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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.
24
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.
25
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."
26
Moral
truths, Milo suggests, are simply "truths about what norms and Standards hypothet-
ical contractors would have reason to choose" for an "ideal social order."
27
Thus
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.
24
This point is noted by Ronald Milo, "Contractarian Constructivism," Journal ofPhiloso-
phy 112(4), April 1995, p. 193 n.
25
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.
26
Milo, "Contractarian Constructivism," Journal of Philosophy 112(4), April 1995,
pp. 181-204.
27
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."
28
Contractarian
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.
29
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-
liefs.
30
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
28
Milo, "Contractarian Constructivism," p. 190.
29
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.
30
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."
31
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.
32
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
ways.
IV
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
31
Milo, "Contractarian Constructivism," p. 192.
32
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.
33
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.
34
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
nature.
35
This account, and the conclusions about well-being that supposedly fol-
33
See PL, pp. 125-129.
34
Hobbes, Leviathan (ed. M. Oakeshott, Collier, 1962), Part l, chapter 14-15, pp. 103-124.
35
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.
36
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.
37
36
Hobbes, Leviathan, Part I, chapter 6, pp. 4755.
37
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.
v
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.
38
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."
39
Here
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.
40
All that is required is that all individuals apply the pro-
38
See note 4 above.
39
Rawls, "Themes in Kant's Moral Philosophy," p. 97.
40
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.
41
And,
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.
42
The
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.
41
Onora O'Neill, Constructions of Reason (Cambridge University Press, 1989), essays 6
and 11.
i
42
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.
43
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.
44
In the first chapter of the Grundlegung, Kant derives the CI from an analysis of
the motive of duty.
45
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?
46
How
can we show that the CI is the uniquely justified rational principle?
43
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.
44
"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.
46
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
45
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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.
47
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 might.be
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.
48
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.
49
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
47
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.
48
"Formal Liberalism and the Justice of Publicity," Proceedings of the Eighth International
Kant Congress, March 1995, pp. 61-69.
49
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.
50
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
life.
51
50
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.
51
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
VI
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."
52
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.
53
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.
52
Kant, Groundwork of the Metaphysic of Mords, 402.
53
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.
54
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.
54
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.^
55
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
v
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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