The ethical construction of legitimacy in John Rawls' (political?) liberalism [electronic resource] : a critical interpretation of justice as fairness
Keywords: Education.

The process of building a moral consensus on Rawls' principles must receive an interpretation that is latent in the justificatory framework of his doctrine --but that his conflict-avoiding liberal advocates (and, with particular emphasis, the Rawls of "Political Liberalism") would certainly prefer to avoid. The original position models a contextually informed procedure for choosing principles that unveil the normative structure of our (public) moral culture and that, to such an extent, are suited to becoming a "realistically utopian" focus of consensus and social reform in the context of existing liberal democracies. But empirical citizens could not even begin this consensual task if the "uncontroversial" (yet basically heteronomous) motivation that allows the parties to choose the principles behind the external constraints of the veil were descriptive of their own practical capacities. In our actual justificatory exercise the veil of ignorance is lifted; in order to feasibly converge on the principles of justice as fairness "in wide and general reflective equilibrium" we are ultimately expected to unfold an autonomous capacity for moral self-knowledge and public reasoning that proves implicit in our self-conception as free and equal citizens. As we are going to claim, unless we comfortably (and incoherently) prefer to assume (with the early Rawls) that the background social conditions for the development of an autonomous moral psychology which ensures the viability of this justificatory exercise are basically there (if this were the case, why did he formulate a conception that, with a "wide view" of its social role, was meant to institutionalize, from the family to the state, an egalitarian and autonomy-promoting basic structure that, while being fair to our rights as moral persons and making justice, would also create these pre-deliberative conditions?), or unless we magically prefer to hope (with the later Rawls) that an ethico-philosophically mutilated account of public reasoning will create by itself the moral-psychological assumptions of its own developmental feasibility or prove, at least, sufficiently centripetal for yielding a liberal egalitarian consensus in the absence of these background conditions, this is the transitional stage in which "the ethical construction of legitimacy" should take place. Insofar as the process of building pre-deliberative conditions of moral enlightenment in the historically de-politicized background of actual liberal institutions could hardly avoid a significant degree of resistance and conflict, we might be tempted to think that Rawls' early account of public justification was counterproductively demanding and even incompatible with our paramount liberal commitment to the freedom of citizens. We are going to show, however, that an exhaustive exercise of reflective equilibrium which is not at the reach of heteronomous citizens proves crucial not only for achieving a sufficiently conclusive and truly stable agreement on liberal egalitarian principles, but also for ensuring that our consent to any sort of principles is free from "historically accidental or institutionalized delusions, or other mistaken beliefs" about the social order they regulate --and, insofar as we are socially constituted beings, about the very process of moral socialization that shapes our self-conception and ends. For if the liberal state is not understood as the guarantor of a basic structure that is fair to our rights as moral persons and thereby seeks to take us beyond the heteronomous stages of our moral development, it will fail to ensure that we learn to adopt a reflective standpoint from which we can transparently deliberate about the justifiability of principles that do not simply impinge on our forms of cooperation as citizens, but on those developmentally decisive contexts of socialization in which we form our good and acquire the basic traits of our moral character. In our interpretation, the stability that counts (for the early Rawls) is the one of principles that meet this comprehensive condition of publicity. As he defiantly explains: "Publicity ensures, so far as the feasible design of institutions can allow, that free and equal persons are in a position to know and to accept the background social influences that shape their conception of themselves as persons, as well as their character and conception of their good. Being in this position is a precondition of freedom; it means that nothing is or needs to be hidden. (...) Put it in a different way: a well-ordered society does not require an ideology in order to achieve stability." If empirical citizens could miraculously adopt such an autonomous standpoint of moral self-knowledge and public deliberation in spite of their actual socialization in the largely inegalitarian and heteronomy-promoting developmental conditions that formalistic liberal institutions have (unjustly) de-politicized along their history, we can safely suspect that they would not "accept" these "background social influences" with their legitimating consent. In accordance with the Hegelian task of "overcoming the dualisms in Kant's doctrine" that Rawls explicitly assigns to his doctrine, we could understand a basic structure where this ideal of publicity becomes possible as an ethical order where the two sides of the individual as a moral and as a social being can be finally reconciled. For if deliberating in public allowed citizens to transparently embrace a conclusive interpretation of those principles that regulate the structural and cultural conditions that, as social beings, have made them who they are, they could plausibly see themselves as autonomous creators of their individual and collective lives. They would reflectively endorse the emancipating basic structure where they have been socialized as their own consensual creation --or, to put with Hegelian undertones, as their will translated into practice. As we are going to claim, a well-ordered society would thereby approach the demanding standard of justificatory transparency that Hegel's idea of "modern ethical life" could not coherently satisfy --in particular, if the application of the difference principle were eventually interpreted without ideologically naturalizing a culturally rooted drive for material accumulation and social superiority that currently tends to pervade our life plans (but that would be significantly alleviated under the egalitarian and autonomy-promoting "background social influences" of a just basic structure which facilitates a cognitively transparent reconciliation between the principles and our good). Yet even with an insufficiently autonomous or contextually concessive interpretation of the difference principle's application, it goes without saying that Rawls' emancipatory ideal would create severe transitional tensions. Rawls' principles, in this respect, may well be derived from a culturally rooted situation of choice with the justificatory strategy of proposing a conception of justice that existing citizens might consensually endorse because "it matches their considered convictions and coheres with the kind of persons they, on due reflection, want to be, " but those who have not been raised (or re-socialized) under its influx could hardly grasp its demands in a genuinely deliberative consensus that ensures the cognitive transparency of their allegiance. As Rawls acknowledges, a basic structure where justice as fairness satisfies its publicity condition would have to provide citizens with an ambitiously autonomous conception of themselves (that is certainly implicit their very social selves as participants in a liberal democratic culture but) that, "if left to their own reflections, they would most likely never form, much less accept and desire to realize." This interpretation of Rawls' early account of publicity (and, we might add, of stability for the right reasons) will help us to better understand and problematize his later reformulation of justice as fairness as an ethically undemanding liberalism. As we are going to discuss, the contextualizing constraints of his realistic utopia obliged him to confront an apparently serious challenge to its normative and developmental feasibility. For if justice as fairness was meant to become publicly justifiable and socially stable by virtue of unveiling a principled focus of moral agreement in the context of existing liberal democracies, it should have proven fundamentally compatible with those factual yet "reasonable" expressions of pluralism that naturally result from "the work of free practical reason within the framework of free institutions." But we are going to prove that the bulk of this factual pluralism, despite the deceivingly inclusive rhetoric of the later Rawls, is not reasonable yet. It rather accounts, to a considerable extent, for the lack of moral self-knowledge and justificatory transparency that formalistic and de-politicizing liberal institutions have historically tolerated. As we are going to argue, defensively recasting the ethical scope of justice as fairness and puzzlingly reaffirming the Kantian dualisms that the original formulation of his doctrine insightfully superseded might be the wrong way of facing transitional tensions even from the questionable standpoint of trying to advance a rather inconclusive and insufficiently operative consensus on loosely liberal egalitarian standards. Although building a basic structure that is fair to our rights as moral persons would invariably require a conflictive exercise of politics and state power, it is by no means clear that the "potentially oppressive" transition that the later Rawls feared would turn out to be "sectarian" or fail to be normatively neutral in a liberal democratic context where citizens, as he previously taught, could only live up to their culturally rooted (but potentially autonomous) self-conception a ... .