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Published online by Cambridge University Press: 10 November 2009
The authors aim to reveal both the potentialities and limitations of recent attempts by Dworkin and Rawls (especially in the latter's work since the publication of A Theory of Justice) to work out a constructivist conception of right to serve as the groundwork of a rights-based theory of justice. The constructivist conception of right is promising, the authors argue, because it points beyond both teleological naturalism and instrumentalism as conceptions of right. The authors, however, find Dworkin and Rawls's constructivism to be ultimately inadequate, and argue that their project would be furthered through consideration of the constructivist aspects of Rousseau's conception of right as articulated in The Social Contract.
Les auteurs tentent ici de révéler à la fois les possibilités et les restrictions des tentatives récentes par Dworkin et Rawls—tout spécialement dans les écrits de celui-ci suivant la parution d'Une Théorie de la justice—d'élaborer une conception constructiviste du droit pouvant servir de fondement à une théorie de la justice basée sur la droit. La conception constructiviste du droit est prometteuse, selon les auteurs, parce qu'elle va au-delà et du naturalisme téléologique et de l'instrumentalisme en tant que conceptions du droit. Les auteurs arrivent toutefois à la conclusion que Ie constructivisme de Dworkin et Rawls est inadéquat, et avancent comme argument que leur projet se trouverait amélioré s'ils prenaient en considération les aspects constructivistes de la conception du droit de Jean-Jacques Rousseau, telle qu'énoncée dans Du Contrat social.
1 Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), especially 279–90;Google ScholarPubMedRawls, John, “Kantian Constructivism in Moral Theory,” Journal of Philosophy 77 (1980), 515–71.Google Scholar
2 For example, see Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971), 22Google Scholar: “My aim is to work out a theory of justice that represents an alternative to utilitarian thought generally and so to all these different versions of it.” The same idea is repeated on the first page of the book. See also Dworkin, Taking Rights Seriously, vii; here, again, on the first page of his book, Dworkin states that he aims to criticize both legal positivism and utilitarian theories of justice from the point of view of a rights-based theory of justice.
3 Amongst contemporary political philosophers, it is Nozick who takes this alternative. See, in this regard, Neal, Patrick, “Between Scylla and Charibdis: Rights and Utility in Contemporary Political Thought,“ Windsor Yearbook of Access to Justice 2 (1982), 16–52.Google Scholar
4 See Gorman, J. L., “A Note on the Main Idea of Rawls's Theory of Justice,” Political Studies 29 (1981), 282–83.CrossRefGoogle Scholar See also Rawls, , A Theory of Justice, 17.Google Scholar A further clue which indicates the divergence of Rawls and Dworkin from traditional liberal social contract theory is the distinction evident throughout their works between the liberalism which flows from Hobbes and Locke, and that which flows from Kant. Each cites Kant as the leading source of his ideas. See, for example, Rawls, , A Theory of Justice, 11n.Google Scholar
5 Rawls, , “Kantian Constructivism in Moral Theory,” 556–57;Google ScholarDworkin, , Taking Rights Seriously, 159–63.Google Scholar
6 Rawls, , “Kantian Constructivism in Moral Theory,” 519;Google Scholar see also Dworkin, , Taking Rights Seriously, 160–61.Google Scholar
7 Ibid.
8 Rawls, , “Kantian Constructivism in Moral Theory,” 555–71;Google ScholarA Theory of Justice, 577–87;Google ScholarDworkin, , Taking Rights Seriously, 279–89.Google Scholar
9 While Hobbes and the classical utilitarians are the great historical figures who espouse an instrumentalist conception of moral right, contemporary utilitarianism in the form of rational choice theory exemplifies instrumentalism in its purest form, for where Hobbes and the utilitarians had argued that reason was necessarily directed at maximizing the satisfaction of specific natural drives or instincts inherent in human nature (self-preservation and pleasure respectively), contemporary utilitarianism severs the connection between reason and the maximization of any specific natural desires, holding instead that reason is maximization pure and simple. Hence the formal term “preferences” replaces the earlier substantive conceptions of what it is that rational agents seek to maximize. Instrumentally rational agents are “prudent”; seeking the maximization of benefits defined in terms of their subjective ends, they will, in so far as they are rational, follow that course of action which maximizes these benefits.
10 On the project of making moral theory part of a general theory of (instrumentally) rational behaviour, see the informative works of David Gauthier published over the last decade, especially, “Reason and Maximization,” Canadian Journal of Philosophy 4 (1975), 411–33Google Scholar, and “Morality and Advantage,” Philosophical Review 66 (October 1967), 460–74.Google Scholar
11 Categorical duties are distinguished from hypothetical duties by the fact that they are unconditional. Moral duties are categorical because if you have a moral duty to do X, then it seems correct to say you ought to do X, regardless of whether you derive some benefit from the action. Use of the notions of “contract” or “promising” are the favoured methods for trying to resolve this problem, in Hobbes for example. The argument is that having freely consented or promised to obey some law or principle, you are therefore obligated unconditionally. As critics from Hume on have pointed out, however, the obligation to keep promises must itself be contingent upon the calculation of benefits to be obtained from the act of keeping promises. This obligation being conditional, it cannot underwrite an unconditional obligation derived from it. This, of course, seems to make a travesty of the very idea of obligation; we are obligated only when action in accord with a law or principle will lead to some benefit, which is to say all “obligations” are conditional.
12 Rawls distinguishes the rational from the reasonable and also rational autonomy from full autonomy; rational autonomy is roughly the instrumental conception of rationality, while full autonomy is “that of citizens in everyday life who think of themselves in a certain way and affirm and act from the first principles of justice that would be agreed to” (Rawls, , “Kantian Constructivism in Moral Theory,” 521Google Scholar). This “certain way” of viewing practical life is the moral, as distinguished from the instrumental, way.
13 Rousseau, J. J.Google Scholar, The Social Contract, Bk. I. Introduction. All references herein are taken from The Social Contract and Discourses, trans, with an introduction by Cole, G. D. H. (New York: Dutton, 1913. 1968).Google Scholar
14 Rousseau, , The Social Contract, Bk. 1, chap. 4.Google Scholar
15 Ibid., Bk. 1, chap. 6.
16 Barry, Brian, Political Argument (Chicago: University of Chicago, 1967), 292–93.Google Scholar
17 Rousseau, , The Social Contract, Bk. 4, chap. 2.Google Scholar Compare with Dworkin, (Taking Rights Seriously, 331–38Google Scholar), wherein he argues that the pursuit of right answers in hard cases at law by judges is constitutive of our understanding of judicial decision-making as a rational process, and is to be distinguished from the (mistaken) notion that judges exercise subjective discretion in hard cases.
18 Rousseau, , The Social Contract. Bk. 3, chap. 1.Google Scholar
19 But suppose one argues that if nature is held to be purposeless, then moral objectivity is undermined. This, however, assumes that (a) natural norms = moral norms and (b) the only alternative is instrumentalism. Constructivism is not instrumentalism, but constructivism is not naturalism. This criticism of constructivism results not in the conclusion that constructivism is wrong, but that constructivism is different from teleological naturalism. But we already know that.
20 Rousseau, , The Social Contract, Bk. 1, chap. 8.Google Scholar
21 Ibid.
22 See especially A Theory of Justice, 513–19Google Scholar, where Rawls distinguishes autonomy from other conceptions of freedom in a manner which closely resembles Rousseau's distinction between the general will and the will of all. See also, 251–57.
23 Chapter 6 of Taking Rights Serionslv, originally in University of Chicago Law Review 40 (1973), 500–33.Google Scholar
24 Dworkin, , Taking Rights Seriously, 169.Google Scholar
25 Rawls, , A Theory of Justice, 516–17.Google Scholar
26 Ibid., 518.
27 Ibid., 519.
28 Rawls, , A Theory of Justice, 19, 587.Google Scholar
29 Rousseau, , The Social Contract, Bk. 2, chap. 1.Google Scholar
30 Ibid., Bk. 2, chap. 7.
31 Ibid.
32 Dworkin, , Taking Rights Seriously, 105.Google Scholar
