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How Kantian is Constructivism?

by Larry Krasnof f , Charleston/South Carolina

Constructivism is said to be a new possibility in ethical and political theory, a
possibility that is said to have its origins in Kant's practical philosophy.
But since
John Rawls introduced the term in his 1980 Dewey Lectures, there has been little
agreement about vvhat "constructivism" even means. I f it is exemplified by Rawls'
theory of justice, what features of that theory make it constructivist? I s "construc-
tivist" simply a synonym for "Kantian, " or is constructivism a particular, and par-
ticularly controversial, I nterpretation of Kant's practical philosophy? I n what sense,
if any, was Kant a constructivist?
Most of the discussions of constructivism in the secondary literature begin by
regretting that neither Rawls nor anyone eise has provided clear answers to these
The present paper seeks to remedy this lack, but I must caution at the
outset that decisive answers are almost certainly unavailable here. Providing them
would require stipulating which of the many competing senses of constructivism
should count s a definition. Since this sort of stipulation could have little effect, I
propose instead simply to sort out the literature on constructivism for some possible
definitions. What will emerge is not what constructivism must mean, but some
more coherent pictures of what it might mean. Having sketched these pictures, we
can then turn to the question of whether Kant should count s a constructivist.
The paper has six sections. In the first two, I suggest that constructivism has
been understood in two important ways. On the first construal, constructivism is
John Rawls, "Kantian Constructivism in Moral Theory," Journal of Philosophy 77 (1980),
pp. 515575 (hereafter simply KC). Lecture III of Political Liheralism (Columbia University
Press, 1993; hereafter PL) is a revised version of the Dewey Lectures.
I n this paper I discuss only constructivism in moral and political theory, avoiding any
discussion of constructivism in mathematics. Rawls has generally resisted connecting the
two, but PL does attempt a very brief discussion; see pp. 102103. None of the other
accounts of moral and political constructivism that I will be discussing here even mentions
constructivism in mathematics.
Sometimes constructivism is used to describe what is more commonly called "social con-
structionism": the view that scientific, ethical or other beliefs are the products of socializa-
tion rather than any sort of reasoning. This idea does have some relation to the ideas that
I will be discussing, and I try to suggest the connection in section II.
See Brian Barry, Theories of Justice (University of California Press, 1991), p. 266, and David
Brink, Moral Realism and the Foundations of Ethics (Cambridge University Press, 1989),
p. 305 f. Rawls himself notes the variety of senses of constructivism in the literature in PL,
pp. 9091 n. Most of the works Rawls cites in this footnote are discussed in the present
paper and its footnotes.
Kant-Studien 90. Jahrg., S. 385-409
Walter de Gruyter 1999
ISSN 0022-8877
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386 Larry Krasnoff
a type of normative theory that emphasizes a constructive "procedure" like the
original position. On the second construal, however, constructivism is a view about
how normative theories are to be justified, a claim that such justification is ulti-
mately practical rather than theoretical. Only the first conception of constructivism
has been fully endorsed by Rawls himself, though his theory does seem to imply
the second conception s well. In the third section of the paper, I note the ways in
which both conceptions have been taken to imply alternatives to moral realism,
despite Rawls' warnings against this. In the fourth section, I try to show that these
conceptions of constructivism (and of its meta-ethical consequences) are distinct,
though they may be related under a kind of publicity condition that Rawls does in
fact accept. Finally, in the last two sections of the paper, I suggest that Kant's moral
and political theories correspond to the two conceptions of constructivism in only
a weak way, because Kant accepts Rawls' publicity condition in only a weak way.
In all of this I will emphasize clarification over positive argumentation. Though my
own views will occasionally and necessarily emerge, my aim here is not to argue
for or against any version of constructivism, but simply to explain what such argu-
ments are likely to be about. This is a modest goal, perhaps, but it is also one that
has yet to be reached in the literature.
In the Dewey Lectures Rawls comes closest to a definition when he writes that
constructivism "specifies a particular conception of the person s an element in a
reasonable procedure of construction, the outcome of which determines the content
of the
first principles of justice.' "
Three features of this claim seem crucial.
First, there is the emphasis on a Substantive conception of the person. Rawls
repeatedly contrasts constructivism with rational intuitionism, a view he attributes
to such diverse figures s Plato, Leibniz, Sidgwick and G. E. Moore.
This view,
says Rawls, requires only a sparse view of the person s knower; a rational intu-
itionist holds that we can have access to an objective moral order that exists inde-
pendently of any view about human agency or about the social role of morality. In
other words, no specifically moral or practical interests are built into the rational
intuitionist's conception of the person. On this view, we are able to approach moral-
ity and apprehend its truths from the outside, s detached observers. By contrast,
constructivism requires that we specify a thick, practical conception of the person
s an agent, laden with practical interests and goals. For instance, Rawls' own
version of constructivism specifies a conception of persons s both rational and
Rawls, KC, p. 516.
See Rawls, KC, pp. 557-560; "Themes in Kant's Moral Philosophy," in Eckart Frster (ed.),
Kant s Transcendental Deductions (Stanford University Press, 1989), pp. 95-98 and PL
pp. 91-92.
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How Kantian is Constructivism? 387
reasonable, s possessing both a particular conception of the good and a sense of
Second, there is the appeal to a particular procedure by which the specified per-
sons "construct" moral or political principles. I take the key idea here to be that the
constructive procedure must do some real work that takes us beyond the specified
conception of the person. To understand this point, imagine a theory that empha-
sized a part i cular conception of the person, say, s autonomous. One could then
hold the view that morality was about promoting those conditions under which
persons could develop, mai nt ai n and exercise their autonomy. Such a view, however
plausible, would not be constructivist. To get to constructivism we have to specify
a procedure or mechanism in which the autonomous persons themselves selected
the principles or institutions that would count s morally justified. Constructiv-
ism is thus not about promoting or realizing a conception of the person, but
about using that conception, in Rawls' terms, s an "element" of a procedure
in which persons construct a moral or political doctrine. To the conception of
the person there must be added a particular procedure of construction, and this
procedure must take us beyond the conception of the person to the content of
the theory.
Finally, there is the claim that the outcome of the procedure is to be regarded s
morally justified; indeed, the claim of constructivism is that what is morally justi-
fied is just whatever is constructed in the procedure. In the Dewey Lectures Rawls
overstates this point by saying, "Apart from the procedure of constructing the prin-
ciples of justice, there are no moral facts."
This is an overstatement because there
are clearly moral considerations that support Rawls' conception of the person s
rational and reasonable, s well s his design of the original position s a con-
structive procedure. It could not be that these moral facts are constructed by the
original position.
Indeed, the thought that the constructive procedure generates
morally justified outcomes demands that we defend the privilege that this particular
procedure enjoys. Such a defense will obviously require normative premises, but its
point is precisely to defend the constructive procedure s uniquely suited for moral
or political deliberation. For Rawls, nothing should count s a just political prin-
ciple unless we could show that it would be chosen in the original position. The
original position is intended s the sole framework for public deliberation about
justice. As Rawls later puts it, rather than saying that moral facts are constructed,
we should say that "a constructivist procedure provides principles and precepts that
specify which facts about persons, institutions, and actions, and the world generally,
are relevant in moral deliberation. Those norms specify which facts are to count s
See especially PL, pp. 48-54.
KC, p. 519.
Rawls has made this point several times since KC. See "Themes," pp. 99, 101 102 and PL,
pp. 103-104, 109, 121-125.
Rawls, "Themes," p. 101.
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388 Larry Krasnoff
Putting these three ideas together, we could say that constructivism is the view
that justified ethical or political principles are simply those that would be chosen
or agreed to by a specified set of persons under a specified set of conditions. On
this understanding, it has been suggested, constructivism can be described s a kind
of hypothetical proceduralism.
This is the view of constructivism that has been
proposed by Brian Barry, and that Rawls seems recently to have endorsed.
Barry has also noted, this view tends to identify constructivism with contractarian-
ism. None of the classical proponents of the doctrine of the social contract saw the
contract s any sort of actual agreement; all understood it s what human beings
would have agreed to if understood their Situation in the right way (i. e. if they
thought of themselves in a suitably characterized state of nature). So in this sense
the classical social contract theorists were all hypothetical proceduralists and hence
constructivists. And Rawls' theory is constructivist in the sense that it is a version
of social contract theory.
One advantage of this Interpretation is that it can make sense of Rawls' Sugges-
tion that there could be variant forms of constructivism.
If constructivism holds
that what is good or right is what would be chosen by certain persons under certain
conditions, we can get different versions of constructivism if we specify different
sorts of persons choosing under different conditions. Barry offers a number of fa-
milir options: we can specify a set of isolated individuals motivated only by self-
interest (Hobbes), a set of identical individuals motivated by self-interest but situ-
ated behind a veil of ignorance (Rawls), or perhaps a set of actual individuals
motivated not by self-interest but by reaching an agreement that all can accept
(versions of which have been proposed by Habermas, Scanion and Barry himself).
The question would then be which of these hypothetical procedures, if any, can
capture what occurs in moral and political reasoning.
One disadvantage of this Interpretation, however, is that it fails to specify any
new meaning for constructivism. If constructivism is merely social contract theory
See Steven Darwall, Allan Gibbard and Peter Railton, "Toward Fin de Siede Ethics: Some
Trends," Philosophical Review 101 (1992), pp. 139-140. The term "hypothetical procedur-
alism" is theirs, but they specifically introduce it to describe Barry's understanding of con-
structivism (see the next footnote).
See Barry, Theories of Justice, pp. 264-271, especially p. 268: "Constructivism in gene-
ral, I shall say, the doctrine that what would be agreed on in some specified Situation
constitutes justice." Rawls' endorsement of Barry's usage comes in PL, pp. 9091 n.; he
claims that of all the writers who have discussed constructivism, only Barry and T. M.
Scanion understand it in the sense that he (Rawls) does. (Scanion does not use the
term "constructivism;" the essay of Scanlon's to which Rawls refers speaks only. of
"contractarianism." I note the connection between contractarianism and Barry's sense
of constructivism below). Rawls' footnote clearly implies that Ronald Dworkin's and
David Brink's understandings of constructivism are not his; this will become important
for my discussion in sections IIIV .
See Rawls, KC, p. 515.
See Barry, Theories of Justice, pp. 269271.
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How Kant i an is Const ruct i vi sm? 389
s conceived not onl y by Rawls but also by Hobbes and Locke, what if anyt hi ng is
gained by i nt roduci ng this nevv term? In what sense did Rawls (or at least some of
his readers) t hi nk t hat constructivism was a new and di st i nct possibility in ethical
and political theory? To underst and this we have to t urn to a second sense of
constructivism, one t hat is distinct from hypot het i cal proceduralism.
Anot her way of capt uri ng the distinctiveness of constructivism is to emphasize
the idea that ethical t rut hs are made, not found. This thought can be traced back
beyond the Dewey Lectures to Ronald Dworkin's i nfl uent i al review of A Theory of
Justice that appeared in 1973, an essay that may well have prompted Rawls to
begin using the term "constructivism."
But the feature of Rawls' theory that
Dworkin identifies s "constructive" is not, s it is for Barry, the original position.
What interests Dworkin is Rawls' method of reflective equilibrium: the idea that
we move back and forth between particul ar intuitions and general principles, dis-
carding bits and pieces of each unt i l we have arrived at the most coherent theory,
the theory that best shows how our particular intuitions can be subsumed under
general principles. For Dworkin, the method of reflective equilibrium represents a
decisive break with traditional moral and political theorizing.
Dworkin calls Rawls' method a "constructive" model of theorizing, and he seeks
to distinguish it from the more traditional view, which he calls the "natural" model.
On the natural model, our particular intuitions about justice are treated s evidence
of a more general moral truth; the task of the theorist is to find this truth. On the
constructive model, by contrast, the role of the theorist is not to discover the truth
about justice, but to specify the general and publicly articulable conception of jus-
tice that best coheres with our particular intuitions. Dworkin illustrates this con-
trast with a somewhat peculiar analogy.
The natural model, he suggests, sees the
theorist like a natural historian confronting a pile of old bones; her task is to use
the evidence of the few available bones to reconstruct the entire animal s it truly
was. The constructive theorist, however, treats the available bones s if she were a
sculptor; the task is to create the most attractive animal shape she can. With this
awkward analogy Dworkin places great weight on the thought that a theory of
justice like Rawls' is supposed to play a practical rather than a theoretical or ex-
"Justice and Rights," in Taking Rights Seriously (Harvard University Press, 1977),
pp. 150205, especially pp. 159168. This essay first appeared in the University of
Chicago Law Review in 1973. Rawls' footnote in PL (pp. 9091) notes that Dworkin
was the first to describe A Theory of Justice s "constructive," though Rawls adds
that Dworkin's sense of constructivism differs from his own. Just how it differs Rawls
does not say.
Dworkin, "Justice and Rights," p. 160.
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390 Larry Krasnoff
, t
planatory role.
Rather than explaining why we have the particular moral and
political convictions that we have, or why we ought to have others, a constructive
theory attempts to summarize our convictions in a way that can be publicly stated
and understood.
The general theory thus serves s a public framework for moral
and political justification: citizens and legislators can appeal to its logic when criti-
cizing or defending specific policies. Such a framework thus guides public discussion
and reduces the potential for social confljct.
Clearly Dworkin is thinking not just of Rawls' theory of justice but also of his
own theory of judicial practice. On Dworkin's view, judges are not simply observing
what the law says and then reporting how it applies to the case at hand. Such a
view does not, for Dworkin, capture what occurs in hard cases where judges are
not obviously guided by the letter of a Statute of by the intentions of its legislators.
In such cases Dworkin holds that judges should (and do) Interpret the law by for-
mulating general moral and political principles that would best justify the particular
provisions of the Statute.
It does not matter that the Statute does not state the
general principles; nor does it matter that the principles would lead to particular
results that were never intended (or even that were explicitly opposed) by the au-
thors of the Statute. The judge's role is not to discover the principles but to con-
struct them so that the law can appear in a publicly justifiable light.
The analogy is awkward because it implies a contrast between truth and art that is sup-
posed to be clear but most assuredly is not. Dworkin says that the sculptor's Job is "to
carve the animal that best fits a pile of bones." Clearly the sculptor is not supposed to
worry about whether the animal she creates really existed. But does this mean that she is
free from the constraint of truth? She is still required to create an animal. What does this
mean? Does it have to resemble an animal that does exist? In what way? Could the work
be criticized because no such animal could really exist? What do we even mean by "could"
here? Presumably the requirement of animality places some constraint of correspondence
to reality on the sculptor. Yet is very difficult to say what the requirement entails. The best
(i. e. most aesthetically satisfying) sculpture might well succeed by self-consciously refusing
or mocking this truth requirement, at least in a selective way.
Even if we somehow managed to resolve these issues in the aesthetic context, we would
still be left with the question of whether any of this could be applied to the practical
context of public justification. Dworkin's analogy is supposed to go like this: just s the
sculptor is concerned not with truth but with art, so the constructivist is concerned not
with truth but with creating the best framework for public justification. But what does
"the best" mean here? The simplest? The most likely to reduce social conflict? Now, or
over the long term? The one that can be invoked by the largest set of citizens? Many
answers are possible here, and it seems difficult to choose among them, and to see how
the analogy with art helps guide this choice.
For a different criticism of Dworkin's analogy, see Barry, Theories of Justice,
pp. 275-282.
See Dworkin, "Justice and Rights,", p. 163.
This view has been defended in various guises throughout all of Dworkin's writings. Re-
cently Dworkin has called his view "law s integrity;" see especially Law's Empire (Harvard
University Press, 1986), chapters 6 and 7. And he has even more recently argued that it
implies a "moral reading" of the American constitution; see Preedom's Law (Harvard Uni-
versity Press, 1995).
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How Kantian is Constructivism? 391
This view of judicial Interpretation again places great weight on the practical
role that theory-construction can play. As Dworkin emphasizes, judicial behavior
in hard cases is not dictated solely by theoretical constraints that dictate how Stat-
utes are to be understood. Hard cases are precisely those in which the statute's
meaning has run out. The judge can proceed only because she takes on the practical
task of attempting to publicly j ustify the law. This feature of Dworkin's theory has
been intensely criticized: many have argued that judges in hard cases ought to inter-
pret Statutes extremely narrowly, thus deferring to democratically elected legisla-
For our purposes the key point is that what is at stake in this debate is the
practical role that judges should play. Against his critics, Dworkin is arguing that
for the law to be understood s authoritative, judges must Interpret it s subsuma-
ble under a set of publicly articulable moral and political principles.
If we had such a set of principles, Dworkin is suggesting, we would have achieved
a Rawlsian reflective equilibrium between established legal norms and our basic
moral judgments. Indeed, Dworkin's account is meant to explain why Rawls could
understand reflective equilibrium s a goal of normative theorizing. Once this equi-
librium was achieved, Dworkin takes Rawls to be saying, we would have everything
we needed for legal and political purposes: a shared framework for public justifica-
tion. And beyond these practical purposes, there is nothing more we can ask from
our theorizing. On this view, if a theory can perform the practical task of subsuming
our particular convictions under a scheine of general principles, no further question
of truth need arise.
Constructivism in Dworkin's sense, then, is the thesis that
the sole task of moral and political theory is to provide a public framework for
We could put this point in two different ways. On the one hand, we could say
that Constructivism seeks to perform just this practical task, leaving the theoretical
question of truth aside. This seems to be the force of Dworkin's original analogy.
If the sculptor can make an attractive animal out of the bones, it does not matter
whether the bones really belonged to such an animal though the natural historian
is perfectly free to investigate this further question. On this view, Constructivism is
agnostic in theory, caring only about practice. But, on the pther hand, if we can so
easily leave theory aside, if we hold that practice is the only relevant test, are we
not committed to the claim that this test is what determines the truth of a moral
or political theory? If we accept this further claim, we could say that Constructivism
is the view that the truth of such a theory is determined solely by its ability to
perform the practical task. On the first construal, the constructivist is neutral about
questions of realism in ethics; she leaves these questions aside to pursue a practical
See most notoriously Robert Bork, The Tetnpting of America: The Political Sedttction of
the Law (Macmillan, 1990). There are, of course, many questions about how we would go
about interpreting Statutes "narrowly,"
There are, once again, many unanswered questions about what it would mean for a theory
to perform this practical task. See note 15 above.
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392 Larry Krasnoff
task. On the second construal, however, the constructivist's ignoring of these ques-
tions commits her to a kind of anti-realism.
Rawls' recent writings have stressed the first construal; specifically, Rawls has
argued for a merely "political" liberalism that Swings free of all contested meta-
ethical and metaphysical issues.
But it is easy to see why many critics have taken
this claim to imply a metaphysical stance, and hence the second construal. Just s
his exclusion of religious conceptions of the good from the political conception of
justice hardly seems neutral in the struggle between secularism and religion, so
Rawls' bracketing of debates over moral realism hardly seems neutral toward the
worry that moral claims lack force and objectivity without realist grounding. It is
for this reason that many have come to understand constructivism s a form of
anti-realism (or at least a rejection of realism) in moral and political theory. In fact,
both senses of constructivism have been taken to imply alternatives to anti-realism.
Most notably, David Brink has defined constructivism in Dworkin's sense s a kind
of anti-realism, while Ronald Milo has defended constructivism s hypothetical
proceduralism s a non-realist alternative in meta-ethics. I will briefly examine each
See "Justice s Fairness: Political Not Metaphysical," Philosophy and Public Affair s 14,
pp. 223251; and PL, especially such passages s pp. 11 15, 9498.
Rawls has not been fully clear about the connections between constructivism s hypo-
thetical proceduralism and anti-realism, even where the latter is understood simply s the
bracketing of all questions of moral truth in favor of Dworkin's project of practical justifi-
cation. In KC and "Themes in Kant's Moral Philosophy" Rawls described constructivism
in Barry's proceduralist sense; though he stressed the contrast with rational intuitionism,
he made no reference to questions of moral realism. "Justice s Fairness" declared Rawls'
intention to leave questions of realism aside, but it did not take up the topic of constructiv-
ism. From these texts it made sense to assume that Rawlsian constructivism was simply
Barry's proceduralism, and that Rawls' agnosticism about metaphysics and moral realism
was another matter.
In PL, however, at pp. 9497 and 113 114, Rawls does emphasize the connections
between the two views. For the first time, the ignoring (not, allegedly, the rejection) of
realism is included s one of the features that distinguishes constructivism from rational
intuitionism. But this passage is hard to square with the important footnote on pp. 9091,
in which Rawls conspicuously refuses to endorse Dworkin's and Brink's accounts of con-
structivism and declares that only Barry (and Scanion) understand constructivism s he
does. But for Barry, Hobbes counts s a constructivist, because he grounds moral laws in
(self-interested) individual choice. And s I will argue in section IV, Hobbes' project is not
solely one of public practical justification, and his account may look very much like moral
realism in the contemporary sense.
What can we make of all of this? I would say that Rawls himself is committed to both
forms of constructivism, to both hypothetical proceduralism and to the bracketing of moral
realism in favor of public theory-construction. But he has generally applied the term "con-
structivism" only to the first view, perhaps because he has not been certain about the
connections between the two views. I give my own account of the ways in which the
views are and are not connected in section IV. In a sense, this account will explain Rawls'
uncertainty, for I will argue that whiie there is no necessity connection between the two
views, there is a connection under a certain understanding of theorizing that Rawls in fact
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Hovv K a n t i a n i s Co n st r u c t i v i sm? 393
of t hcsc vi ews not to ev a l u a t c t hc c l a i m t ha t c o n st r u c t i v i sm i mpl i c s a met a -
et hi c a l vi cw, bu t i n st ca d t o c o n f i r m t ha t such mc t a -et hi c a l i n t er pr c t a t i o n s con for m
t o my di st i n c t i o n bct wccn t wo fo r ms of c o n st r uc t i v i sm.
For Br i n k, c o n st r uc t i v i sm i n ct hi cs i s t hc vi ew t ha t mo r a l fa ct s or t r u t hs are
co n st i t ut ed by o ur cvi dcn cc for t hc m.
Thi s t c r mi n o l o gy i s vcry di ffc r c n t fr o m
Ra wl s' or Dwor ki n ' s, a nd t o u n dc r st a n d i t wc sho ul d bcgi n wi t h Br i n k' s own a c-
coun t of mo r a l r ca l i sm. Li kc Ri c ha r d oyd a n d Pet er Ra i l t o n , Br i n k a rgues t ha t
mo r a l t heor i es ca n be t r u e i n t he sa me wa y t ha t sci cn t i fi c t heor i es a r e t r ue: t hey
a r e n a t u r a l i s t i c expl a n a t i o n s, i n t hi s casc of hu m a n beha vi or.
In t he mor a l case,
wha t needs t o be c xpl a i n c d i s our ha v i n g cer t a i n mor a l beli efs a n d pract i ces, a n d
for Br i n k t hi s i s expl a i n c d by t hc vi ew t ha t t hcsc beli efs a n d pract i ces c o n t r i but e t o
t he ev o l u t i o n a r y success a nd f l o u r i s hi n g of hu ma n bci ngs. Thi s vi ew i s r ea l i st be-
ca use t hc c l a i ms a bo ut ev o l u t i o n a r y success a n d f l o u r i s hi n g a re t a ken t o be t r ue n o
ma t t er wha t hu m a n bei ngs ha ppen t o t hi n k a bout t hem. The cl a i ms a r e i n depen den t
of our beli efs a bo ut t hem; wha t i s best for hu ma n bei ngs i s si mpl y a n a t u r a l fact ,
l i ke t he mot i on s of t he pl a n et s or t he la ws of t her mo dyn a mi cs. Our mor a l beli efs
a re t hus o n l y t he evidence for t he u n der l yi n g n a t u r a l fact s. For Br i n k, a mor a l
t hcor y i s rea li st i f i t holds not on ly (1) t ha t t here a re mor a l t r ut hs but also (2) t ha t
these t r u t hs are i n depen den t of our evi dence for t hem. But si nce t hi s evi dence i s
preci sely our mor a l beli efs, (2) i s r ea lly t he cl a i m t ha t mor a l t r ut hs a re i n depen den t
of our mor a l beli efs.
A con st ruct i vi st , for Br i n k, a t t empt s t o hold (1) whi l e den yi n g (2). That i s, con-
st ruct i vi sm i s t he vi ew t ha t mora l cla i ms a dmi t of t r ut h, but t ha t t hei r t r ut h i s not
i n depen den t of our mora l beli efs. Inst ea d, t hei r t r ut h i s const i t ut ed by those beli efs:
a mor a l t heory i s an a t t empt t o su mma r i ze those beli efs i n an especi a lly coherent
way. This i s of course wha t Dwor ki n and Ra wls are t r yi n g t o do i n or ga n i zi n g our
mora l commi t men t s i n t o a recognized scheme of pu bl i c j u st i fi c a t i o n . Aga i n , Ra wls
a nd Dwor ki n a re o ffi c i a l l y commi t t ed on ly t o showi n g how mora l cl a i ms mi ght be
j ust i fi ed for publ i c, poli t i ca l purposes. The sense i n whi ch t hey mi ght be t r ue i s
See Br i n k, Moral Kealism and the Foundations of Ethics, especi ally pp. 1422, 3335,
139143, 303321. The expli ci t defi n i t i on of con st r uct i vi sm is given on pp. 1920.
Bri nk's a ccount closely follows Ri cha r d Boyd, "How to Be a Moral Reali st ," in Gcoffr ey
Sayre-McCord (ed.), Essays on Moral Realism (Corn ell Un i v cr si t y Press, 1988).
Br i n k, Moral Realism and the Foundations ofEthics, Cha pt er 8; Boyd, "How to e a Mora l
Reali st ;" Peter Ra i lt on , "Moral Reali sm," Philosophical Review 95 (1986), pp. 163-207.
One mi ght object t ha t t hi s t a lk of evi dence u n f a i r l y bi ases t he debat e a bo ut mor a l r ea li sm
t owa rd Bri nk's siele, by a lr ea dy a ssumi n g t hc la n gua ge of science. Lat er i n t hi s section I
di scuss Ron a ld Milo's object i on t ha t t he n ot i on of evi dcn ce-i n dcpen dcn ce does not servc
even Bri nk's own purposes.
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394 Larry Krasnoff

simply left for others to explain. But since Brink does not t hink justification
can be so easily separated from t rut h, and since he sees t hat neither Dworkin
or Rawls has any interest in assimilat ing moral to scientific explanation, he
concludes t hat constructivism in Rawls' and Dworkin's sense is a kind of anti-
realism in ethics.
It should be clear by now that for Brink, constructivism is essentially a coherence
theory of t rut h applied to our moral beliefs.
Hence there is a sense in which
Brink's definition of constructivism is much wider than Dworkin's. For Dworkin,
the goal of coherence is tied to the specific practical project of creating a basis for
public just ificat ion. But one can be a coherence theorist without endorsing this
part icular project. Perhaps a Standard of public just ificat ion is already there, and
the task of the theorist is to unmask its pretension to be grounded in an independent
moral reality, or to reveal that our moral beliefs have an ideological function. There
is no guarantee that we will have justified our moral beliefs when we understand
how they cohere. Perhaps we will find the basis for their coherence disturbing and
unattractive. Brink clearly wants to link Rawls' and Dworkin's constructivism to
what is more commonly called "social constructionism": the view that moral and
political (and perhaps scientific) beliefs are mere artifacts of socialization, serving
(on the most familir accounts) the interests of some privileged class or group.
This skeptical conclusion, however, is alien to Dworkin and Rawls (and certainly
to Kant s well). It is certainly not required by the rejection of the claim that moral
beliefs refer to an independent moral reality. Hence in what follows I will be leaving
it, and Brink's wider definition of constructivism, aside.
While Brink finds anti-realism in the second sense of constructivism, in Dwor-
kin's project of public justification, Ronald Milo finds it in the first sense of con-
structivism, in Barry's hypothetical proceduralism. Though Milo notes that Rawls
has resisted any meta-ethical claims, he argues that the Dewey Lectures do suggest a
coherent and attractive meta-ethical view: "contractarian constructivism."
truths, Milo suggests, are simply "truths about what norms and Standards hypothet-
ical contractors would have reason to choose" for an "ideal social order."
when Rawls' hypothetical contractors choose their principles of justice, there is no
furt her question about whether these principles are true: their being chosen is what
makes or constitutes their t rut h. Moral truth is constructed by persons, not found
in nature.
This point is noted by Ronald Milo, "Contractarian Constructivism," Journal ofPhiloso-
phy 112(4), April 1995, p. 193 n.
Brink calls Dworkin and Rawls "nonrelativist" constructivists; s "relativist" constructiv-
ists Brink cites a number of (not very recent) sociologists and anthropologists whose views
bear important resemblances to contemporary social constructionism. See Brink, Moral
Realism and the Foundation of Ethics, p. 20.
Milo, "Contractarian Constructivism," Journal of Philosophy 112(4), April 1995,
pp. 181-204.
Milo, "Contractarian Constructivism," p. 186.
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How Kantian is Constructivism? 395
Milo is hesitant to call this view anti-realist; instead he sees it s an alternative
to both the realism of Brink, Boyd and Railton and the anti-realism of non-cogniti-
vists who hold that "alleged moral facts are nothing more than reflections of the
judger's affective/conative reactions to nonmoral states of affairs."
constructivism holds that there is a fact of the matter about what the hypothetical
contractors would choose; their judgments are not merely subjective. Indeed, our
current moral judgments may be wrong about what the hypothetical contractors
wpuld choose; in this sense moral truths are independent of the "evidence" provided
by our current moral beliefs.
Thus contractarian constructivism counts s realist
even in Brink's sense. But s Milo rightly notes, something seems lost here, since
the choices of the hypothetical contractors are not natural facts of the sort that
Brink's scientific realism seeks to identify. Here Milo argues that Brink's definition
of realism s evidence-independence seems more confusing than helpful. Even a
"crude subjectivism" that defines the good in terms of the objects of individual
desire might count s realist in this sense, because what any individual desires is an
"objectively determinable matter," independent of her or our current moral be-
To capture the sense in which contractarian constructivism and this crude sub-
jectivism are not realist, Milo suggests the notion of stance dependence. A truth or
fact is stance dependent "just in case it consists in the instantiation of some property
that exists only if some thing or state of affairs is made the object of an intentional
Milo, "Contractarian Constructivism," p. 190.
Milo, "Contractarian Constructivism," p. 190. This claim to objectivity, grounded in the
ideality of the contractors, does raise the question of how we are supposed to characterize
the beliefs, motivations and choices of the contractors without compromising the objectiv-
ity of the conception. Milo agrees that this is the most pressing objection to a contractarian
theory of any kind: "that no normatively neutral description of the contractors and their
circumstance is sufficient to make it seem plausible that a particular set of moral principles
would be agreed on by them" (p. 196). Milo responds in the following way: though the
characterization of the contractors can never be "completely normatively neutral," it can
"avoid begging any controversial moral questions" (p. 197). That is, s long s one or more
sets of hypothetical contractors can be shown to choose certain central and agreed-upon
moral norms, contractarian constructivism has done its Job of explaining the basis of mo-
rality. A meta-ethical theory, Milo suggests, should not try to settle controversial moral
issues; rather it should show how core moral notions can be understood s true. If a
contractarian can do that without providing her hypothetical contractors with beliefs that
prejudge controversial moral issues, then no more is required. Milo freely admits that this
model assumes rather than proves the truth of the core moral notions. But, he argues, a
meta-ethical theory's Job is to provide not "a proof of the truth of the paradigmatic moral
principles" but rather "a way of explaining what their truth and objectivity might be
thought to consist in" (pp. 201202).
Whatever one thinks of this reply, my vvorry here is somewhat different: if there are
many ways of characterizing the nat ure and choices of the ideal contractors, there may be
a way of explaining the choices of the contractors that counts s realist in both Brink's
and Milo's own senses. I discuss this possibility in section IV below.
Milo, "Contractarian Constructivism," pp. 190191.
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396 Larry Krasnoff
psychological state (a stance), such s a belief or a conative or affective attitude."
On this definition, crude subjectivism is stance dependent because its definition of
goodness depends on the desires of individual agents. Contractarian constructivism
is also stance dependent because its definition of goodness depends on the beliefs
and consequent choices of the hypothetical contractors. But Brink's moral realism
is stance independent, because its claims about human evolutionary success are
independent of any person's attitude toward those claims.
If Milo is right (s I think he is) that the notion of stance-dependence can be
helpfully substituted for Brink's notion of evidence-dependence, we can summarize
the possible connections between constructivism and anti-realism in the following
way. Constructivism in the first, hypothetical proceduralist sense suggests anti-real-
ism because it suggests Milo's claim that moral truths are nothing more than the
chosen principles of hypothetical persons. Constructivism in the second, Dworkin-
ian sense suggests anti-realism because it suggests the claim that Brink wants to
oppose, that moral truths are nothing more than certain moral beliefs arranged in
a suitably coherent way. Both of these views about moral truth are clearly stance
dependent and thus, if not anti-realist, at least opposed to realism in either a Pla-
tonic or contemporary scientific sense. Again, I take no view here about whether
these inferences from the two forms of constructivism to anti-realism are justified.
My concern is simply to show that they are inferences; despite their often very
different terminology, these meta-ethical understandings of constructivism do not
undermine my claim that constructivism has been understood in two important
At this point, however, we must ask: are the two understandings of constructiv-
ism really so distinct? So far I have stressed the differences between them. One
emphasizes a methodological device in normative ethics: the use of hypothetical
procedures for constructing moral or political principles. The other emphasizes a
view about how normative theories are justified: by constructing a publicly shared
Milo, "Contractarian Constructivism," p. 192.
This conclusion may seem odd, since Brink's favored candidate for a realist moral theory
is utilitarianism. Utilitarianism would seem to be stance dependent, because it proceeds
from the desires or preferences of individuals. So how could it be realist? Hasn't Milo
gotten Brink wrong here?
Here we must remember that Brink favors what he calls objective utilitarianism, which
proceeds from our rationalized or ideal preferences, and then explains these in terms of a
naturalistic, evolutionary account of human flourishing. What we would (really) prefer is
simply what would objectively cause human beings to flourish from an evolutionary stand-
point, and this can be analyzed in a stance-dependent way. Or so I take Brink to be saying.
If he is not saying something like this, it is hard to see how utilitarianism could be realist
at all.
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How Ka n t i n n is Const ruct i vi sm? 397
Framework for our moral and poli t i cal convi ct i ons. The two underst andi ngs focus
on di f f e r e n t fcat urcs of Rawls' theory of just i ce. The fi rst concentrates on the origi-
nal posi t i on, whi l e t he second Stresses t he mct hod of reflective e q ui l i b r i um and t he
desi re for a merely poli t i cal concept i on of j ust i ce. But if bot h these views have been
t aken t o i mp l y a nt i -re a l i sm, we must cnt ert ai n t he possi bi li t y t hat t he t wo concep-
t i ons are not f ul l y separable.
We can sharpen t hi s possi bi li t y by suggesting t hat cont ract ari ani sm or hypot het i -
cal procedurali sm mi ght be an especi ally at t ract i ve method for a t heory t hat takes
on Dworki n' s pract i cal task of pub l i c j ust i f i ca t i on . If our t heory is supposed to
make sense of ci t i zens' convi ct i ons in a ma n n e r t ha t t hey can accept and employ in
publi c discussion, would it not make sense to represent the principles favored by
the t heory s chosen by the ci t i zens themselves? And, conversely, if we hold t hat
j ust i fi e d pri nci ples are j ust those t hat i ndi vi dua l s would freely choose, isn't t he
general and publi c acceptance of pri nci ples the best sign t hat they are j ust i fi e d? And
isn't all of t hi s consistent wi t h an ant i -reali sm t hat holds t hat moral principles have
no t rut h outside of the choices (and the beliefs t hat prompt the choices of i ndi vi d-
uals? The normat i ve theory, the method of just i fi cat i on and the claims about t rut h
seem to stand or fall together.
In fact I t hi nk this argument is mistaken; if it succeeds, it does so only under
specific, contingent conditions. It might be that the best public just i fi cat i on of a
society's convictions was one t hat described the citizens s choosing their own prin-
ciples. But it might also be the case that a society's convictions were best summa-
rized by a theory that held that those principles came from God or from nature.
Such a theory might have more connection to citizens' actual views, and might
also strike those citizens s having more objective force. One might object that
understanding the appeal of God- or nature-centered theories in this instrumental
way would itself diminish their plausibility: if we appeal to God only to guarantee
public consensus, can we really be said to believe in God any more? But this objec-
tion presumes that the citizens of such a society, or even its moral theorists, would
understand their theoretical convictions in this instrumental way. Even if Dworkin
is right that moral theory always serves to publicly summarize the convictions of a
society, that does not change the fact that within a particular society, citizens and
theorists may understand themselves and their theorizing in very different manners.
The connection between Dworkin's practical justification and contractarianism
could hold only under conditions of wide publicity, in which theorists and citizens
alike came to understand theorizing in the practical or instrumental way. Perhaps
our society is one in which such wide publicity obtains: indeed Rawls and Dworkin
seem to think that it is, and hence they build strong publicity requirements into
their theories. These requirements are necessary because both Rawls and Dworkin
take themselves to be responding to a condition of widespread moral plurali sm and
disagreement, in which citizens of all kinds, having lost faith in or public access to
a single, externally grounded morality, need to affi rm the theory-construction s
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398 Larry Krasnoff
their own. But this condition (and understanding) of moral pluralism is hardly a
necessary one.
Focusing on the publicity condition can also show why the move from merely
practical j ustification to anti-realism is j ust s problematic. It is certainly possible
to hold that the search for moral truth is very different from the process of public
j ustification, and even that publicly justified norms might themselves be very dif-
ferent from objective moral truths. Leo Strauss, most notoriously, argued that pub-
lic morality requires religious or rnythological backing, a backing that philosophers
or theorists know to be a sham. Strauss held a classically realist account of human
nature, and he argued that moral truths were objectively derivable from this ac-
count. But he also argued that such truths were available only to very few, and that
a very different method was required for public justification. Not surprisingly,
Strauss was a vehement Opponent of publicity requirements. But even Rawls' Pub-
licity requirement does not extend to the question of moral truth, at least in his
recent writings. For Rawls, publicity is required only for a political conception of
justice, and different persons are free to settle the question of moral truth within
their various comprehensive doctrines.
A comprehensive liberal, for Rawls, will
hold the public, liberal conception of justice to be the true one; she may well, like
Milo, invoke an anti- or non-realist conception of moral truth to support this claim.
But a traditional religious believer will more likely hold a realist account of moral
truth, and regard the public, political justification not s true, but s merely a
practical (though morally justified) accommodation to the conditions of modern
pluralism. Like Strauss, the Rawlsian religious citizen will sharply separate the
content of moral truth from the content of public morality. This Separation of truth
from public justification is not just permitted but even required by Rawls' idea of
overlapping consensus.
I have argued that the inference from constructivist justification to contractarian-
ism, or to anti-realism, seems to require outside support in the form of a publicity
requirement. But the inference in the other direction seems even more problematic.
Even if one holds that j ustified ethical principles are ones that would be freely
chosen, the manner in which this free choice is made seems open to a strongly
realist Interpretation that Swings free of any project of public justification. Hobbes,
for instance, represented his laws of nature ("the true moral philosophy") s just
what prudent individuals would choose in his state of nature.
Yet he also thought
that what made these choices prudent was that they were conducive to the well-
being (or at least to the self-preservation) of human beings. Hobbes derived these
conclusions about well-being from what he took to be a scientific account of human
This account, and the conclusions about well-being that supposedly fol-
See PL, pp. 125-129.
Hobbes, Leviathan (ed. M. Oakeshott, Collier, 1962), Part l, chapter 14-15, pp. 103-124.
See Hobbes' chart of the sciences in Part I, chapter 9 of Leviathan, pp. 70-71, in which
ethics is defined s a branch of physics.
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How Kant i an is Constructivism? 399
low from it, are meant to be strongly objective: they are supposed to be true no
matter what people happen to think of Hobbes' account. That many religious be-
lievers rejected his account of human nat ure did not and should not have dissuaded
Hobbes: he thought his conclusions about morality and its relation to human nature
were true nonetheless. Of course, Hobbes hoped that his account would be publicly
convincing, that it would do something to prevent political upheaval and civil war.
But the content and t rut h of his theory can be separated from this practical aim.
Turning to the question of realism, one might object that Hobbes ridiculed the
ancient notion of an objective highest good, and that he explicitly relativized the
notion of the good to the objects of individual choice.
These objects of choice
are in t urn dependent on the beliefs and desires of the individuals. All of this might
seem grounds for rejecting the idea of Hobbes s a moral realist, since the good
does depend on individual beliefs. But this is misleading, since for Hobbes the
moral good is specifically concerned with self-preservation, and self-preservation
can be understood and measured without reference to anyone's beliefs. A moral
requirement is one that if followed would lead to the continued existence of human
beings. In this sense Hobbes has strong affinities with contemporary moral realists
like Brink, who understand morality s grounded in scientific claims about the
evolutionary success and flourishing of human beings. It is important here not to
identify constructivist anti-realism with the modern rejection of a Platonic object
of the good s inconsistent with a scientific ontology. Hobbes played a key role in
that rejection, but he nonetheless understood ethics s grounded in scientifically
redeemable claims. His contractarianism may seem to point toward Milo's anti-
realism, but his scientific aspirations bring him closer to Brink's realism.
Hobbes, Leviathan, Part I, chapter 6, pp. 4755.
This suggests that Milo's ideal contractarianism may not guarantee stance-dependence and
hence an alternative to realism. As I noted above (note 29), there are many competing ways
to characterize the ideal contractors. What makes them ideally suited to choose? One can
answer this question in a way that presumes a realist account: we select these contractors
because of their insight into human evolutionary flourishing. That would reduce Milo's
supposedly constructive contractarianism to Brink's objective utilitarianism, which is sup-
posed to be realist or stance independent (see note 32). Milo himself notes that the ideal
observer version of utilitarianism has close parallels to his own view ("Contractarian Con-
structivism," pp. 191 192). But if we equip the ideal observer with the sort of scientific
knowledge that Brink invokes, it is hard to see how the ideal observer theory does not end
in realism. Something like this, I think, is also true of Hobbes' view, if one Stresses his
scientific aspirations.
This suggests a more general observation about the relation between contemporary
American moral realism and the empiricist tradition of Hobbes and Hume. The latter
tradition has often been understood s the main example of non-cognitivism. But neither
Hobbes nor Hume simply declared moral beliefs to be non-rtional attitudes and left it at
that. They went on to explain how these beliefs or attitudes functioned in social life. When
these claims about social life are understood s naturalistic explanations, s is wholly
consistent with Hobbes' and Hume's scientific aspirations, these supposed non-cognitivists
come out very close to Brink's contemporary moral realism. Is Hume a moral sense theorist,
or a ut i li t ari an? Is he a skeptic, or a nat urali st ? These distinctions may not be so sharp,
and these questions may not be so helpful.
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400 Larry Krasnoff
; {
l conclude that constructivism s contractarianism and constructivism s the pro-
ject of public justification are two distinct theses, and that neither is equivalent to
anti-realism. The second sense of constructivism does not follow from the first, and
the first follows from the second only ander a strong publicity condition. Focusing
on this publicity condition, however, will turn out to be essential to understanding
whether Kant can count s a constructivist in either of these contemporary senses.
It is to this topic that I now turn.
Does Kant hold the view that moral or political principles are just those that would
emerge from a hypothetical procedure? I will begin with Kant's moral philosophy,
since it is there that Kant famously offers the categorical imperative s a test for the
morality of our actions. In an important essay, "Themes in Kant's Moral Philosophy,"
Rawls does attempt to Interpret the categorical imperative (hereafter simply the CI)
s a constructive procedure in the sense outlined in section I.
Closely following the
passage I quoted from the Dewey Lectures, Rawls writes that "an essential feature of
Kant's moral constructivism is that the first principles of right and justice are seen s
specified by a procedure of construction (the Cl-procedure) the form and structure of
which mirrors our free moral personality s both rational and reasonable."
are all the elements of constructivism in Rawls' and Barry's sense: the Substantive con-
ception of the person, the procedure of construction, and the claim that the outcome
of the procedure delimits the content of morality.
Still, Kant's theory fits uneasily with all three of these features of constructivism.
It seems misleading to say that for Kant moral principles would be those chosen by
a specified set of persons. First, the CI does not produce moral principles; instead
it serves s a negative check on the specific principles or maxims that individuals
bring to it. As Barbara Herman points out in her reply to Rawls' essay, since max-
ims can vary widely with the specific situations of persons, there seems no reason
to assume that the categorical imperative will produce a uniform set of principles
or duties for a society.
All that is required is that all individuals apply the pro-
See note 4 above.
Rawls, "Themes in Kant's Moral Philosophy," p. 97.
Barbara Herman, "Justification and Objectivity: Comments on Rawls and Allison," in
Frster, Kant's Transcendental Deductions, pp. 131 141, especially pp. 138 141.
Herman herseif does not take this to be an objection against Rawls' Interpretation of
Kant s a constructivist. Perhaps this is because she understands constructivism in an idio-
syncratic way. Herman's book The Practice of Moral Judgment (Harvard University Press,
1993) contains few references to constructivism, but it does at one point declare (p. 215
and 215 n.) that Kantian constructivism is the claim "that formal rational constraints [can]
be or constitute a conception of value" Herman's emphasis is on the way that the CI
structures all our deliberations, enabling us to arrive at or "construct" what she calls a
"unified deliberative field" (p. 182) in which moral and prudential concerns come to be
integrated into a complete conception of our individual good. At p. 182 n. Herman cites
Rawls' "Themes in Kant's Moral Philosophy," emphasizing not the explicit account of
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How Kantian is Constructivism? 401
cedure in a conscientious way, that they make the requirement of universalizability
an essential constraint in their deliberations. Second, the CI does not require any
sort of hypothetical choice. Rather than asking what principles a set of persons
would choose, Kant asks whether all persons could choose the particular maxim
that a particular individual hopes to follow. As Onora O'Neill has emphasized,
what is at issue here is not hypothetical agreement, but possible agreement.
finally, s O'Neill has also emphasized, the possible agreement is not that of a set
of hypothetical individuals, but that of the actual individuals of this world.
categorical imperative asks whether we can imagine the universalization of our
maxim in our world. So it seems Strange to say that the Cl-procedure employs a
particular conception of the person. Clearly our commitment to employing the
procedure requires that we are the sort of persons that are willing and able to apply
the CI despite our potentially opposing desires. But there is no need to assume this
conception of ourselves during the application of the procedure itself. The CI is
not a procedure in which specifically described individuals choose in a specifically
described way.
All of this suggests that the CI Stands at some distance from a Rawlsian hypothet-
ical procedure. Rather than describing a particular conception of the person, the
CI asks us to imagine actual individuals in the actual world. Rather than asking
these individuals to make a hypothetical choice, the CI asks us whether it would
be possible for them to act on a certain maxim. And rather than producing a set
of shared principles or duties, the CI provides only a shared method for evaluating
individual maxims. Hence Kant's moral philosophy does not conform to any of the
three features of constructivism specified by Rawls.
This conclusion sounds harsh, and to a certain extent it is unfair. Like the origi-
nal position, the CI is a formal test for evaluating maxims, and it is meant to
serve s the unique source of moral justification. But if this is enough to get us to
constructivism, then it is hard to see that constructivism describes anything very
distinctive in moral theory. Almost any theory that was concerned with justification
(including utilitarianism and the vague autonomy-based theory I imagined in secti-
on I) would meet this Standard: it would explain how ethical claims could be justi-
fied, and thus it would provide a formal Standard for evaluating individual agents
constructivism but the prior discussion (pp. 9095) in which Rawls argues that Kantian
agents arrive at progressively more complete conceptions of the good.
If this is constructivism, it is certainly Kantian. Herman may be overly optimistic about
the unity of the seif and its deliberative field, but she is certainly right that for Kant the
CI is meant to structure all our deliberations. Still, Herman's definition of constructivism
has little contact with Rawls' explicit discussions or with the other accounts I have been
considering here. The idea of agents constructing. their own complete conceptions of the
good may be a promising one, but in current terms Herman's understanding of constructiv-
ism remains idiosyncratic.
Onora O'Neill, Constructions of Reason (Cambridge University Press, 1989), essays 6
and 11.
O'Neill, Constructions of Reason, p. 217.
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402 Larry Krasnoff ,
in individual circumstances. If it could not do these things, the theory could hardly
claim to understand moral justification at all. Any Standard of justification is "con-
structive" in that it supplies the warrant for individual claims. It seems unhelpful
to use the term "constructivism" to identify this feature of a theory.
The CI is not, then, a constructive procedure in the sense that Rawls needs.
However, I do think a case can be made that the CI is a constmcted procedure,
i. e. that it is derived from a kind of construction. If this case can be made out,
then Kant's moral philosophy can approach constructivism in the RawlsBarry
sense. I have presented this argument in fll detail elsewhere; here I can provide
only a sketch.
In the first chapter of the Grundlegung, Kant derives the CI from an analysis of
the motive of duty.
He argues that an agent committed to do what is right could
act on one and only one principle or law: act only on maxims that could be univer-
salized. But why is this so? Kant's explicit arguments rest on a rejection of principles
that are based on particular desires. Actions done out of duty are unconditionallyl
necessary. They are absolutely required by reason and thus justified in the fllest
sense. But desire-based principles cannot be required in this sense: they are relevant
only for agents having the particular desires, and thus only contingently justifiable.
So the principle of duty cannot be based on any specific desire. From this negative
argument Kant concludes that the principle of duty can only be the CI, the Formula
of Universal Law. But this inference seems unsupported and perhaps unjustified:
couldn't there be other principles that do not depend on specific desires?
can we show that the CI is the uniquely justified rational principle?
Interestingly, however, Rawls did use the term "constructive" in this extremely weak way
in A Theory of Justice. (I am indebted to Onora O'Neill for pointing this out.) He under-
stood a normative theory s constructive if it provided a clear procedure to settle disputes.
On this view, both justice s fairness and utilitarianism are constructive, while pluralistic
and intuitionist views are not, since the latter do not teil us how to settle conflicts between
fundamental values.
My own view is that any definition of constructivism under which utilitarianism counts
s constructivist is misleading, and too weak to be of real explanatory use. For in the
utilitarian calculus, the imagined totality of agents do not construct anything. They simply
choose s they normally would, s separate individuals, and we then allow the sum of
these collective choices to count s the Standard of moral justification. Our justification is
constructed, but it is not constructed by the totality of agents. Rather it is constructed by
the individual moral agent imagining what the totality of agents would choose. But any
moral agent employing any Standard of justification is "constructing" the justification for
particular claims. So we are back to the thought that constructivism is simply a view in
which some positive Standard of justification is advanced. I take the fact that Rawls has
abandoned this usage from A Theory of Justice to be evidence that he would agree with
my claim that this sense of constructivism is too weak to be helpful.
"What Kind of Law Can This Be? Kant's Derivations of the Categorical Imperative?,"
unpublished manuscript.
As emphasized in Christine M. Korsgaard, "Kant's Analysis of Obligation: The Argument
of Foundations l," The Monist 72 (1989), pp. 311-340.
That there are such principles has been argued by both Allen Wood, "Kant on the Rational-
ity of Morals," Proceedings of the Ottawa Congress on Kant in the Anglo-American and
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How Ka nt i a n is Const r uct i vi sm? 403
To f i l l t hi s gap in Kant's t hi n ki n g I have proposed the f ol l owi ng argument . Sup-
pose t hat we seek a pri nci pl e t hat coul d carry uncondi t i onal necessity, s the prin-
ci pl e of dut y is supposed to do. Such a pri nci pl e woul d be j ust i f i ed f or al l agents
in al l circumstances, in the way t hat our desire-based pri nci pl es are not. Suppose
al so t hat we cannot f i nd any pr i nci pl e t hat we can j ust i f y in this way. Yet we stil l
hope f or such a pri nci pl e: we stil l bel ieve t hat there ought to be a pri nci pl e t hat
carries the uncondi t i onal necessity i mpl i ci t in our idea of dut y s uncondi t i onal
moral Obl i gat i on. If we want to express our commi t ment to t hi s idea, we can do
so onl y by act i ng on those pri nci pl es t hat we do have reason to act on (our desire-
based pri nci pl es) in a way t hat hol ds open the possi bi l i t y t hat these principl es might
be j ust i f i ed to al l agents. I cannot assure such j ust i f i cat i on mysel f (I cannot demand
t hat others act on my desire-based pri nci pl es), but I do know t hat such j ust i f i cat i on
is impossibl e if al l agents cannot act on my principl es. Thus if I want to express
my commi t ment to the idea of a f ul l y j ust i f i ed principl e, I can do so j ust by acting
onl y in ways that can be made into uni versal l aw.
The key f eature of this reading is t hat the CI is not the sol e rat i onal l y justif ied
principl e, but rather the uni que practical expression of agents committed to the
idea of rat i onal l y j ust i f i ed principl es. On this view, the CI is j ust that principl e t hat
agents committed to the idea of unconditional moral Obl igation woul d choose to
act on. In this sense the CI is the product of a construction: it is chosen by a certain
sort of person, and that choice provides the content f or moral ity. Stil l , there is no
procedure of construction here that pl ays a rol e in everyday moral argument. The
CI itsel f pl ays that everyday rol e, and by the time the CI appears the construction
has al ready occurred. Insof ar s ordinary moral reasoners st andardl y are taught
and understand how to appl y the CI, the constructive argument wil l be of l ittl e
practical use. That argument is f or the phil osophical l y incl ined, those who want to
understand the sense in which moral ity and the CI are rational l y justif ied. Ordinary
moral agents are not troubl ed by skepticism about moral ity, Kant thinks, and thus
they do not need constructivism. So al though Kant might be read s a kind of
constructivist, he does not of f er any sort of hypothetical procedure that guides
ordinary moral thinking in the sense that Rawl s' original position is meant to do.
The irrel evance of the construction to ordinary thinking al so suggests that Kant's
theory wil l have l ittl e to do with the second sense of constructivism, with Dworkin's
practical task of publ ic justif ication. But bef ore turning to this topic, I wil l concl ude
this section by suggesting how the anal ysis I have given might be extended to Kant's
pol itical phil osophy.
Once again, Kant's pol itical phil osophy might seem a cl ear exampl e of con-
structivism in the Rawl sBarry sense, since Kant expl icitl y invokes the social con-
tract s a test f or pol itical justice. But, in cl ose anal ogy with his moral phil osophy,
Kant regards the contract not s a hypothetical procedure that determines justice,

Continental Traditions (University of Ottawa Press, 1976) and Henry Al l ison, Kant's The-
ory of Freedom (Cambridge University Press, 1990), pp. 205206.
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404 Larry Krasnoff
but radier s a negative check against possible injustice. Rather than saying that
justice is what all individuals would agree to, Kant again holds that no principle is
just unless all individuals could agree to it.
And, somewhat notoriously, Kant
does not explain how we should determine what cannot be agreed to. His account
of the content of the "agreement" is meager or non-existent compared to Hobbes'
or Locke's. In fact contemporary constructivisms like Rawls' and Habermas' can
be understood s attempts to fill this gap in Kant's political philosophy. Rawls'
original position and Habermas' practical discourse are meant to provide Kantian
citizens with Substantive guidance for their thinking about justice. Our agreeing to
political principles is now defined in terms of agreement in the hypothetical context.
And since Kant does not specify any hypothetical context to Supplement the bare
idea of possible agreement, it seems difficult to describe Kant's political philosophy
s constructivist in Rawls' and Barry's contractarian sense. At best Kant
a failed constructivist, one who invoked the social contract but did not spell oufits
terms in the way that Rawls and Habermas try to do.
Elsewhere I have defended Kant's political philosophy from this implicit charge
of emptiness by suggesting that when Kant speaks of laws that cannot be agreed to
by all, he means for us to check our political norms or social policies against a
robust ideal of political citizenship.
Kant repeatedly Stresses that laws must be
capable of publicity so that they may be criticized by citizens who owe no allegiance
to any established authority. Implicit here is an ideal of political agency: the notion
that it is possible for ordinary citizens to speak out against unjust authority in a
way that will affect that authority.
This ideal may seldom be realized in our
world, but it must be possible if publicity is to be of value. Hence the possibility
of political agency provides the content for Kant's appeal to the social contract: a
law could not be agreed to by all if it (perhaps together with other policies) denies
anyone the right or ability to be a political agent, to engage in meaningful public
criticism. The role of this principle of publicity is to provide a formal, liberal Stan-
dard of justice, one that can be affirmed by all citizens regardless of their ends,
their conceptions of the good. For all that is affirmed in this conception is a certain
ideal of citizenship, of political participation.
Whether such a "formal liberalism" can serve s a Standard of justice is not my
concern here. For now what matters is the way in which this Kantian principle of
publicity, like the CI, can be seen s a constructed (rather than a constructive)
procedure. That is, we can say that the principle of publicity is an answer to the
Kant, "On the Old Saying: That May Be True in Theory, But It Will Never Work in
Practice," 304. This and all subsequent references to Kant refer to the edition of the Prus-
sian Academy.
"Formal Liberalism and the Justice of Publicity," Proceedings of the Eighth International
Kant Congress, March 1995, pp. 61-69.
This notion of Kantian political agency is developed in "What Is Enlightenment?" and in
the second section of The Conflict of Paculties. See my "The Fact of Politics: History and
Teleology in Kant," European Journal of Philosophy 2 (1994), pp. 22-40.
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How Kant i an is Constructivism? 405
question: what principle could a set of individuals with potentially different ends
choose s a Standard of public rule? Since these individuals could not appeal to the
value of their ends, they could only choose a principle that invoked their equal
Standing to participate in political life.
As wi t h Kant's moral philosophy, this
construction is not meant to be continually repeated in ordinary political discourse.
Unli ke Rawls' original position or Habermas' idea of a practical discourse, the
principle of publicity is not a hypothetical choice Situation in which ordinary citi-
zens will place or imagine themselves. The Substantive work of Kant's political
philosophy is done not by the constructive procedure of the social contract, but by
the constructed ideas of publicity and possible political agency. It is to these latter
ideas that ordinary citizens ought to appeal.
To summarize: Kant is not a hypothetical proceduralist in the sense that Rawls
and Barry emphasize. Nonetheless Kant does hold that moral and political prin-
ciples are constructed. Rather than specifying a hypothetical set of persons, Kant's
constructions Start from the bare idea of universality, of agreement by all (actual)
persons. Generating principles that would be agreed to by all may be too great a
task, given our widely disparate ends. But we can say that a person who was com-
mitted to expressing her commitment to the idea of such principles in her actions
would obey the CI. And we can say that a person who held that her government
should be committed to the idea of such principles would employ the principle of
publicity s a Standard of political criticism. Here it is crucial to remember Kant's
emphasis on possible rather than hypothetical agreement. Once again, a construc-
tivist in the strict RawlsBarry sense holds that moral and political principles are
those that a hypothetical set of persons would accept. Kant, by contrast, holds that
any set of persons committed to the idea of principles that all would accept would
(and do) employ possible agreement s their moral and political principles. Rather
than specifying a constructive procedure for everyday use, Kant supplies an argu-
ment that seeks to construct the principles we already use in moral and political
This comes close to Habermas' view, and indeed it is closer to Habermas than it is to
Rawls. But there are important differences between Habermas' view and mine. For me, the
ideal of political citizenship means the ability to publicly criticize existing authority. For
Habermas, this ideal implies not j ust the ability to participate but also actual participation
in public discussion aimed at reaching agreement. His conception of political speech is
dialogical while mine is imperatival. How to choose between them? I favor my view because
it arises from our actual political Situation: we are already governed by remote and poten-
tially indifferent authorities, and for their rule to be justified we must be able to publicly
criticize them. Habermas' view, by contrast, requires us to imagine ourselves (and then to
create) an idealized context of discussion aimed at consensus. He thus needs to motivate
this context (why must we publicly discuss?) and to show that it is neither impossibly ideal
nor overly dependent on our existing abilities and powers. Most of the fami li r criticisms
of Habermas focus on the difficulty of establishing all of this. For my own criticisms, see
my "Formal Liberalism and the Justice of Publicity," especially pp. 63-65.
This account comes closest to that of Onora O'Neill; see her Constructions of Reason,
especially essays l, 2 and 11. But although O'Neill uses the term constructivism, she never
defines it in any explicit way. She also does not spell out, s I have tried to do, the way in
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406 Larry Krasnoff
l suggested above that Kant's methods do not conform to Dworkin's constructive
model of moral and political theorizing s public justification. For Dworkin, s we
sw, the task of a theory is to summarize the particular convictions of a society in
a way that provides a common and easily accessible Standard of justification. For
Kant, by contrast, such a Standard is already available to ordinary moral reasoners,
who are already committed to the idea of duty and to its implicit principle, the CI.
Clearly this does not mean that an ordinary person speaks of maxims, imperatives,
autonomy and all the rest of Kant's technical terms. What Kant means is that such
a person is already committed to the practice that these technical terms describe.
Of course, Dworkin could say the same thing about his own theory, since he takes
himself merely to be summarizing the actual convictions of ordinary citizens (or
perhaps just ordinary lawyers and judges). But Dworkin's summary is meant to
offer a new Standard of justification, one that is unknown and thus unavailable
prior to the Statement of the theory. Kant refuses any such claim. After deriving the
CI in the first chapter of the Grundlegung, Kant writes:,"The ordinary reason of
mankind also agrees with this completely in its practical judgment and always has
the aforesaid principle before its eyes."
This reference to judgment shows that
the CI is meant to summarize not just what ordinary moral reasoners believe, but
how they already justify what they believe. For Kant ordinary moral reason already
has all the theory it needs.
which the CI and the principle of publicity could be constructed. Nonetheless her account
is the basis for my suggestions here. O'NeilPs important claim is that Kant sees no determi-
nate answer to the hypothetical question: what principles would fully rational beings ac-
cept? This might seem to lead to skepticism. But instead Kant shifts to the more modest
question: what principles could fully rational beings accept? Or, more precisely, what prin-
ciples could they not accept? The answer will be: principles that could not be universalized
or that could not be publicly affirmed by all citizens. Hence the CI and the principle of
Publicity. I have emphasized, s O'Neill does not explicitly do, the need to imagine agents
committed to rationally justified principles. Without this commitment there is no reason
for us to consider the question of what principles could be justified. But if we take ourselves
to be such agents, we can take ourselves to be committed to the Kantian principles that
emerge from this inquiry.
One might call this view "skeptical" or "possible" constructivism. The view is skeptical
about ever finding or even constructing rationally justified principles. But the view is none-
theless committed to the idea of such principles, and thus to their possibility. The practical
expression of the commitment to preserving the possibility of such principles is the CI and
the idea of possible political agency. All of this I take to be consistent with if not implicit
in O'NeilFs account, even if she does not spell it out in the way I have done here.
Kant, Groundwork of the Metaphysic of Mords, 402.
It is true that ordinary moral reason, because it is tempted by potentially opposing desires,
has a "disposition to quibble" with duty (Groundwork of the Metaphysic o f Mords, 405).
There thus arises a "natural dialectic" in which ordinary moral reason is tempted to alter
the principles of morality to suit the interests of happiness. In that sense it might seem that
ordinary moral reason Stands in need of theory.
But this is misleading, because ordinary moral reason can claim to alter the principles
of morality only by taking on the sort of guise I discuss below: a supposedly scientific or
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How K a n t i n n i s C on s t r u c t i v i s m? 407
Whn t K a n t i a n t hc or y of f c r s i s a v oc a bu l a r y t ha t hc l ps t o c ou n t c r t hc suspi ci on
t ha t or di n a r y mor a l i t y i s cn da n gcr cd by skc pt i c a l a r gu mc n t s pu r por t i n g t o cst a bl i sh
t ha t f r cc a c t i on i s i mpossi bl c , a n d t h u s t ha t mor a l i t y i s a q u a i n t , qu a si - r c l i gi ou s,
pr e-modc r n i l l u s i on . For K a n t , t hcsc a r gu mc n t s comc f r om t wo m a i n sourccs. Thc
f i r s t i s t hc r i sc of moder n sci cn cc, v v hi c h sccks t o dcscr i bc h u m a n bci n gs s i t docs
t hc physi c a l v v or l d, s govcr n cd by mc c ha n i c a l l a v v s. Thc sccon d i s a ki n d of
"wor l dl y" c yn i c i s m a bou t h u m a n n a t u r c , st r c ssi n g ou r i n c v i t a bl c scl f i shn css a n d
du pl i c i t y. I n hi s t i mc K a n t sa w t hcsc a r gu mc n t s c ombi n i n g i n a pa r t i c u l a r l y n oxi ou s
vva y: c a si i y a ppr opr i a t c d by "r c a l i st i c " dcspot s sc c ki n g t o j u s t i f y t hc i r u n dc moc r a t i c
pol i t i c s, sa ppi n g t hc r c si st a n c c of i n t c l l c c t u a l s a t t r a c t c d by moder n sci cn cc a n d by
t hc posc of t hc j a dc d a r i st oc r a t . K a n t hopcs t o r c pl c n i sh such i n t c l l c c t u a l r csi st a n cc
by c s t a bl i s hi n g t hc c on si st c n c y of mor a l i t y a n d frccdom wi t h a f u l l y r c a l i st i c a n d
s c i c n t i f i c vi cvv of t hc v v or l d. Wh a t mor a l t hc or y ca n pr ov i dc i s n ot a j u s t i f i c a t i on
f or mor a l i t y, bu t a scn sc t ha t mor a l i t y i s cohcr cn t , con si st cn t a n d n ot n cccssa r i ly
di s mi s s a bl c s a n i l l u s i on . U l t i m a t c l y K a n t t u r n s t o t hc or y t o shovv t ha t mor a l i t y
n ccds n o j u s t i f i c a t i on ou t si dc of i t sc l f .
Sa yi n g t hi s, hovvcvcr , r cvca ls t hc scn sc i n whi c h K a n t , t hou gh r c f u s i n g Dwor ki n ' s
pr a c t i c a l t a sk of pr ov i di n g pu b l i c j u s t i f i c a t i on , docs rcga rd j u s t i f i c a t i on s u l t i -
ma t c l y pr a c t i c a l r a t hc r t ha n t hc or c t i c a l , a n d wou l d c ou n t s a c on st r u c t i v i st a n t i -
r ca l i st i n Br i n k' s cxt cn dcd scn sc. Rcca ll t ha t for Br i n k a c on st r u c t i v i st i s on c who
rcj cct s r c a l i sm by hol di n g t ha t mor a l fa ct s or t r u t h s a r c c on st i t ut c d by our mor a l
bcli cfs. Thi s i s i n fa ct K a n t 's vi cw: t hc forcc of mor a l i t y, a n d t hc r c a l i t y of fr ccdom,
rcst s f i n a l l y on our t a ki n g our sclvcs t o bc t hc sort of bci n gs who a rc ca pa ble of
r cspon di n g t o u n c on di t i on a l r a t i on a l c omma n ds. Hcn ce t he doc t r i n c of t he fa ct of
rca son : mor a l i t y i s n ot a n i l l u si on , a n d wc a re i n fa ct t r a n sc c n dc n t a l l y frcc, bcca use
we do t a kc oursclvcs t o st a n d u n der mor a l la ws.
Rc a l i sm i n Bri n k's scnsc i s r ul ed
out , si n ce t hcre i s n o empi r i c a l or sc i c n t i f i c suppor t t ha t ca n bc gi ven for t hi s
con vi ct i on of ours. There ca n be phi l osophi c a l support : K a n t t ri es t o show how
our con vi ct i on s a bout mor a l i t y a r c n ot u n dc r mi n ed but i n st ea d cohcre wi t h our
wi der con ccpt i on s of r a t i on a l i t y, i n c l u di n g sci en t i f i c r a t i on a l i t y. But t he cohcren ce
a r gumen t ca n n ot do more t ha n i l l u m i n a t e wha t t he or di n a r y person a l r ea dy be-
li eves, t ha t mor a l i t y ha s u n c on di t i on a l n ecessi t y. As t he con st r uct i vi st a r gu men t I
offered a bove wa s mea n t t o suggest , for K a n t mor a l i t y i s r ea l l y n ot hi n g mor e t ha n
t he pra ct i ca l expressi on of our c ommi t men t t o t hi s i dea of u n c on di t i on a l necessity.
"rea li st i c" vi ew of hu ma n bei n gs a n d t hei r beha vi or. There i s n o wa y for or di n a r y mor a l
rea son t o subor di n a t e du t y t o i n c l i n a t i on wi t hi n i t s own t erms, for t he or di n a r y person
percei ves t he pr i or i t y of du t y t o i n c l i n a t i on very clca rly. Or di n a r y mor a l rea son , t hen , n ceds
t heory on l y beca use i t ha s a lrea dy i n voked t heor y t o qu i bbl e wi t h wha t i t a l r ea dy kn ows.
K a n t 's t heoret i ca l a r gumen t s seek t o ca n cel t he effect s of t hi s excursi on i n t o t heory, l ea vi n g
or di n a r y reason ba ck where i t bega n , commi t t ed si mpl y t o du t y i n i t s own t erms. Thc
t heoret i ca l a r gumen t s do n ot a dd a n yt hi n g t o our sensc of dut y, a n d i n t hi s sense i t i s t r u e
t ha t or di n a r y mora l rea son ha s a ll t he t heor y i t n eeds.
K a n t , Critique of Practical Reason, 2931.
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408 Larry Krasnoff . .
This last remark brings us back to the possible connections between the two
forms of constructivism. I have argued that although Kant does not offer hypotheti-
cal procedures to carry out moral and political judgment, he can be seen s con-
structing the principles that we do use in such judgments. And I have been suggest-
ing that although Kant does not hold that the truth of a theory rests in its ability
to summarize ordinary convictions for use in public justification, he does hold that
morality has no truth or justification outside our ordinary practical convictions.
The connection between the two views comes from the special nature of our convic-
tion that morality has unconditional necessity. The constructivist derivation of prin-
ciples states that agents with this conviction would choose the CI and the principle
of publicity. The doctrine of the fact of reason states that agents with this conviction
neither have nor need external support for their moral beliefs. Kant's two (weak)
versions of constructivism do go together.
In section IV I argued that the two (strong) versions of constructivism were con-
nected only under a wide publicity condition. A similar, though attenuated, condi-
tion applies to Kant's views. I suggested above that Kant- is responding to a suspi-
cion that he found common among intellectuals of his time: that ordinary morality
was underminded by the modern idea of scientific realism. Kant attacks this suspi-
cion by isolating the idea of unconditional practical necessity (showing that it
played no role in science) and then arguing that this idea was sufficient to generate
the content of morality (showing that the idea of duty implies a Substantive prin-
ciple of moral judgment). This strategy implies both a purely practical justification
(morality is not science but still has rational content) and the task of construction
(agents committed to the idea of unconditional practical necessity would choose
the CI). Insofar s modern suspicion about scientific realism and morality persists,
at least among intellectuals, Kant's strategy will seem persuasive, at least s a pos-
sible response. His two versions of constructivism are combined insofar s he is
responding to what he takes to be a shared intellectual condition.
Suppose, however, we grant what Kant does not: that this intellectual suspicion
has leached into the wider culture, and that ordinary moral agents are also affected
by modern skepticism about values. Suppose we grant that this skepticism has wide
publicity rather than just narrow intellectual cachet. In that case it might not make
sense simply to assume, s Kant's constructivism does, the idea of agents committed
to the notion of unconditional practical necessity. If skepticism about morality is
general and public, there may no longer be any such agents whose convictions can
be defended. In such a case any moral principle is likely to appear s just what
Rawls' and Barry's stronger form of constructivism says such principles are: what
would be chosen by some set of hypothetical persons. And s for why we should
care about the choices of these hypothetical persons, we are likely to answer in the
way Dworkin suggests: whether or not moral and political principles are true, we
need them to provide a public Standard that can order our social life. Under condi-
tions of wide publicity, the skepticism to which Kant is responding makes much
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How Kantian is Constructivism? 409
more plausible the view that morality is simply what we would all choose to use
s a public Standard of justification.
The nvo forms of constructivism are run together by simply assuming that the
task of moral and political theory is to respond to such a generalized, public skepti-
cism. If one does not find this task coherent or necessary, then constructivism in
either or both of its forms is likely to seem implausible. Since Kant accepted only
a limited version of the task, he cannot be called a constructivist in the contempo-
rary sense, even though his project has important features of both contemporary
forms of constructivism. Since Kant took skepticism about morality to be a problem
for intellectuals rather than for the culture s a whole, he never arrived at the
versions of constructivism suggested by Rawls or Dworkin.
This might suggest that Kant's thinking is naive or out of date. I am not con-
vinced this is so. The contemporary constructivist conception assumes not just a
wider and more public skepticism, but also a wider sense of what theory can do to
alleviate that skepticism. For Kant, s we have seen, theory simply defends the
principles that ordinary agents accept. But for Dworkin or Rawls, theory claims to
construct the principles for society s a whole. This is a massive task for theory to
assume, and the results of nvo decades of liberal theorizing in this vein are not
impressive. In the United States we are now in the midst of an ugly and ferocious
backlash against liberalism, a backlash directed especially against elites who are
charged with imposing their own, skewed conceptions of virrue on "normal" citi-
zens. The strong constructivist conception of theorizing is especially vulnerable to
attacks like this, and indeed Rawls and Dworkin have been associated with some
of the practical causes (redistriburion, affirmative action) that have been easiest to
criticize along these lines. Much more, of course, is behind the backlash than the
ambitions of liberal theorists. But the thought that contemporary, constructivist
liberalism is an effecrive pragmatic response to general, public skepticism about
values now seems implausible at best. I suspect liberalism will win few victories
until it again understands itself s Kant did: s defending ordinary citizens against
both the cynical and the powerful.^
This paper originated in a presentation made to an NEH seminar on Kant's moral philoso-
phy directed by Thomas E. Hill, Jr. in the summer of 1993. A later version was presented
at Reed College in February 1997. I
am indebted to the participants in these events for
their responses, and to an anonymous reviewer for this Journal for additional suggestions.
A conversation with Christine Korsgaard also helped to clarif) my thinking on this topic.
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