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In this article I press four different objections on Forst’s theory of the ‘Right to Justification’. These are (i) that the principle of justification is not well-formulated; (ii) that ‘reasonableness and reciprocity’, as these notions are used by Rawls, are not apt to support a Kantian conception of morality; (iii) that the principle of justification, as Forst understands it, gives an inadequate account of what makes actions wrong; and (iv) that, in spite of his protestations to the contrary, Forst’s account veers towards a version of moral realism that is prima facie incompatible with Kantian constructivism. I then evaluate Forst’s theory in the light of a distinction made by Sharon Street between restricted and unrestricted constructivism. I show that Forst has reason to deny that it is either the one or the other, but he is not able to show that it is both or neither. I conclude that the arguments Forst advances in support of his constructivist theory of the right to justification entail that it is a metaphysical and comprehensive conception in the relevant, Rawlsian sense. Forst’s theory of the right to justification therefore fails to fulfil one of the main stated aims.
Many commentators have failed to identify the important issues at the heart of the debate between Habermas and Rawls. This is partly because they give undue attention to differences between Rawls’s original position and Habermas’s principle (U), neither of which is germane to the actual dispute. The dispute is at bottom about how best to conceive of democratic legitimacy. Rawls indicates where the dividing issues lie when he objects that Habermas’s account of democratic legitimacy is comprehensive and his is confined to the political. But his argument is vitiated by a threefold ambiguity in what he means by ‘comprehensive doctrine’. Tidying up this ambiguity helps reveal that the dispute turns on the way in which morality relates to political legitimacy. Although Habermas calls his conception of legitimate law ‘morally freestanding’, and as such distinguishes it from Kantian and natural law accounts of legitimacy, it is not as freestanding from morality as he likes to present it. Habermas’s mature theory contains conflicting claims about the relation between morality and democratic legitimacy. So there is at least one important sense in which Rawls’s charge of comprehensiveness is made to stick against Habermas’s conception of democratic legitimacy, and remains unanswered.
Que nous veulent les lois du juste et de l’injuste?
γυμνωτέος δη πάντων πλην δικαιοσυνύνης
From the mid 1980s onwards an influential strand of feminist criticism of Rawls arose from a confluence of Gilligan’s moral psychology and Sandel’s communitarian critique which was subsequently turned against a certain kind of moral theory, including Habermas’s discourse ethics. In particular, Benhabib’s distinction between the standpoint of the generalised other and the standpoint of the concrete other was crucial to this debate and inspired many to follow this critical path. In my view, however, this distinction is misconceived, and the interpretation of Habermas’s discourse ethics to which it gives rise, mistaken. At best, it leads Benhabib to develop criticisms of Habermas’s conception of the moral standpoint, some of which are valid, though in need of further specification. However, neither these valid criticisms of discourse ethics, nor, I believe, the broader feminist critique of moral theory are obviously germane to feminism, and it remains unclear to this day how they advance the practical aims of feminist social criticism, such as the overcoming of ongoing injustice and the emancipation from patriarchal oppression.
Adorno's late work has often been compared to negative theology, yet there is little serious discussion of this comparison in the secondary literature.1 In most of the existing discussions virtually nothing is said about negative theology, as if it is obvious what it is and what the parallels with Adorno's ideas are. The truth is that negative theology is not self-evident, and neither are the parallels with Adorno at all obvious. To find out what they are would require a detailed account of both. In this article I shall make a start in this direction.
Giorgio Agamben's critique of Western politics in Homo Sacer and three related books has been highly influential in the humanities and social sciences. The critical social theory set out in these works depends essentially on his reading of Aristotle's Politics. His diagnosis of what ails Western politics and his suggested remedy advert to a “biopolitical paradigm,” at the center of which stand a notion of “bare life” and a purported opposition between bios and zoē. Agamben claims that this distinction is found in Aristotle's text, in ancient Greek, and in a tradition of political theory and political society stemming from fourth-century Athens to the present. However, a close reading of Aristotle refutes this assertion. There is no such distinction. I show that he bases this view on claims about Aristotle by Arendt and Foucault, which are also unfounded.
Several years ago Jürgen Habermas wrote a short answer to the question: “Does Hegel's Critique of Kant apply to Discourse Ethics?” The gist of his short answer is, “no”. Insofar as Hegel's criticisms of the formalism and abstract universalism of the moral law never even applied to Kant's moral theory in the first place, they also fail to apply to discourse ethics. Insofar as Hegel's criticisms of the rigorism of the moral law and of Kant's conception of autonomy do hit the mark, discourse ethics successfully draws their sting by reconceiving Kant's moral standpoint along the following lines. 1. Kant wrongly undertakes to establish the moral law as a “fact of reason”: discourse ethics derives the moral standpoint from two premises — one formal, a rationally reconstructed logic of argumentation, and one material, namely our intuitions about how to justify utterances. 2. Kant wrongly contends that we must be able to think of ourselves as both intelligible characters, inhabiting a noumenal world, and as empirical characters inhabiting the world of appearances: discourse ethics allows that in everyday contexts of action and in the context of moral discourse we have one character that has real needs and interests. 3. Kant is also mistaken in arguing that moral autonomy requires human beings to abstract away from their needs and interests and to will universalizable maxims for the sake of their universal form: discourse ethics understands moral autonomy to consist in the free adoption of a standpoint from which conflicts of interest can be impartially regulated, by giving special weight to the satisfaction of universalizable interests. 4. Kant misconceives the categorical imperative as an objective test of universalizability that is applied by individual wills in isolation: discourse ethics reconceives the moral universalism as an ideal of intersubjective agreement of participants in discourse. On the differences between the principles of discourse ethics and Kant's categorical imperative Habermas is wont to cite McCarthy's summary of his — Habermas' — position: “Rather than ascribing as valid to all others any maxim that I can will to be a universal law, I must submit my maxim to all others for the purposes of discursively testing its claim to universality. The emphasis shifts from what each can will without contradiction to be a general law, to what all can will in agreement to be a universal norm” (MCCA 67).