time One, all human beings would, to an equal degree, be good citizens. They would all share the virtue of justice (citizen’s virtue). But in respect of all other virtues they would be different. And in this context the word ‘different’ involves two entirely distinct problems.
First, communities, groups, different forms of the body politic, and different cultures – all these entitles, in a just procedure, engender not only different norms and rules (laws), but also norms, rules and laws with different widths of validity. The laws of a body politic are legitimized by all its citizens (all citizens participate in the value discourse), and this is why such laws apply to all citizens of that body politic. One particular community (within this body politic) legitimizes certain norms and rules as pertaining to that community, and these are valid for, and applied to, the members of that legitimizing community. Going to the other extreme, commonly shared rules relating to the essential cluster ‘humankind’ should be generated by all members of humankind, and so their validity applies to all human beings (as members of the overarching cluster). Only the norms, rules and laws which have been generated (validated) by all human beings are valid for, and should be applied to, all human beings. If all norms and rules are generated and validated by discourse, then all the norms and rules of any particular body politic, culture, group or community should be unconditionally recognized as just by the members of all other communities to whom the same norms do not apply. Within one particular community of argumentation, values are to be recognized in proportion to their truth. Among different communities of argumentation, such recognition should not be given in a proportionate manner, but, as I have said, should be given unconditionally, for it must be presupposed that the result of any value discourse is the establishment of norms and rules that actualize true values. The plurality of ways of life includes a commitment to the plurality of socio-political norms (rules). Mutual recognition should be lent to all of them. Clearly, any particular social norm or rule (law) can enjoin us to practise other virtues too, not just the commonly shared ‘citizen’s virtue’. It is possible that the ‘good citizen’ of a way of life may display virtues above and beyond the ‘citizen’s virtue’. Just as it is possible that he or she may not: this depends on the particular way of life. The ‘citizen’s virtue’ is simply the virtue all good citizens must share.
Secondly, the virtue sufficient to keep the just procedure alive does not require great moral effort, self-sacrifice, or supererogation, nor does it require a sublime moral character. The virtue of justice is a ‘minimal virtue’. A world populated with ‘good citizens’, without simultaneously being populated With good (righteous) persons, does not seem very attractive. At least, it does not seem attractive to me. However, since it has been assumed that the ‘best possible socio-political world’ is the condition of the ‘best possible moral world’, one can hold the rational belief that, if all members of the human race met the criterion of being good citizens, there would be far more righteous people than under any other circumstances. This conclusion has already been drawn in the analysis of value discourse. Let us suppose that at the end of the discussion a few values have proved to be true. Let us further suppose that each of these values supports a preference for the satisfaction of certain needs as against the satisfaction of other needs. Let us also suppose that the problem to be solved or the objective to be achieved is such that no norm or rule (law) can guarantee the simultaneous satisfaction of all needs that are backed by a true value claim, or at least not the equal and simultaneous satisfaction of all of them. In such a case, or so we may believe, consensus, as true consensus, is excluded. How then can any norm or rule be set? The answer could be that no norm or rule should be established at all, or that the matter should be settled by negotiation, and thus by compromise. But what if a lack of regulation impedes the achievement of a goal or the solution of a problem vital for the life and freedom of everyone concerned? Is it then essential to resort to negotiation and compromise? I do not think so. It can be rationally assumed that some of the participants in the discourse will be not merely just, but also righteous. If, for example, three sets of needs cannot be satisfied simultaneously, or not to the same extent, even though all. three parties back their claim with equally true values, one party to the discourse can still say, ‘Let us satisfy the needs of others first! Let us give them priority! We have a right to satisfaction equivalent to that of these other sets of needs, but we resign this right of our own free will.’ It would be just if all three claims were equally met. However, it is not only injustice that overrules justice, but goodness as well. True enough. a rule legitimized in this way would not be completely just at the time of legitimization. It would not be solely the result of a just procedure but also the result of the gesture of goodness. But it would still be consensually accepted, and this consensus would still be a true consensus. Constraint and power would be absent. Only if the power of argument is complemented by the power of charity can just procedure work in all possible cases, and without fall. But I do not think that such a proposal is guilty of excessive optimism concerning the reserves of human nature. The gesture of goodness is an everyday phenomenon, and. when an emergency arises in day-to-day life, many people, including some who are not even righteous, are ready to make such a gesture. The controversial case briefly discussed above concerns such a ‘state of emergency’. And these things may be said before we even remember that respect is due to human goodness; that if people, in a state of emergency, resign one of their rights for the sake of charity, the respect bestowed upon them will compensate them for any loss. The vote of confidence granted the human race was thus neither excessive nor premature.
(2) The virtue of justice before and during any ‘Time One’ must encompass all elements of the virtue of justice after Time One. If the idea of just procedure regulates someone’s actions and judgements, this person is committed to act and judge as if just procedure were already the case. This is so because we devalidate norms and rules, from the attitude of rationality of intellect, by observing the norm (value) we counterpose to those already existing. However, since just procedure is only an idea prior to at least a single Time One, and has not, during a single Time One, become Sittlichkeit (moral custom), the practice of the virtue of justice repudes the mobilization of certain additional moral resources. These resources consist of so many additional virtues. Thus we must attribute certain additional virtues to the constituents of citizen’s virtue before and during Time One. More than a ‘minimum morality’ is required from a ‘good citizen’ before and during Time One. And yet the ‘good citizen’ is not identical with the good (righteous) person before and during Time One either. Only that degree of additional virtue is required from ‘good citizens’ the practice and display of which makes them act and judge as if lust procedure were the case, when it is not.
It is the citizen’s virtue to recognize all needs equally, except those the satisfaction of which involves the use of other people as mere means. If the citizen lives in a world where not even all needs are recognized (let alone equally), yet where those needs the satisfaction of which involves the use of other people as mere means are recognized, the virtue of the ‘original position’ cannot be a ‘cold’ virtue, and the cognitive aspect of the virtue must be very demanding.
Needs are not equally recognized because, first, owing to the norms and rules of a particular society, they receive unequal recognition, and, secondly, because certain needs are not expressed, or not expressed strongly enough. People may not be able to express needs owing to legal constraints, lack of education, lack of organization or lack of access to the public sphere. The good citizen can help such people by speaking on their behalf. But, if the good citizen does no more than this, he or she falls to demonstrate the citizen’s virtue proper. One can display citizen’s virtue by helping the needy speak, by entering into discourse with them, by discovering their needs, their values, by helping them engage the public sphere on their own. The good citizen does not substitute his or her values for those of persons and groups whose needs are in want of recognition, or are not fully recognized, but rather displays solidarity with them. The virtue of solidarity is indeed one of the (additional) virtues of the good citizen (before and during Time One). Solidarity is due all persons, and groups of persons, whose needs are not recognized, or not fully recognized. The virtue of solidarity is not the virtue of charity (of the righteous person). Solidarity does not entail the gesture ‘Here I am, and I will satisfy your unrecognized need.’ Solidarity has nothing to do with need satisfaction. It is the virtue invested in need recognition (and value recognition). But the virtue of solidarity is not simply a ‘good wish’ either, nor is it restricted to the recognition of needs and values on the part of those who display solidarity. It is an active virtue. The person who displays solidarity makes his or her best effort (everything which is in his or her power) to ensure that the needs and values in question are recognized by all. Solidarity is a warm virtue. Enthusiasm invested in the idea of just procedure is the precondition of such solidarity.
The good citizen must criticize all needs the satisfaction of which involves the use of other men and women as mere means. Such criticism is very demanding, and requires much circumspection. One must learn to distinguish between needs the satisfaction of which involves the use of others as mere means in principle, and those which do not necessarily imply such use in principle, but do so under contemporary social circumstances. This distinction is very important, for the latter cluster of needs must be recognized, even if their current mode of satisfaction should be rejected. In this case, bad judgement invites disaster, for it excludes the actualization of just procedure at the outset. The idea of dictatorship over needs, or, on a milder note, the idea of the paternalistic imputation of needs, will then be substituted for the idea of just procedure. Good judgement must be rooted in a virtue. I shall term this virtue radical tolerance. The recognition of all needs the satisfaction of which does not involve the use of others as mere means in principle must be practised. And it can be practised by the virtue (attitude) of radical tolerance. Only needs the satisfaction of which necessarily implies domination must be excluded from recognition. Not even the quantified needs for having or for fame should be excluded from recognition, though we must reject the idea of their satisfaction via domination. Of course, no citizen forgoes his or her right, as a private person, to sympathize with certain needs and to loathe others, just as no one forgoes the right to criticize needs he or she loathes in personal relationships. But as citizens we must recognize them all, and equally so.
The good citizen is committed to value discourse as the just procedure. She or he makes the claim that norms and rules should be validated by the authorization of everyone concerned, by consensus. But before Time One the good citizen must assume that no norm, rule or law has been validated by just procedure. It must therefore be assumed that every consensus is false, apart from the consensus about the validity of the universal values (freedom and life). In a further specification, if the citizen sides with the opposition to the social regime, he or she must also assume that the norms and rules guiding the actions of the opposition are also based on false consensus. The virtual starting-point for becoming a good citizen is the Cartesian moment. By this I mean that every citizen, as a single person, as a single cogito, clarifies all criteria of ‘true consensus’ for himself or herself with the resolution to check the ‘preliminary consensus’ by those criteria. This person must of course invite others to share the Cartesian moment, in order to devalidate the false consensus and begin formulating a true one via just procedure. These ‘others’ may be very few. It can even happen that there are no ‘others’ in sight. The good citizen can be a solitary person, even if she or he does not take pride in this solitude because of the fact that the citizen’s idea is value discourse, and being a solitary person means to fall short of observing this idea. However, under no circumstances does a good citizen resign autonomy as a moral being by accepting false consensus in order to ‘participate’. The good citizen is also a dissenter. Such dissent is practised for the sake of true consensus.
Steadfast criticism of all needs the satisfaction of which involves domination, and rejection of all kinds of false consensus, are two sides of the same coin. False consensus always entails domination, for it entails constraint. Whether there is awareness of it or not, constraint is present in all forms of false consensus. We are aware of the presence of domination if power restrains us from outside; we are generally unaware of such a presence if power is internalized. Power can be internalized in many ways. What I have called the ‘Cartesian moment’ is a process whereby we rid ourselves of internalized power.
To challenge external domination and internalized power, to reject all kinds of false consensus, to be a dissenter, requires two additional virtues. One is the oldest virtue of philosophy, the Socratic practice in self-knowledge. But introspection is not sufficient to achieve self-knowledge proper. People come to know themselves from their own deeds, and from looking into the ‘mirror’ of other selves. One learns, via the interplay of introspection and action, the extent to which one has internalized power, as well as the extent to which one can expel the ‘power inside’. The second additional virtue is the old virtue of democracy: civic courage. It is civic courage that makes us speak our mind amidst false consensus, and act in harmony with our beliefs amidst hostility and discouragement. Civic courage is not a display of daring but the actualization of moral autonomy in the public domain.
At this point I reiterate the constituents of citizen’s virtue after Time One: impartiality as radical tolerance; the cognitive virtue of arguing whilst having recourse to the universal values of the ‘higher-order consensus'; acceptance of the authority of truth (true values); phronesis. As mentioned, all except the first are cognitive in character. Let me now turn to the constituents of citizen’s virtue before and during Time One. The same virtues are required here, but all virtues except for the second (arguing whilst having recourse to the universal value of the ‘higher-order consensus') are to be practised in different ways. Moreover, only this second virtue is merely cognitive in character. All the other virtues encompass enthusiasm as well. Thus the virtues I have referred to as ‘additional’ virtues turn out not to be ‘additional’ at all. They are necessary in order to practise citizen’s virtue before and during Time One. In solidarity, we claim recognition for as yet unrecognized needs, and we act so that these needs can be and are voiced. In self-knowledge, we rid ourselves of the power ‘within our soul’, and by doing so prepare the ground for the practice of the second (cognitive) virtue. In civic courage, we challenge domination and all kinds of false consensus, for otherwise no true consensus could ever be achieved.
I did not conjure ‘civic virtue’ out of the model of the best possible moral world or the idea of just procedure. All the civic virtues which are part and parcel of the ‘good citizen’ are conspicuously present in the democratic imagination. They are ‘popular virtues’, at least in societies of strong democratic tradition.’ Whether or not we practise them, these virtues always ‘appeal’ to us. The goodness of the citizen does not require commentary; everyone recognizes, halls, respects it. There are even some who imitate it.
At the beginning of this chapter I remarked that all ethico-political concepts of justice must be ‘backed’ by the actual ethics, morality and practices of people, even if these people are few in number. If the ethico-political concept of justice designs the utopia of the best possible moral world, the theory will be ‘backed’ by people who, even in the worst possible world, prefer to suffer injustice than to commit it. The incomplete ethico-political concept of justice under discussion is more modest. It makes a case not for the best possible moral world, nor even for a ‘just society’, but for the best possible socio-political world, which is not just but which operates by just procedure. By this I mean that norms and rules are validated as the result of value discourse guided by the universal maxim of dynamic justice. All the elements of just procedure have been related to, or deduced from, traditional and contemporary just procedures, such as the formal concept of justice, the ‘golden rule’ and dynamic justice, having recourse to the values of freedom and life, and discourse as the means of settling socio-political conflicts. The entire model is but the rearrangement of the above-mentioned traditional and contemporary practices, and, I hope, not an arbitrary rearrangement. It is the only possible rearrangement involving all the constituents of ‘justice’, if humankind is thought to be the essential (overarching) social cluster, and if human relations are relations of symmetric reciprocity.
These two qualifications embody my value commitments. In a way, these commitments are arbitrary, for I do not share them with everyone, yet they are also non-arbitrary, for I share them with many. Of course, if I performed the transcendental deduction, and presented my model as ‘truth’ par excellence, it would have a ring of greater plausibility. Yet my project of an incomplete ethico-political concept of justice, in which certain substantive values have the status of axioms (to avoid mere formalism), is a very different commitment. It is not possible for me to ignore empirical motivations. Empirical motivations can be needs, wants, desires, passions, insights, interests, and the like. Radical needs can be understood as motivating forces. However, they can only produce the commitment to an objective (the transcendence of the world of superordination and subordination, the world of domination), not the Procedure itself. Just procedure cannot be motivated by radical needs, for these needs can be blind and can express themselves in irrational gestures. Just procedure is rational. But this procedure cannot be motivated by rational insight either, for there are different kinds of rational insight (attitude), and the decision to opt for a particular one (for example, rationality of intellect) must be motivated by something other than rationality. A commitment to the universal values cannot be termed an empirical motivating force either, because people must first be motivated in order to accept such a commitment. Who can be so motivated as to accept this commitment? Only the ‘good citizen’, whose main motive forces are the citizen’s virtues. It is in these virtues that radical needs and rational insights merge. It is in citizen’s virtues that radical needs and rationality of intellect can merge. Thus ‘good citizens’ are those people who ‘back’ the incomplete ethico-political concept of justice. The good citizen backs, but does not guarantee, the ‘best possible socio-political world’. And because the good citizen does not guarantee, but only supports, the model of such a world, such a world is possible, but only possible. It is not probable. However, good citizens not only back, but also guarantee, the incomplete ethico-political concept of justice.
Michael WaIzer writes, ‘The self-respecting citizen is an autonomous person. I don’t mean autonomous in the world; I don’t know what that would involve. He is autonomous in his community, a free and responsible agent, a participating member. I think of him as the ideal subject of a theory of justice.’  And so do I.