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Foundations in Kantian Constructivism necessary and necessarily metaphysical Dr.

. Kerstin Budde Associate Lecturer Cardiff University, School of European Studies University of Sheffield, Department of Philosophy Email: BuddeK@cf.ac.uk kerstinbudde@hotmail.com

Abstract: Kantian Constructivism, first developed by John Rawls, has been seen by many as a new and fruitful way of justifying liberal and democratic institutions. The key claim of Kantian constructivism as a justificatory theory is that it can convincingly argue for the objectivity or reasonableness of certain norms and institutions, thus avoiding relativism, without relying on any contested foundations. Instead the claim of "construction" is to start from uncontested premises and to construct via a reasonable procedure principle all could agree on. This paper will argue that despite this aim of constructivism, the arguments of Kantian constructivists imply certain foundational premises. I argue that this is not just an unfortunate mistake of some Kantian Constructivists, but that foundations or foundational premises are necessarily a part of constructivist argument. I then further argue that the foundations used in Kantian constructivism are most plausibly understood as metaphysical foundations, and that indeed they need to be metaphysical to account for the objectivity of the norms 'constructed'. 1. Introduction Kantian Constructivism, first developed by John Rawls, has been seen by many as a new and fruitful way of justifying liberal and democratic institutions. The key claim of Kantian constructivism as a justificatory theory is that it can convincingly argue for the objectivity or reasonableness of certain norms and institutions, thus avoiding relativism, without relying on any contested foundations. Instead the claim of "construction" is to start from uncontested premises and to construct via a reasonable procedure principle all could agree on. This paper will argue that despite this aim of constructivism, the arguments of Kantian constructivists imply certain foundational premises. I argue that this is not just an unfortunate mistake of some Kantian Constructivists, but that foundations or foundational premises are necessarily a part of constructivist argument. I then further argue that the foundations used in Kantian constructivism are most plausibly understood as metaphysical foundations, and that indeed they need to be metaphysical to account for the objectivity of the norms 'constructed'. It will start my analysis of Kantian constructivism, by imposing upon it a formal structure, which I argue captures the essence of the constructivist enterprise.1 I will then proceed by indicating where within this formal structure Kantian
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Different authors have emphasised different elements or features in their characterization of Kantian constructivism.See for example Krasnoff 1999: 388ff, Barry 1989: 266ff, ONeill 2003: 348ff, Brink 1996: 307ff and Dworkin 2004: 159ff. I would argue that my characterization captures the essential elements of Kantian constructivism as a non-foundational, non-relativist theory of justification.

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constructivisms failure to provide a non-foundationalist theory of justification can be located, using as examples Rawlss ONeills and Scanlons constructivism. This failure is that each of the Kantian constructivists discussed relies upon a foundational conception of the person. This leads me to argue that no Kantian constructivism can be an anti-foundational theory of justification, if it continues to make strong normative claims for moral principles. I further argue that Kantian constructivism again if it wants to retain its claim to objectivity will also have to provide a metaphysical argument for their favoured conception of the person. This is so because theoretically there are several foundational assumptions possible, and thus a moral theory has only conditional status unless we can give an explanation, account or justification of the necessity, priority, or truth of a particular foundational assumption. This, I argue, will however be an argument, which transcends the domain of both the specific moral inquiry as well as any other scientific inquiry and must approximate an all-encompassing explanation of the reality or our necessary conception of the world. That is, it must involve a metaphysical argument. 2. Foundations in Kantian Constructivism 2.1. Formal characterization I want to start with giving a general outline of what I have taken to be the constructivist enterprise and indicate where one can locate the foundational assumptions within this structure, using as example three constructivist theories. I will then go on to make the claim that these foundational assumptions are not just present in the three particular constructivist theories, but will be found necessarily in all constructivist theories, which subscribe to the general outline of (Kantian) constructivism and its particular ambitions. If one wants to characterize (Kantian) constructivism in a general or formal way, then, I think, one could do so as follows. Constructivism starts with certain facts or conceptions a, b, c which are said to be basic, weak, non-question-begging and uncontroversial (but obviously relevant for the construction of moral and political principles). A, b, c then feed into a procedure p in a twofold fashion: they can either determine the build-up or structure of the procedure in the form of certain constraints or they can be used as data within the procedure. P then generates various normative moral or political principles n1, n2, n3 It is important here to note that constructivism generally conceives of the basic facts or conceptions as being plural, trying to fend off from the very start any suspicions or danger of foundationalism. One will therefore rarely find a constructivist who sets out explicitly to use only one basic fact or conception, which one might illustrate as follows: a p n1, n2, n3 Instead the argument will generally proceed according to the following formula: a, b, c p n1, n2, n3 Further, a, b, c are seen as basic and in one sense morally non-committal or nonsubstantive. By this I want to emphasise the crucial constructivist assumption that n1, n2, n3 do not follow straightforwardly or directly from a, b, c; that is, the resulting normative principles are not assumed to be already entailed within normative starting assumptions. For this to hold, constructivism must claim for p a (what I will call) self-generating element. As Krasnoff has set out, the procedure must take us beyond the basic materials and must lead us to particular principles (Krasnoff 1999: 387). For this, the procedure in itself must do some substantial work in getting us to the specific principles n1, n2, n3, which we could not arrive at by an analysis of a, b, c alone. Foundations are then avoided when neither of the basic conceptions a, b, c grounds or influences either n1, n2, n3 or p fundamentally, and when the procedure

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contains an independent element which enables it to generate principles that take us beyond what is implied or entailed in a, b, c. For foundations to be avoided, however, the procedure itself must also be as basic and non-controversial as possible and the procedural element which generates principles must be suitably influenced by and connected to a, b, c, so that it does not on its own determine the principles n1, n2, n3 regardless of the specific basic conception. To illustrate, it must make a difference to the principles n1, n2, n3 if the basic material is a, b, c or if it is x, y, z. Constructivism then asserts that it is the (systematic) coming, connecting and working together of several elements, all of which are as much as possible basic, convincing and uncontroversial, so that they cannot reasonably be doubted or contested, which leads to normative principles, and which avoids relying on a single foundation. Thus, as we are simultaneously said to (have to) accept the starting assumptions and procedure, once we are shown, how when considered all together, we reach the particular normative principles, we cannot but accept them too, without however, thereby, being committed to one foundational fact, value or moral principle. Given that the starting assumptions and the (nature or build-up of the) procedure are said to be in an uncontroversial sense right or correct, so are the resulting normative principles. 2.2. Foundations Thus foundationalism is only possible within Kantian constructivism if certain things they claim do hold, in fact dont hold. The first of these possibilities concerns the plurality and independence of starting assumptions. If instead of several, markedly different and to a suitable degree independent2 facts or conceptions, only one fact or conception influences the set-up or decision within the procedure, a suspicion of foundationalism arises. The same suspicion still holds, I would argue, if a constructivists had several starting material, but where one starting material is clearly dominant in influencing the procedure and decision within the procedure and the other facts at best only marginally influential. But this suspicion can only be confirmed if the constructive procedure, instead of adding something substantial and new to the starting conception, doesnt. If we only have one starting conception and fact, and the procedure, instead of adding something substantial in the generation of principles, just helps us to see better which moral principles are entailed or required by our starting conception, then we dont seem to have constructivism but foundationalism. The second possibility of foundationalism in Kantian constructivism is then contained in the possible failure of the constructivist procedure to get us beyond the starting material to specific principles. Both of these possibilities of failure seem to have to be fulfilled before we could definitely accuse Kantian constructivism of foundationalism. In the following I would like to briefly show how the three most prominent Kantian constructivists, ONeill, Rawls, and Scanlon compare when assessed with those criteria in mind. This can be only a very sketchy argument,3 but hopefully will
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The independence condition need not be a strong one, but it rules out, I think, mascerading as several facts or conceptions, those which are in fact contained in one. Thus when ONeill talks about the fact of plurality and the fact that this plurality is not naturally coordinated, she seems to speek of two facts. But ONeill also states that a plurality which is coordinated naturally is not a genuine pluality (ONeill 2000: 212). That is, ONeill here implies that the fact or concept of plurality entails the fact that no preestablished coordination exists. In my characterization this would violate the independence condition. These are not several facts, but only one (If ONeills claim that plurality entail non-coordination is true). 3 I undertake a more detailed analysis in my PhD thesis Foundationalism in Kantian Constructivism.

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suffice to make my point. Rawls admits in his Kantian constructivism openly to a conception of the person (as free, equal, reasonable and rational) as one of the starting material of his constructivism. The other starting material (model-conception) is the conception of society as well-ordered (Rawls 1980: 520, 530). The conception of society as well-ordered does not add anything new or fundamentally important to the design or decision within the procedure of construction (the original position) apart from the thought that we dont just have a singular instance of the conception of the person, but a plurality of such persons (Rawls 1980: 521; Galston 1982: 494) and that a well-ordered society would be regulated by a public conception of justice (Rawls 1980: 521). However, the conception of the person already endowed people with a sense of justice, that is, the capacity to understand and act from a conception of justice paired with the highest-order interest to exercise and promote this capacity (Rawls 1980: 525). It thus follows that any society of such people would aim to be regulated by a public conception of justice. Thus the conception of the person is Rawlss fundamental and most significant starting material. His procedure, the original position, does not seem to do any independent work. The original position itself and the decision within are characterized almost exclusively according to the conception of the person. The veil of ignorance is put into place to make sure we conceive ourselves solely as free and equal people (Rawls 1980: 523, 550), and do not unreasonably try to advantage ourselves, the rationality of the parties within the original position reflect that we are rational and have a conception of the good (Rawls 1980: 520,521, 528) and the primary goods are those we need to maintain, use and further our two moral powers (Rawls 1980: 548). The only principles that can come out of the selection process are then those most congruent to the Rawlsian conception of the person. The conception of the person as both free and equal, reasonable and rational is then the foundation of Rawlss Kantian constructivism. ONeill avoids talking of a conception of the person altogether. Indeed it is one of her criticisms of Rawls that he illegitimately uses an ideal of the person. Instead ONeill aims to use only meagre facts about human agency and the world (ONeill 2002: 7, 48, 179, 210). Those facts include the fact of plurality, the fact that there is no natural coordination between this plurality of agents, the fact that we need principles of coordination and the limited capacities and vulnerabilities of human beings. From these ONeill tries to construct the fundamental principle of followability as the necessary principle of coordination and derives at the first principle of justice, the rejection of principles of injury. Because we are faced with a plurality of agents and have no inborn standard which could guide interaction with each other, we have to adopt as principle to guide our action the principle of followability (any maxim of action must be such that it could be followed by all relevant others) the only principle which includes the possibility of universal coordination (ONeill 2002: 60). However, as I have argued elsewhere,4 what is crucially underlying this construction are not facts, but the value-commitment to nonviolent coordination, which is ultimately grounded in the respect and value of rational agency. This underlying conception of the person also determines in ONeill which principles are followable and thus which principles are constructed. When ONeill argues that a principle of injury could not be followed by all, because it would leave some peoples capacity for action injured (ONeill 2002: 163), it is not so much conceptual followability which does the work here, but a commitment to maintain the
Constructivism all the way down: Can ONeill succeed where Rawls failed under submission with Contemporary Political Theory.
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(most extensive) capacities for rational agency. While all people could indeed follow a principle of injury if they were not committed to value rational agency and its expression as such, it could not conceived to be followable by those who have such a value commitment. Scanlon seems to avoid all those difficulties, by using as a procedure of construction the idea of reasonable rejectability (Scanlon 2000: 4) and as starting material various generic reasons (adopting a view which characterises the nature of these reasons as or primitive (Scanlon 2000: 17)). The reasons, which could feed into the procedure, are unlimited and Scanlon thus seems to the fullest extend to fulfil the criteria of plural starting points. When we ask whether a principle could reasonably be rejected we can take recourse to the generic reasons connected with the relevant standpoints connected to the principle (Scanlon 2000: 204, Scanlon 2002: 519). These are the materials, which the reasonable rejectability procedure has at its disposal. Within the procedure the materials (reasons) are then weighted and considered until a decision about the reasonable rejectability of a principle can be reached. No conception of the person seems to be lurking around in Scanlons constructivism. But this impression is deceptive. Scanlons justification of the reasonable rejectability formula is that this is the only formula, which expresses the value of human life as rational autonomous agents (Scanlon 2000: 13, 106, 143, 181, 231, 268). And further the criteria or standard according to which the various reasons are assessed within the procedure is the value of rational autonomous agency (Scanlon 2000: 218). In fact, it is to a certain degree irrelevant which reasons are brought forward into the procedure, as it is clear that only those reasons that can be derived or connected to the value of rational autonomous agency can have any weight in determining whether a principle can or cannot be reasonably be rejected. Each of the constructivist theories, I then argue, relies on a foundational conception of the person. This foundational conception of the person is contained in some cases in one of the basic facts, which thereby also proved to be more than a pure fact (for example in the case of ONeills Constructivism the need for nonviolent coordination). In some cases it is straightforwardly assumed as one element of the starting material (for example in Rawlss Constructivism). These foundational starting conceptions a determine the structure, nature or build-up of the procedure fundamentally, and also the decisions or workings within the procedure and subsequently the construction of normative principles. The other basic material b, c are either derived from a, or indeed peripheral or non-influential to the argument. Where the foundational conception of the person is not one of the starting materials stated (for example in the case of Scanlons theory) it turns out to be the underlying conception v, which determines and structures the procedure exclusively. Here a, b, c (basic reasons) have only indirect influence on the resulting principles, as only those facts which are congruent, or can be subsumed under or derived from v have decisive influence on n1, n2, n3 Facts a, b, c have no influence in their own right on principles, but are discounted within p if they do not accord with v. Structurally, then, we find foundations in Kantian constructivism either in one of the starting materials, structuring p fundamentally, or in the (hidden) conception underlying and structuring p. Normative principles n1, n2, n3 are then straightforwardly connected to the foundational conception of the person, which takes on such a fundamental role and has such substantive content that from an analysis of it alone one could have deduced the resulting principles. One can thus also see that the procedure in all the constructivist theories looked at does not fulfil its promise to get us beyond the starting material, constructing out of

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its own with the help of the material, principles which are not already entailed in the starting material. Why is this the case? The element or candidate for the productive or self-generating nature of the procedure is the idea of agreement, choice or (reasonable) rejection employed within the procedure. However, the only way to release the potential of this element to add something significant to the starting material, I would argue, is to rely on actual choice, agreement or rejection and thus to make the procedure totally self-generating and independent with little or no connections to a, b, c. If actual choice, agreement or rejection is required from the procedure then the outcome is open and not pre-determined by a, b or c. But this would be so exactly because actual persons or choosers would bring to the choice or agreement much more starting material as those specified by constructivism and their decision on what is to count as reason for agreement or choice would also be guided by different standards and principles. Actual choosers would bring their different facts, conceptions or reasons to the table and these could in various ways alter or add to the (procedural) situation and thus to the principles decided. The selfgenerating element here comes with the danger of cutting ties with the starting material. This is so because the procedure which relies on actual agreement or choice is unable to guarantee that the starting material specified by constructivists as the most important for moral argument can have a meaningful influence on the resulting principle.5 In the same way as one would not be able to predict the influence of the starting material a, b, c on principles n1, n2, n3, one would also be unable to predict principles n1, n2, n3 or say anything meaningful about their potential content. Actual agreement or choice has to be awaited and there is no guarantee that we will get the same result at different times or with different people. Here, however, the reason why we are to accept the resulting principles n1, n2, n3 and take them to be objective and authoritative, according to the constructivist rationale, no longer applies. We could not theoretically comprehend any more how acceptance or correctness of the basic starting material and procedure would compel us in a meaningful way to accept the resulting principles n1, n2, n3. The link between starting material and resulting principles is broken. This is so because the self-generating aspect of the procedure has in an important way introduced additional and unrestricted (and I argue morally arbitrary) elements into the procedure, which has contaminated the resulting principles. In the case of actual agreement or choice someone will always be able to challenge the resulting principle as morally arbitrary because nothing prevents them from being contingent on the different and uncontrolled reasons and preferences brought into the agreement or choice situation. One has not necessarily accepted or seen as morally obliging all of the facts and reasons determining the outcome and it can therefore not be inferred that the outcome is morally obliging because one has to accept the starting material.6 The only obligation resulting here is the one (implicit in

Could the actual choice or agreement situation not be kept open and actual but non-arbitrary in, for example, requiring actual discussants only to put forward reasons or principles all could accept or find un-contestable? I do not think that this will work, as either one would have to specify in advance what is un-contestable or reasonable for all to accept, in which case one could theoretically specify the principles capable of acceptance in advance. Then however, the procedure would no longer really be open nor need it be actual any more. The other possibility is to wait and see what turns out to be acceptable or un-contestable, which again might depend upon and be contingent upon all kinds of reasons, and thus is again arbitrary. 6 While this is of course even more the case if one has not participated in the initial choice or agreement situation, it holds also when one has participated. Actual choice and agreement cannot

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this version of the procedure) to accept as obliging whatever is accepted as actual choice or agreement. As I said, I believe this would make the resulting principles morally arbitrary and more importantly it would destroy the constructivist rationale for the different elements and the relationship between them, which was to account for the acceptability of the resulting principles. If this (total) openness or actual agreement is rejected, then the procedure loses its self-generating characteristics. There is no middle way in which the procedure, although fundamentally constrained or influenced by the basic material, could generate something genuinely new which goes above and beyond that which is already entailed in the starting material. As soon as actual agreement is rejected which I argued brought in the new elements by the uncontrolled and unaccountable plurality of reasons, preferences and conceptions actual persons hold the decision within the procedure is controlled by the account of rationality or reasons attributed to the agents, the motivation they are said to have. This determines how they evaluate principles, and what range of information they are given, all of which belong to the starting elements and in Kantian constructivism are connected to the specific conception of the person. But that means noting more than that the conception of the person, underlying these specifications, does all the work and the procedure serves only as a (heuristic) tool to bring out the implications of the acceptance of a particular conception of the person with its specific characterisation of the nature of capacities of reason, motivation and interests. Constructivists place great emphasis on the procedure and a lot of the discussion is centred around or focuses on it, because the hopes were high that the use of a procedure (with a certain self-generating element) could lift us non-arbitrarily away from foundational anchors. But as I have indicated here, the obsession with constructive procedures only hides the fact that the procedure does not do any real or constructive work. Instead that which determines the nature of and decision within the procedure is the foundation of constructivist theories.7 This I argue is the conception of the person which can be found in Kantian constructivism either implicitly or explicitly in starting material or in the value underlying the procedure. The real decision concerning which moral principles we should accept is then made before the procedure comes into play. Therefore the procedure cannot add or give the normative principles any justification or claim to objectivity, which would not already have to be assumed for the foundation, the particular conception of the person. For this very reason, however, it is of fundamental importance to give a convincing justification of this thick conception of the person. 2.3. Foundationalism in all constructivist theories Could it not be one might want to ask, that the identified failures of Kantian constructivism are peculiar to the specific theories I have mentioned? This would mean that there is still hope for a genuine constructivist theory which could avoid foundationalism and which would still argue for a robust moral theory. I doubt that this will be the case; indeed I would go so far as to say that I do not think that it can
control the reasons and facts which actors find convincing and acceptable and upon which they decide. 7 This is noted by Ripstein, who states: The question remains: which considerations ought to be built into the choice situation? The privileged considerations, whatever they are, serve as a foundation for the institutions that are chosen (Ripstein 1987: 119). I make however the further claim that these considerations are determined by the privileged conception of the person, which then serves as ultimate foundation.

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be the case due to the specific nature and structure of the constructivist enterprise, and also due to the general structure and nature in normative moral and political justification. Let me turn to the specific structure of constructivism first and why it will always entail a foundational commitment. Two aspects here are crucial. The first concerns the basic material that constructivism wants to use. The aim is to use only basic uncontroversial and weak premises, which do not have the potential to claim to be or to provide a (thick) foundation. The prime candidates for constructivists here are basic facts, whether those concerning the human condition, or general sociological, psychological or economic facts. Facts would seem to have the advantage of not being subject to reasonable rejection or contestation and of not being morally or metaphysically loaded, that is of being neutral and therefore an acceptable starting point for all regardless of their more particular value commitments. However, as Cohen has observed no facts can take on the task of grounding normative principles or procedures without presupposing a more ultimate normative principle, which explains why the facts would ground that principle or procedure. Alternatively one could say that no principle or procedure can be derived purely from facts without presupposing a more ultimate or foundational normative principle. Cohen states his main thesis as follows: In my view and this is my thesis a principle can reflect or respond to a fact only because it is also a response to a principle that is not a response to a fact. To put the same point differently, principles that reflect facts must, in order to reflect facts, reflect principles that dont reflect facts (Cohen 2003: 214). Cohen calls these fact-insensitive principles basic principles (Cohen 2003: 214n4). What is important to Cohen is that we need an explanation of why a given fact F grounds a principle p (Cohen 2003: 218). So any sequence of arguments for certain principles thought to be based on or grounded in facts presupposes a logically prior normative principle, which explains why the facts support the given principle. This prior principle is valid whether or not the facts hold (Cohen 2003 215, 215/6, 216). It is also the foundation of all following principles. Cohen states: all principles that reflect facts reflect facts only because they also reflect principles that do not reflect facts, and that the latter principles form the ultimate foundation of all principles, fact-reflecting principles included (Cohen 2003: 231, my italics). Take, for example, ONeills constructivism, which explicitly aimed to use not just basic (empirical) facts but also to ground the constructive procedure in those facts. The fact of plurality and the fact that there is no pre-established coordination was said to do all the work here. However my analysis showed that what made these facts into decisive ones supporting the universality principle was a normative commitment to non-violent coordination. This could be expressed for example as principle p1: we should seek coordination and communication, which is non-violent. Now, our commitment to p1 might be supported by the fact that we are creatures with the capacity for reason and communication and therefore can establish non-violent coordination. However this fact only supports the principle p1 if we believe an even more basic principle p2, namely that we should respect and use our rational capacities, that is, that we should respect rational creatures. This seems to be an

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ultimate principle which itself is based on no facts and which would also survive the denial of the facts. Principles are fact-independent in the sense that they are logically prior to and would survive the denial of, the facts they explain. So, for example, we would still (have to) be committed to p1, that we should seek non-violent coordination, even if we came to believe that there is a pre-conditioned harmony among human beings. We would still have to be committed to the goal of non-violent coordination in cases where it would apply. It is only because we are committed to (the truth of) these normative principles that when we are confronted with the fact of non-coordination, it can be used to ground a moral principle or procedure. ONeill could not ground her normative principles solely on empirical facts without relying on a more ultimate and foundational normative principle, which explained why those facts support her normative conclusions. I think that we can see clearly in ONeill that a more ultimate normative principle is presupposed in order to make certain facts relevant for normative principles, and that this principle or commitment to this principle is logically prior to the facts and is thus also more fundamental than the facts. This expresses nothing other than that it is the foundation of ONeills respective theories. Therefore my first argument against any successful anti-foundational constructivism bases itself on the truth of Cohens argument and states that there is no way that constructivism could ever get started or get off the ground by basing itself or using solely non-controversial facts. They will always be committed one way or another to a more ultimate normative principle which then takes on a foundational role. My second argument against the success of a non-foundational constructivism is even more specific in arguing that no constructivist theory can be put forward without a foundational conception of the person. This is related not to the idea of facts as adequate starting material, but to the procedure of construction. This procedure is said to be in one sense obvious and innocuous, but also to be to a certain extent adding something to the basic material and generating specific principles. The most likely candidate here is a procedure, which involves (hypothetical) agreement or choice of human beings or agents.8 If we rule out on good reasons, as I argued actual choice or agreement (as normatively authoritative) we are left with a procedure which asks what all could or would agree to or reject. In one way or another, this can be seen as an expression, interpretation or modification of the Kantian universality test, the Categorical imperative. Now, I argue that if we do not believe any more that the universality test, as supreme principle of practical reason, can undoubtedly and decisively identify moral principles by its pure formal operation (contradiction in conception and contradiction in the will), because the transcendentally valid criteria of reason would force us all to converge on principles which pass this formal test, then any form of this procedure presupposes a particular and substantive conception of the person which determines what a person can, or must, will, agree or choose. For this claim it will be useful to look at Korsgaards argument. Korsgaard, who herself puts forward a neo-Kantian theory, argues that what kind of reasons we accept or adopt depends on the practical identity we hold (Korsgaard 1996: 101). Without such a practical identity we could determine no reasons as relevant and thus have no reason to act (Korsgaard 1996: 120). If a constructive procedure asks what we could
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If anyone is to do the agreeing or choosing, that is, the constructing, then it would have to be human beings or agents, as one of constructivisms basic premises is the rejection of both the existence of some transcendental being who could construct moral principles and the existence of a natural order which could generate or construct moral principles.

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all agree on or choose, and the reasons for choice and agreement depend on our conception of ourselves or our practical identity, then what we would agree or choose would depend on the particular practical identity we presuppose. And as Korsgaard observes, there are numerous possible conceptions of practical identity (Korsgaard 1996: 101, 116/7), which consequently would lead to different principles being agreed to or chosen. The constructivist theorist has then to argue for her favoured conception of the person or practical identity and why we all universally or within a given community should have or accept this particular identity. It is not enough here to argue that we do actually share some particular identity, as some practical identities can be shed and are thus contingent (Korsgaard 1996: 102, 120, 129). An argument has to be made why a particular conception of the person or a particular practical identity is the one which we all should or necessarily have to accept.9 And once we do accept it, then it will also be clear what kind of reasons, given our fundamental practical identity or conception of the person, we will take as relevant for us. And only then can we make an argument for what we all (should morally) accept or choose. I have argued then that the nature of the constructive procedure (combined with their fundamental belief that there is no a-historical transcendental reason which determines what is rational to do or agree to), forces constructivists to rely on a substantial conception of the person or practical identity which makes it intelligible to talk about what all people could accept, agree or choose. As it is by no means uncontroversial, uncontested or obvious which conception of the person we should hold, that is which is the most fundamental one on which then to base morality, constructivists will always have to defend and justify their adherence to a particular (foundational) conception of the person. The question or procedure that asks what we all could agree or choose is not and cannot be an innocuous one, exactly because of the fact of pluralism and the rejection of a transcendental reason or nature which necessitates us to converge on the same reasons, principles or conceptions of the person. By asking what we all could agree, choose or reject constructivists are fundamentally asking which conception of the person we should have or have to accept as fundamental. And as I have argued before, once we have decided upon this
Korsgaards argument proceeds by claiming that our reflective nature necessitates us to have a practical identity which determines our reasons for action. But while most identities are contingent, the fact that we are reflective creatures who need a practical identity is not contingent and cannot be shed (Korsgaard 1996: 121/2). This amounts to, as Korsgaard phrases it, the necessary recognition of our humanity (Korsgaard 1996: 121) as our fundamental practical identity (although it only becomes morally authoritative for us when we endorse it (Korsgaard 1996: 254)). However, Korsgaard also admits that what specific normative obligations we accept depends on our understanding of humanity. Korsgaard says that Citizen of the Kingdom of Ends, participant in a common happiness, species being, one among others who are equally real, are different conceptions of the human-being- as- such among which further sorting would have to be done (Korsgaard 1996: 118). Needless to say, I would contend that Korsgaard is involved in a foundational and metaphysical argument concerning the nature of human beings, namely an argument that it is our nature to construct practical identities (Korsgaard 1996: 150) and that she will also need a metaphysical argument regarding the choice of how we are to interpret our humanity more concretely. Indeed when Korsgaard states something like the following, one cannot but help thinking that she is making a metaphysical claim: You are an animal of the sort I have just described. And that is not merely a contingent conception of your identity, which you have constructed or chosen for yourself, or could conceivably reject. It is simply the truth (Korsgaard 1996: 123, my italics). Interestingly in this statement Korsgaard also seems to equate construction with contingency. It is clear, however, that Korsgaard accepts the need for a fundamental conception of the person as foundation for a moral theory and goes to some lengths to argue for the necessity of this particular one.
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question it is in a sense a technical (or theoretical) exercise to ask what those persons would agree to or choose. Kantian Constructivists then have to come clean about the particular conception of the person they use as foundational and provide us with a justification for it. And given the many possible conceptions of the persons available they have to provide us with a justification for it, if the resulting normative principles are not arbitrary and can fulfil their role as normative principles that is telling us what we ought to do. This justification cannot itself be constructivist as the question of what conception of the person we all could or would accept or choose already presupposes (on the constructivist reading) the conception of the person. Thus, constructivists also have to face up to the fact that their conception of the person is a non-constructive foundation, and that their theory therefore cannot be constructivist. What kind of theory they really do provide will then depend on the particular account or justification they provide for their conception of the person. 3. A Note of Foundations This said, however, my argument so far has said very little about the nature of and status of those foundations (the concept of the person) and how we (can) come to know them. I take my argument to be largely neutral in regard to the question of the substantive content and status of foundations with two exceptions, which I will address, in a short while. For my argument regarding the foundational structure of Kantian Constructivism, it is important to point out that I have been using a very broad notion of foundation, similar to the one that Andrew Vincent suggests. He states: The term foundation is used in a very broad sense. It is taken to imply some class of statements or propositions, which are favoured absolutely over others. To be foundational, this class of statements is regarded as fundamental fundamental implying that its possessors cannot avoid deferring or referring back to it. This class of statements is, in other words, always presupposed by a diversity of other statements. Insofar as this class of statements is fundamental, it can be considered near inescapable or near unavoidable in any theorizing (Vincent 2004: 3).10 His definition of foundations as having fundamental status favoured absolutely over others accords with my use of foundations. Vincent argues that through this fundamental status these foundations can be seen as inescapable or unavoidable, echoing here more traditional definitions of foundations, which, for example, claim that foundational beliefs have to be undeniable and immune to revision (Herzog 1985: 20).11 While Vincent has weakened this assumed requirement considerably, it seems to be important for my use of foundations to clarify it further. On my reading foundational assumptions are inescapable or unavoidable or non-revisable with regard to a given theory. That is, while I want to allow the possibility to revise, question and doubt the foundational assumptions of the justification of a particular theory, I want to argue that this doubt or revision will alter the justified theory fundamentally. We can, for example, doubt in a Kantian theory whether property rights are a necessary
For other more specific or narrow definitions of foundationalism see Seery 1999: 466, Herzog, 1985: 20, Timmons 2004: 226, 234/5, Brink 1996: 102, Ripstein 1987: 115, Heath 1997: 460. 11 Brink similarly argues that what is essential to foundational beliefs, according to foundationalism, is their relative incorrigibility (subjective conceptions) or their relative reliability (objective conceptions) (Brink 1996: 110).
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precondition for practical reason to be effective in the world and thus adjust the theory accordingly, yet we could still, I would suggest, maintain that the overall nature of the theory (and the account of the authoritative status of moral obligation) is Kantian, because this element is not the foundational element of a Kantian theory. However, we could not change or doubt the belief in human beings freedom without altering the theory fundamentally. My point is therefore that foundational assumptions are fundamental for any moral theory and have to be favoured above all others, as doubting or altering these foundational assumptions would result in the destruction or alteration of the whole theory. This avoids in my mind one of the frequent attacks against foundationalism, namely that there is no presupposition or assumption, which could not theoretically be doubted or imagined to be different, and that it is unclear what would make such a foundational assumption self-justifying or self-evident. Foundations on my reading then do not have to be self-justifying or self-evident (although of course they could be). Instead, foundations are only self-evident, necessary, un-doubtable, and immune to revision in relation to a particular theory. We then need another argument for these foundations. I have said that my argument is so far neutral with regard to the nature and content of possible foundations, but I now want to argue for two restrictions regarding the nature of these foundations, which indeed follow partly from what I have argued so far. The first restriction concerns the content of foundations and follows from my acceptance of Cohens argument, namely that no facts can ground normative principles alone. From this it follows that the absolute or fundamental assumptions of a moral theory cannot be facts. The second restriction concerns the status of these foundational assumptions and is connected to the specific task of justifying normative, moral and political principles, which are obliging or necessitating. In regard to this, I claim that no foundational assumptions for justifying moral or political norms can be adequate or convincing or fulfil their role, when it has to be conceded that we have just posited them without further explanation, account or justification of their special status or importance for morality.12 To do so would fulfil the necessary formal structure of all moral and political justification but it would not succeed in giving a convincing normative justification. The reason for this is that normative (moral) principles are said to have a certain hold over us; they are thought to oblige or necessitate us to action even if we would rather do something else. Korsgaard has given a good account of the peculiar nature of normative principles. Ethical standards, according to Korsgaard, are normative in that they do not merely describe a way in which we in fact regulate our conduct. They make claims on us; they command, oblige, recommend, or guide. Or at least, when we invoke them, we make claims on one another (Korsgaard 1996: 8). Korsgaard then argues that When we seek a philosophical foundation for morality we are not looking merely for an explanation of moral practices. We are asking what justifies the claims that morality makes on us. This is what I am calling the normative question(Korsgaard 1996: 9/10). Thus, one of the criteria that any moral theory must answer to is one she calls normative or justificatory adequacy. This criteria denotes the fact that when we do moral philosophy, we also want to know whether we are justified in according this kind of
Note here, that an explanation that we could all agree on them is only insofar adequate as it is supported by an account of the normative authority or significance or truth conveying nature of (shared) agreement.
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importance to morality [] We want to know what, if anything, we really ought to do (Korsgaard 1996: 13). Thus a justification, which has to admit that its foundational assumption is (purely) contingent, cannot account for the importance of moral principles and why we should see them as obliging. Some account of the importance, priority or worthiness or inevitable nature of the particular foundational assumption has to be given for the justificatory theory to at least be a genuine attempt to justify normative principles, which really do oblige. Otherwise we are not really involved in justifying moral norms at all, but only involved in a sceptical exercise. That is, we would formally show that there are certain presuppositions for our moral principles, but these can have no special hold on us or any importance, and we would thus defeat the point of justification. We would then have to be sceptics with regard to moral obligation. Korsgaard defines the moral sceptic as someone who thinks that the explanation of moral concepts will be one that does not support the claims that morality makes on us (Korsgaard 1996: 13). This would be precisely the case if we had to concede that we could give no meaningful account of why we use the particular foundations we use in our justificatory argument and why they are the adequate foundations for a moral theory. Any person engaged in genuine moral and political justification that is any one who really does want to show or argue why we should direct our actions according to some principle has not only some foundational assumption, but must give an account, explanation or justification of their priority or adequacy as moral and political foundations. This need is even more obvious if we consider that the option to claim that our foundational assumptions are facts, which can just be pointed out and therefore do not seem in need of any explanation or justification, does not exist. These conclusions, although they leave much of the content and nature of possible foundations open,13 lead me to make a further (tentative) claim about Kantian constructivism. This is that Kantian constructivism cannot avoid making metaphysical claims and thus must also be involved in metaphysical arguments.

4. Necessity of Metaphysics Metaphysics has acquired a bit of a bad reputation in moral and political philosophy. Because of its alleged non-empirical character and thus its elusiveness with regard to conclusive (empirical) proof, validation or argument, many are tempted to see it as nonsense to be dismissed. Even if they would not go that far, it is implied by many liberal and Kantian Constructivists that agreement on metaphysical questions could never be attained, as they are always and inherently open to contestation, and that therefore in conditions of pluralism we should avoid talking about or involving metaphysical presuppositions or arguments altogether.14

Here it might be helpful to point out that my claim is also relatively neutral regarding the question of how thick or weak the foundations are to be. A weak foundationalist theory would still have a foundation which could be contested and needs a (metaphysical) justification. The thinness or weakness of the foundation in question cannot translate itself directly into acceptability or normative authority for the so developed theory. The argument for thinness or weakness of foundation is, so I would probably suggest, itself based on a substantive normative and metaphysical claim about the nature of morality or moral theorizing. 14 Hampton, when asking herself what definition of metaphysics Rawls is referring to when he rejects it, states that from context it doesnt seem that he can mean it in the positivists sense as nonsense to be dismissed but, rather, in a more Hobbesian sense as doctrines for which an incontrovertible

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It is often not altogether clear what exactly, for example, constructivists understand under metaphysics, when they assert that they want to and do avoid it in their arguments. I will in the following assume metaphysics to either be concerned, as traditionally understood, with claims about the fundamental nature of reality, which could not be substantiated solely by the methods of any special science or intellectual discipline, such as anthropology or history or sociology (Lowe 2002: 4, my italics) or with the necessary or fundamental structure of our understanding of and acting in the world (Kant 1996: A 841/2; B869/70, Lowe 2002:7, Loux 1998: 1,6; Williams 1999: 2-3). Regardless of whether one adopts the traditional definition of metaphysics or a more Kantian one, they both capture what I take constructivists as wanting to avoid, namely an attempted explanation or account of the nature of the world or the necessary conditions of our experience or understanding of and action in the world, which goes beyond the remit of the specialised sciences and therefore cannot be proven or shown by any one of them. This, in a sense, represents the danger of metaphysics as it slips through the nets of the explanatory or conceptual tools of the more specialised (and, as we feel, more validated or sound) sciences.15 Because it so slips through the nets of the acceptable tools we have to show it as undeniable or uncontestable true, it is generally assumed that metaphysical arguments cannot be used to argue for principles we all could agree to. Even though this is an inherent problem of metaphysics and carries with it the possibility of irresolvable dispute, I will nevertheless (tentatively) suggest that it is inevitable (even and maybe exactly because we live in a plural world). I have argued that Kantian constructivism relies on a foundational conception of the person and thus has a foundational structure and that different foundational assumptions will lead us to different moral and political principles. Living in a pluralistic world we know of the possibility of different substantial conceptions of the person.16 It might seem that this kind of argument should lead me in exactly the opposite direction from assuming the necessity of metaphysics. It seems that I have shown that foundations are inevitable but that also several or a manifold of foundations are possible. One, maybe obvious, conclusion or reaction to such a demonstration may be to assume or postulate that one foundation is in principle as good as the other and that we should either choose among them as we please and prefer or just accept the one foundational assumption we happen on introspection to hold. Now, firstly I would like to argue that this in itself constitutes or would entail a metaphysical argument about the fundamental nature of reality, namely that there is no (ultimate) true, better or necessary foundational assumption from or on which true moral or political theories could be developed. This post-modern conclusion implies a thesis that goes beyond the valid or established conclusions or claims of other
demonstration is not possible. Such doctrines have the potential to arouse controversy and provoke conflict in the community (Hampton 1989: 794/5). 15 However, the impossibility of or extravagant nature of, metaphysics is often exaggerated. Vincent refers to Peirce in defence of metaphysical argument, stating that the complaint that the study of metaphysical foundations is too abstract, is in itself ridiculous, since all the natural sciences (and many social sciences for that matter) are fare more abstract and remote than metaphysics. Equally, it is nonsensical to say that the objects of foundational metaphysics are not observable or easily studied. Most objects in the sciences (and social sciences) cannot be directly or easily observed (Vincent 2004: 6). For example, Energy, gravitation, or supply and demand curves [] cannot actually be seen (Vincent 2004: 7). 16 Successful is used here not to denote something like maximally flourishing or the like, as this is itself a substantive criteria, but just the fact that people could live by it.

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sciences and also beyond the claim that different foundations are possible. It makes a very fundamental claim about the reality of (moral) knowledge. Only the metaphysical thesis of the impossibility of true foundational assumptions (for morality) leads or directs us from the statement about different possible foundations to the normative claim that we should not try and could not find a true foundation, but should instead either make the best of what we have or choose as we please. In that sense I argue with Lowe who states that the attempt to undermine or eliminate the metaphysical dimension of our thinking is self-defeating, because the very attempt necessarily constitutes a piece of metaphysical thinking itself (Lowe 2002: 4). Even those who want to deny that moral or political principles are capable of universal truth claims or of being objective must in the end make a universal metaphysical claim about the nature of reality or about our possible understanding of it. While I therefore argue that even the post-modern or radical relativist conclusions that one could try to draw from my argument would involve a metaphysical claim, I would also like to argue that these conclusions cannot be drawn by anyone who wants to engage in genuine justification. If we really did hold the metaphysical view that no foundational assumption can even possibly be true or correct or necessary17 and that we therefore would not be wrong, or would be equally justified in espousing any of the foundational assumptions, we would have turned once more into the sceptic. Here moral theory would not survive metaphysical explanation. We could not account for the demands and importance of a particular moral obligation, and would have to concede that we are deceiving ourselves about the status of morality. To attempt any genuine justification at all of moral or political norms we need to at least entertain or allow for the possibility that a foundational assumption could be true, correct or necessary. In the case of Kantian Constructivists, with their reliance on various principles of respect for rational and free human beings, this metaphysical argument would, for example, have to take the form of providing an explanation of why we (necessarily) have to conceive of ourselves as free, and why rationality and freedom express our real or fundamental nature, so that they can demand respect and can thus demand to be valued by us.

Bibliography Barry, B. (1989): Theories of Justice. A Treatise on Social Justice, Volume I. Harvester-Wheatsheaf, Hertfordshire.
Here it is important that one only need to state the possibility of foundations to be true or correct and that one is not committed to saying that we have found an (undeniable) true foundation or that there is an easy way to do so.
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Brink, David O. (1996): Moral Realism and The Foundations of Ethics. Cambridge Studies in Philosophy. Cambridge University Press, Cambridge. Cohen, G.A. (2003): Facts and Principles. Philosophy & Public Affairs, 31, No.3: 211-245. Dworkin, R. (2004): Taking Rights Seriously. Duckworth, London. Galston, W. A. (1982): Moral Personality and Liberal Theory: John Rawlss Dewey Lectures. Political Theory, Vol.10, No.4: 492-519. Hampton, J. (1989): Should Political Philosophy Be Done without Metaphysics? Ethics, (99): 791-814. Heath, Joseph (1997): Foundationalism and Practical Reason. Mind, Vol. 101, No. 5: 451- 473. Herzog, Don (1985): Without Foundations. Justification in Political Theory. Cornell University Press, Ithaca and London. Kant, I. (1996): Critique of Pure Reason. Translated by S. Pluhar. Hackett Publishing Company, Cambridge. Korsgaard, Christine M. (1996): The Sources of Normativity. Cambridge University Press, Cambridge. Krasnoff, L. (1999): How Kantian is Constructivism? Kant-Studien, (90): 385 409. Loux, Michael J. (1998): Metaphysics. A contemporary introduction. Routledge, London and New York. Lowe, E. J. (2002): A Survey of Metaphysics. Oxford University Press, Oxford. ONeill, O. (2000): Constructions of Reason. Cambridge University Press, Cambridge. ONeill, O. (2002): Towards Justice and Virtue. Cambridge University Press, Cambridge. ONeill, O. (2003): Constructivism in Rawls and Kant. In: Freeman S (ed). The Cambridge Companion to Rawls. Cambridge University Press, Cambridge: 347367. Rawls, J. (1980): Kantian Constructivism in Moral Theory. The Journal of Philosophy (77): 515-572. Ripstein, Arthur (1987): Foundationalism in Political Theory. Philosophy and Public Affairs, Vol. 16, No. 2: 115-137. Scanlon, T. M. (2000): What We Owe to Each Other. Harvard University Press, Cambridge, Massachusetts and London, England. Scanlon, T. M. (2002): Reasons, Responsibility, and Reliance: Replies to Wallace, Dworkin, and Deigh. Ethics, 112 (3): 507-528. Seery, John E. (1999): Castles in the Air. An Essay on Political Foundations. Political Theory, Vol. 27, No.4: 460-490. Timmons, Mark (2004): Morality without Foundations. A Defense of Ethical Contextualism. Oxford University Press, Oxford. Vincent, Andrew (2004): The Nature of Political Theory. Oxford University Press, Oxford. Williams, H. (1999): Kant, Rawls, Habermas and the Metaphysics of Justice. Kantian Review, Vol. 3: 1-17.

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