Constructivism: a plausible alternative to foundationalism of justice? ¹

MARÍA CRISTINA PÉREZ VENEGAS²

CONTENT: I. Introduction. II. Constructivism posed as an alternative to foundationalism. III. Reflective equilibrium as a descriptive method.

Resumen. En este artículo se aborda la cuestión sobre si el constructivismo puede considerarse una alternativa plausible frente al fundacionalismo como estrategia de justificación de la justicia. En la primera sección se aborda el asunto de manera general, con un enfoque principal en las propuestas constructivistas de John Rawls y Thomas Scanlon, arguyendo que fallan en su intento de ofrecer una forma alternativa de justificación de verdades morales. En una segunda sección, se brinda atención a la figura del equilibrio reflexivo como un ejemplo para ilustrar la posible insuficiencia del constructivismo como herramienta de justificación y no solamente de descripción en el estudio de la justicia.

Palabras clave: John Rawls, constructivismo, fundacionalismo, equilibrio reflexivo.

Abstract. This paper addresses the question on whether constructivism can be a plausible alternative to foundationalism as a justificatory strategy for justice. In the first section the question is approached in general terms, centring mainly in John Rawls and Thomas Scanlon’s account of constructivism, and it is suggested they fail to offer a satisfactory account of an alternative justification of moral truth. In a second section attention is drawn to reflective equilibrium as a concrete example tackled to shed light on the insufficiency of constructivism to serve as a justificatory rather than merely descriptive tool for the study of justice.

Keywords: John Rawls, constructivism, foundationalism, reflective equilibrium.

I ] Introduction

In this paper I will address the question on whether the constructivist conception of justice offers a plausible alternative to more traditional (foundationalist) justificatory strategies. The relevance of it for the legal world would be circumscribed in Jurisprudence and Constitutional Law, as the conception of justice underlies the final order thoughts that enable jurists to define or argue for a given solution to concrete complex cases in which Law ceases to wide interpretation.

Considering the nature of this work and its length constraints, I will focus in two quite specific aspects of the contemporary disputes about justice, centring –as it can be foreseen– in the account of constructivism of former Harvard University Professor (and most celebrated and influential Political Philosopher of our times) John Rawls, as well as in some views on the matter held by current Harvard University Professor and renowned Moral Philosopher, Thomas M. Scanlon.

In the first section of this text I will discuss that constructivism is in general not a plausible alternative to foundationalism, as it fails to serve satisfactorily as a justificatory mechanism of justice as a moral truth. In a second section of this work, to look at a concrete example, I will approach a particular justificatory figure within the constructivist doctrine: that of reflective equilibrium as propounded by John Rawls. For both sections I will suggest that constructivism derives in an unsatisfactory result when pursuing to justify moral truth.

II ] Constructivism posed as an alternative to foundationalism

My aim is to suggest that in fact constructivism does not offer a plausible alternative, which does not imply that constructivist propositions are implausible in themselves, but that they simply do not supplant the foundationalist stances in their quest to state undeniable truths to depart from in order to develop an objective theory of justice.

There are actually different matters that can be discussed concerning the plausibility or implausibility of constructivist theories themselves, such as the conflict alleged by communitarians that departing from a mental idealized agreement, which has never actually occurred, is not valid, as theory has to be rooted in praxis from the start to be realistic.³ Such kind of argumentation has no place within this text, as this one will only address constructivism as whether a plausible alternative justificatory strategy, to more traditional stances to justify justice.

For the sake of clarity, it will be useful to begin by outlining the essential characteristics of foundationalism and the account of constructivism subject to discussion in this work.

1. Foundationalism

In his book, Political Constructivism, Peri Roberts explains, [a] key question for justification is to ask whether [a] regress of questions ever comes to an end or are our reasons subject to an infinite regress of questions and answers and questions again. Justification is usually taken to consist in identifying the stopping point, or foundation, of such a regress.⁴ In that sense, foundationalism will stand to solve the regress dilemma by positing that there are certain beliefs that need no justification, which the rational agent can use as a base for an objective theory.

According to the definition given in the The Stanford Encyclopedia of Philosophy (Summer 2010), a foundationalist view will uphold that all knowledge and justified belief rest ultimately on a foundation of non-inferential knowledge.⁵

Specifically in the field of political theory, Professor Arthur Ripstein highlights that [f]oundationalist political theories attempt to justify political institutions without presupposing any political considerations.⁶ He means that political institutions are not ultimately the product of contingent agreement and organization attempts between diverse independent individuals. A foundationalist view then would attempt to ground its normative guidance on indisputable features of the human situation.⁷ These indisputable features are attributed to a human nature, which implicates that every single human being, regardless of his identity, context and political community, shares them.

The outlined approach, in general, entails the justification of principles of justice and the rules derived from them, as universal, seen from either an external or internal view of the subject, be it a political community or a legal system.

2. Constructivism

I will explore constructivism in a subtle wider manner, as this is the proposition I am assessing as whether a plausible alternative to general foundationalism. In broad lines, a constructivist justificatory strategy consists on the affirmation that if there are moral truths, these are determined by an idealized process of rational deliberation, choice or agreement.⁸ In the arena of contemporary political theory, John Rawls came through with a famous account of constructivism. In his 1993 work, Political Liberalism, Rawls employs constructivism to justify principles of justice, which are determined in order to reach an overlapping consensus given the pluralism of liberal societies.⁹

The account of constructivism that John Rawls provides nourishes from Immanuel Kant’s thought. In Kantian Constructivism in Moral Theory, the former foregrounds the essence of Kantian constructivism as follows:

What distinguishes the Kantian form of constructivism is essentially this: it specifies a particular conception of the person as an element in a reasonable procedure of construction, the outcome of which determines the content of the first principles of justice. Expressed another way: this kind of view sets up a certain procedure of construction which answers to certain reasonable requirements, and within this procedure persons characterized as rational agents of construction specify, through their agreements, the first principles of justice.¹⁰

As it can be noticed, this version of constructivism requires rational agents whose rationality enables them to arrive to principles as a product of deliberation or agreement. In that sense, the definition given for constructivism by The Stanford Encyclopedia of Philosophy (Spring 2015) can be brought up to indicate what I am referring to in this essay: constructivism is the view that the moral principles we ought to accept or follow are the ones that agents would agree to or endorse were they to engage in a hypothetical or idealized process of rational deliberation.¹¹

This definition also approximates to Professor Thomas Scanlon’s own account of contractualism, which he asseverates can be stated as follows: An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of behaviour which no one could reasonably reject as a basis for informed, unforced general agreement.¹² Further on, he affirms, [t]he only relevant pressure for agreement comes from the desire to find and agree on principles which no one who had this desire could reasonably reject.¹³ Considering the way in which Scanlon’s account of contractualism coincides with the above given definition for constructivism, I could say that the proposition I am referring to herein could also be called contractarian constructivism, to use Onora O’Neil’s terminology.¹⁴

3. Implausibility of constructivism as an alternative to foundationalism

Considering the above outlined concepts, the answer to the question discussed in this paper is that constructivism is not plausible enough as an alternative to foundationalist justificatory strategies. To explain this negative answer the main aspect to stress is that the question poses constructivism as aiming to be an alternative justificatory strategy to foundationalism, which implies it should constitute a better justification of the exact same facts. If foundationalism –in the realm of Jurisprudence and Political Thought– aims to uphold the truthfulness and universality of certain normative assertions about justice, then for any theory to be an alternative justificatory strategy, it should be pursuing to justify the truthfulness and universality of the indicated assertions as well. Otherwise, we would not enquire whether it offers an alternative justification, but we would ask instead if it invalidates what is asserted by the stance we are debating with.

Now, if constructivism supposes, as remarked before, that principles of justice can be justified by tracing them back to a mental idealized agreement between rational individuals, any outcome that is presumably (implicitly) agreed given the absence of complaint, will be justified, so any principles of any society could be this way justified only from an immanent perspective, as they are fictionally constructed by some sort of overlapping consensus (only) between the agents that belong to a certain community or legal system.

Foundationalist positions, by contrast, would try to determine which principles (implying substantive normative formulations) are basic beliefs not subject of further justification, which will derive in objective, true, universal guiding rules for political and legal action from an inner and external perspective regarding any community (if this is a plausible attempt is a matter of another debate).

So if the constructivist stance is only internally coherent and cannot be upheld to justify the applicability of certain principles of justice in a universal manner, it fails to be an alternative justification to foundationalism. The limitation of constructivism as only internally coherent derives from the fact that its justificatory scheme is mainly procedural. Similar to what has been said by Wolfgang Kersting regarding contractualism: constructivist theories follow the development of the idea that social need for legitimacy cannot be underpinned by a natural axiological objective order.¹⁵

In line with what Bertrand Guillarme has written, from the constructivist view, objectivity of justice does not depend on a hypothesis of some reality independent from ourselves that should be described, but instead, the objectivity it can bear proceeds from the fact that it is the result of certain procedure,¹⁶ but as the Argentinean professor Carlos Massini points out, the sole coherence of a rational procedure, with no reference to strongly objective data (referring to a reality that transcends our own thoughts) does not reach the necessary level of objectivity as to apply to every society in every context; specially talking about political principles, which are destined to oblige everyone (from a typical foundational justification), including those that have not participated in its supposed elaboration.¹⁷

As repeatedly stated, the rules and principles constructivism desires to justify are those that derive from a process of deliberation between diverse rational agents willing to reach an agreement. Conceding –for the sake of the constrained ends of this paper– that such mental idealized agreement is plausible, an external observer that disagrees with the rules and principles derived from the referred process has no word of argument against it if not assuming a more foundationalist position. The consequence for those who do not wish to drop mere constructivism, has been to reduce it as applicable only to certain delimited legal systems framed in a specific culture and historical time. This somehow implicates deeming all other communities as formed by agents that are not rational enough (in a specific Kantian understanding of rationality), but that would be a different discussion.

As indicated, the fact that a constructivist view requires characteristics that make it not necessarily applicable to all societies in any historical and cultural context, is actually acknowledged by the proponents of constructivists stances themselves, such as John Rawls, who admits that his theory of justice has been thought of only as applicable to contemporary democratic societies economically developed, and more concretely, to the North-American society.¹⁸ Thomas Scanlon, on his side, admits that dependence on convention introduces a degree of cultural relativity.¹⁹

4. Relevance of the question

The position expressed herein is relevant in the following way: if the plausibility of political constructivism in itself is advanced, the defender must be aware that she is waiving the feasibility to reproach political and legal atrocities from an external perspective; so that if we reprobate, for example, the legal institutionalization of slavery or of inferiority of women, there are in principle no argumentative grounds within constructivism to allege that those establishments should change as long as the participants of such cultures do not to complain. It could be argued that the claim persists even if one is persuaded to affirm that people involved are not truly able to complain, as to do it one would unavoidably upraise foundationalist arguments to explain the concern for the question, as constructivism lacks guarantee of substantive content.

This outcome easily disappoints those who look for a complete system of justification in constructivism, as those realities will continue to seem wrong to them (as external observers), but they will do an effort to overcome the nuisance and adopt a neutral non-intervening attitude towards such phenomena.

I believe that there actually are ways of positing the wrongness of some extended practices in diverse legal systems, addressing case-by-case and engaging in serious debate. By the approval or disapproval of political and legal practices we can grasp general principles that are presented to us in reality in such casuistic manner. If the accounts of foundationalism do not seem plausible now-a-days with the discredit of ontology and metaphysics, still our perception of reality’s suggestion that there can be an external plausible way of criticism of legal systems and politics, stays. Overlooking this impression by building an internal coherent theory of local principles of justice does not make it disappear, so in some way adopting constructivism is only avoiding a question posed by our experience of reality as social intellectual beings.

III ] Reflective equilibrium as a descriptive method

Moving forward to pose an illustrative example of a concrete figure for justification of justice within the most plausible constructivist grounds, I will draw attention to the method of reflective equilibrium as proffered by John Rawls.

Professor Thomas Michael Scanlon sets down in his article “Rawls on Justification”²⁰ that there are three ideas of justification in the thought of the named thinker: these are the method of reflective equilibrium, the derivation of principles in the original position, and the idea of public reason.²¹ I will discuss the idea of reflective equilibrium as understood by T. M. Scanlon. My aim is to ponder if this method of justification propounded by John Rawls is rather descriptive or deliberative, and outlining the implications of either outcome. I will rely on Professor Scanlon’s account of reflective equilibrium because it is him who has clearly drawn the possible differentiation between what he calls a descriptive interpretation and a deliberative interpretation of such idea of justification.

Now I will provide a brief account of Scanlon’s view on reflective equilibrium [specifically in his paper “Rawls on Justification” included in the Cambridge Companion to Rawls (2002)], proceeding then to proffer my own view regarding the question posed in previous lines: I am persuaded to deem that John Rawls did not mean his method to pursue mere descriptive ends, but that nevertheless, with his particular proposition of reflective equilibrium, he in fact reaches no higher objectives than those of description.

1. Reflective Equilibrium in the view of Thomas Scanlon

According to T. M. Scanlon, one natural interpretation of reflective equilibrium implicates that principles are justified by their ability to explain those judgments in which we feel the highest degree of confidence.²² This method of justification proceeds –as he observes– in three stages: 1) Identifying a set of considered judgments about justice (while informed and thinking carefully), 2) Formulating principles that would account for those judgements, 3) Going back and forth adjusting judgments and principles until one reaches a set of both that have no conflict with one another.²³

Further on, after recalling certain quotes of Rawls’s texts, Thomas Scanlon points out that this process of reflective equilibrium can be embraced as either a descriptive or a deliberative method. He will refer to these as the descriptive interpretation and the deliberative interpretation, correspondingly. The descriptive interpretation conceives reflective equilibrium as aiming at characterizing the conception of justice held by a certain person or group, while the deliberative interpretation regards it as a method for figuring out what to believe about justice.²⁴

What is outstanding about the former differentiation between interpretations of the reflective equilibrium, is that when adopting the descriptive interpretation, the method forsakes its justificatory character, i.e. it is no longer useful as a tool to justify principles or beliefs about justice, but it rather only outlines the way in which a moral agent proceeds when pursuing justification. In words of the author: it seems to be a way of arriving at accurate portraits of various possible conceptions of justice, which we may then choose between using some other method.²⁵

Furthermore, as the author of “Rawls in Justification” explains, the considered judgements that have a role in reflective equilibrium should fulfil two sets of conditions: first, shortly, the agent should be aware of the relevant facts, be able to concentrate and not stand to gain or lose something; second, the agent should feel mostly certain about the judgment, which should be stable in time and met intuitively.

After stating his view on reflective equilibrium and both descriptive and deliberative interpretations of it, Thomas Scanlon –in the first section of his paper– does not take a definitive stance on which interpretation can be regarded as correct, but he does establish that between them, the deliberative interpretation is primary, and it is so because even if we have descriptive aims to collect data and draw conclusions on moral reasoning, we first need someone trying to determine what is right to believe, so that he or she can be observed.

2. Commentary on the descriptive and justificatory aspects of reflective equilibrium

Turning now to my perspective in relation to what is posed by Professor Scanlon on reflective equilibrium, I must say I consider that along with revising the literality of what has been written by Rawls, it is important to strive not only to build an idea of what the thinker is affirming, but also an idea of how it can be reasonable for oneself to agree with it. This will avoid rejecting propositions by dealing with them superficially using any counterargument that one can think of in principle regarding isolated affirmations within a text. But once that personal perspective has been outlined, one ought to go back again further to what has been said by the thinker to verify if one’s account of the matter (considered reasonable) can be actually attributed to its proponent. In such a way I shall proceed to the extent that it is possible within the constraints of this text’s length.

I am inclined to believe that John Rawls, when elaborating his proposition of reflective equilibrium, would start by gathering data as an observer, collecting facts as material to draw conclusions and elaborate his theory. This could be the source of the descriptive aspect found in the method of reflective equilibrium. I would be tempted to think it is not that in some cases Rawls seems to pose the method as descriptive (and therefore not justificatory) and in other cases as deliberative. But rather that there will be moments in which he is describing the way he observes agents carry out an exercise of moral reasoning, and others when he is already propounding his theory on how a way of reasoning can be plausible (indicating under which characteristics it would be so), in order to operate as a valid justificatory method for principles of justice.

In his paper “The independence of Moral Theory”, Rawls asserts that:

One thinks of the moral theorist as an observer, so to speak, who seeks to set out the structure of other people’s moral conceptions and attitudes. Because it seems likely that people hold different conceptions, and the structure of these conceptions is in any case hard to delineate, we can best proceed by studying the main conceptions found in the tradition of moral philosophy and in leading representative writers, including their discussions of particular moral and social issues. We may also include ourselves, since we are ready to hand for detailed self-examination.²⁶

As it is showed, he considers that in order to produce moral philosophy, one first needs to collect data regarding which moral conceptions exist and how they are reached or encountered by others and even oneself. But then one may suppose that is not the end of the question –specifically thinking of reflective equilibrium– as the proposition does not finish with depictions of various ways of reasoning, but he goes on to determine which of those diverse ways will actually boost a proper justification of beliefs. It is clear then, as suggested by Scanlon’s remarks in section two of his paper addressed herein, that Rawls’s aspiration goes beyond offering a descriptive method with respect to moral capacity, given that it is actually the rationale of reflective equilibrium that in some aspect legitimizes the original position; Thomas Scanlon affirms that [a]s Rawls makes clear in A Theory of Justice, the structure of the original position is itself justified by employing the method of reflective equilibrium.²⁷

However, it may be observed that the distinction between the descriptive and justificatory (what Scanlon called deliberative) aspects of the method Rawls formulates is unduly subtle when taking into account the theorist’s position as to moral objective truths. As John Mikhail explains:

According to Rawls, the moral theorist attempting to solve the problems of empirical and normative adequacy, as he has defined them, is neither forced to assume that there is one authoritative or correct moral conception, nor to presuppose the existence of objective moral truths. On the contrary, she may –and, Rawls says, she should– set aside such notoriously difficult problems as the objective or ultimate truth of a given set of moral judgments or moral principles. Preoccupation with these issues, he writes, ‘may get in the way and block the path to advance’.²⁸

When considering that the quest for objective substantive moral truths is set aside for being it problematic in order to advance in some way, the only path left is to observe and describe how persons actually think in order to reach certain practical effects. In that way, the justificatory aspect of the reflective equilibrium will not entirely implicate a determination of what is actually right to believe about justice, but rather what seems reasonable to believe deeming the way agents generally proceed in order to draw conclusions of such a nature. Thereby, when Rawls specifies sets of conditions for reflective equilibrium to be a source of justification, one cannot assume that he supposed those conditions would warrant the definitive righteousness of the beliefs at stake, but just an approximation to what most people will consider reasonable to believe. This is in fact hardly differentiable from a pure descriptive aim of the method, as it just indicates the characteristics with which people will generally consider some moral belief to be justified, but does not really get to the question on whether it actually is so.

The implication of the above-sketched conclusion that reflective equilibrium is ultimately descriptive, is precisely that such formula fails to be a method for justification. This sentence would be in line with Scanlon’s averment that in the descriptive interpretation, the method of reflective equilibrium does not seem to be a method of justification (or a search for justification) at all, especially when it is applied to other people’ s considered judgments. Rather, it seems to be a way of arriving at accurate portraits of various possible conceptions of justice, which we may then choose between using some other method.²⁹

Accordingly, if we take into account the suggestion that Rawls’s objective is to make of reflective equilibrium a justification method beyond mere useful description, it would be my stance that taken the philosopher’s thought globally as a constructivist, he does not satisfactorily reach such goal, as long as he is not willing to declare there are moral objective truths about justice that would be met with a given approach. Here I will finally bring up again Scanlon’s averment that a deliberative element is primary in reflective equilibrium, as one will depend on an agent’s actual aim to discover what would be right to believe. Ignoring the possibility of drawing near what would actually and objectively be right to conclude, leaves the method in the main realm of description, and in need of some other underlying formula of actual justification.

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Fecha de recepción: 17 de noviembre de 2015

Fecha de aprobación: 26 de abril de 2016