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Arianne Conty

Liberty, Equality, and/or Fraternity: The Aporia of Democracy in Immanuel Kant and John Rawls

The democratic movement inherits the Christian.

-- Friedrich Nietzsche1

The ideals of the democratic state were influenced, as is often repeated, by the Enlightenment philosophes, who spoke in the name of a sovereign subject, that of the autonomous individual, who could reach the universal through the use of reason, choosing to sacrifice certain freedoms in order to adhere to a body politic that enacted the sum of individual wills in the name of a democratic majority. By moving from individual inclination to universal reason through what Kant called "the categorical imperative", the sovereign will of the people was unified into a body politic or Leviathan that could legislate and govern in the name of all. By transcending communitarian notions of the Good in order to reach a rational understanding of the Right, each citizen could think beyond his personal advantage to defend the advantage of the democratic Nation-State as a whole. In this way, the sovereign decision of the divinely appointed king was replaced by a system of universal laws to be followed by all, without exception. In Rousseau's understanding, by freely choosing to sacrifice communitarian differences and abide by the dictates of universal reason, each subject lost nothing, and gained equality and liberty. In this chapter, I would like to problematize this "nothing" that is lost in the name of universal equality and liberty, and show how, like Freud's return of the repressed, this "nothing" inexorably returns in the form of the fraternity so essential to the foundation of democratic Nation-States. Finally, using the political philosophy of John Rawls as an example, I would like to show how this repression continues to function in democratic theory today, allowing what is a particular Kantian Enlightenment conception of the Good to posture as a universal theory of the Right.

1. The Aporia of the Nation/State ^

During the French Revolution, because of many anti-democratic forces both within and without France, each seeking what Pascal called "his place in the sun, " the equality and liberty of the revolution were finally universalized not by the force of reason, but at the tip of the sword, Robespierre taking quite literally Rousseau's call to force the unreasonable infidels to be free. Violence was thus intrinsic to the Enlightenment ideal, since the democratic nation-State could not tolerate dissension within when it was threatened from without, requiring a strong state apparatus and education system to ensure that the body politic function as a coherent and united force. In this way, the unifying force of devotion to God was transferred onto la Patrie and its ideal of freedom for all. It is this idea of a unique people that gained popularity in Europe as a reaction to the identification of democracy with the French Revolution and its imperial expansion, such that one might claim that the Revolution gave birth to nations before democratic States.2 And thus the third ideal of fraternity was needed in order to reach the goals of freedom and equality. Nationalism thus arose as a state of exception necessary to enforce the universality of the democratic State, founding democracy in an aporia that remains essential to the constitution of the Nation/State and the defence of its boundaries. How can the citizen be bound by fraternity and community and vow to protect the nation, while professing at the same time a radical universal freedom and equality that has no borders? How can the Nation/State be founded in fraternal communitarianism while at the same time being grounded philosophically in the radical individualism of the Kantian imperative? How can the citizen retain a universal political status while at the same time belonging to a community founded in a particular culture and history? As Giacomo Marramao puts it in his book, The Passage West:

Therefore, in the very conceptual and symbolic structure of universalism there is a latent conflict between the (general) logic of citizenship and the (specific) logic of belonging. Hence, it is inevitable that it is precisely those democratic movements and tendencies that aim to present themselves as the party of rights which have to assume the centrality of this paradox in its entirety. From here stems the paramount question: how can one be the bearer of rights without opposing the logic of belonging? How is one to conjugate universalism and difference? .3

Political theorist Carl Schmitt famously claimed that in order to reconcile fraternity with equality and liberty, the political structure of democracy requires a state of exception. It is the national character of the State that limits the universalism of the categorical imperative to the citizens within, transforming it into universal laws that are applicable only to the brethren of the democratic community. Because the universal law does not apply to outsiders, when threatened from without the law is superceded and a "state of exception" declared, in order to repulse the external threat and stop it from breaching the national identity and boundaries of the Body-Politic. In this way, an authority prior to the law can override the law when necessary, to ensure the very functioning of the law. Democracy thus presupposes not only the sovereign decision of each autonomous citizen-subject to conform to the shared values of a closed Nation-State, in the name of universal reason, but also the sovereign decision of a leader of State to abrogate this universal law when necessary. Democracy thus presents us with two competing political theologies, which often function antonymically together in modern democracies. In times of peace, secular democracies transfer faith and obedience to God to reverence for the law obtained by means of popular sovereignty.4 When threatened by crisis, however, democracies are constrained to place free will, that of the sovereign, above universal law. In this case, sovereign power transcends the laws of the State that all must obey (the State of Exception), just as the freedom of God overrides and annuls the laws of nature (the possibility of the miracle). This sovereign decision that can override the law to protect the body politic from internal and external threats seems to justify Carl Schmitt's famous claim in his book Political Theology that "all significant concepts of the modern theory of the state are secularized theological concepts, " not only because of the transfer of power from a theocracy to a democratic state, but also because he believed that the state retains a theological structure. These two political theologies find justification in the political philosophies of Hobbes and Kant. If Hobbes defended the absolute power of the sovereign as constitutive of an enduring political State, Kant was in favor of a constitutional monarchy with no exceptions, the sovereign himself being constrained by reason to follow the categorical imperative. When Kant attempted to answer the question "how is synthetic a-priori knowledge possible?", he sought the governing principles lying beneath the presuppositions of moral consciousness. Though these moral presuppositions were Christian and Protestant in Kant's world, he believed that the principles lying beneath such culturally specific presuppositions were themselves universal. Since for Kant, the will is not based on an exterior cause, as are inclinations, nor in communal practices, but rather in "the property the will has of being a law to itself" (GMS 4: 440), each rational individual can reach the universal moral law only by "abstracting from personal differences" (GMS 4: 433-434). In line with his Pietistic Lutheran upbringing, where the Protestant does good works for their own sake because his inner intentions are pure of ulterior motives, for Kant we choose what is right for its own sake because our reason functions as an "inner legislation" to bring the universal truth to light. By understanding the Categorical Imperative as the objective ground of universal reason, Kant will universalize the Christian subject trained to reach such a truth, rather than understanding such a subject as constructed by ideology and "personal differences. " Though Kant was aware that this universal truth depended upon a Christian social context where inner certainty could lead to a "revolution in the disposition of the human being (a transition to the disposition of holiness of disposition) " (RGV 6: 47), this "holy disposition" (necessary to accept the "inner legislation" of reason as absolute truth) will take the form of Deism for Kant, the religion of reason freed from all superstition and thus universally acceptable to all reasonable citizens.

By giving priority to prescriptive discourse (the categorical imperative), over denotative discourse, Kant's autonomy of the will identifies prescriptive discourse with truth and thus legitimates it as reality. Prescriptive knowledge (morality) thus gives the autonomous individual socio-political legitimacy. Such prescriptive truth is the principle upon which the laws of democratic consensus are established, and the source of social progress so dear to modernity. As Lyotard has explained, any narrative discourse that did not depend upon prescriptive judgments legitimated by autonomous reason, were considered forms of obscurantism incapable of reaching legitimation as truth.5 Knowledge is thus intertwined with the legitimation of State power, and thus responsible for excluding all discourses that fail to meet its standards of legitimation from the field of knowledge and of politics. Only those capable of sacrificing the "nothing" of communitarian decisions for the universal truth reached by individual circumspection are considered moral citizens. Heteronomous communities incapable of such individualistic "inner legislation" were rejected from the national fraternity, for by choosing heteronomous reasons they made an exception to the moral law in the name of an inclination and were thus unworthy of human dignity, defined by Kant as the ability to set oneself a moral end, unlike mere animals.6 The Nation-State was thus constituted by the hegemony of a national conception of the Right, which was fostered by a prior religious conception of the Good, and which excluded those incapable of understanding the Right in exclusively rational terms, and thus of having been conditioned by a particular Christian moral context. Those incapable of demonstrating human dignity by reaching moral ends by means of autonomous reason became foreigners within, dangerous to the survival of the democratic ideal. They were excluded from the democratic brotherhood in order to safeguard the sovereign boundaries of the moral law. This exclusion of the other determined by a national boundary is what Carl Schmitt called the friend/foe distinction. In Schmitt's own words:

The distinction between friend and enemy denotes the utmost degree of intensity of a union or separation, of an association or dissociation... The political enemy need not be morally evil or aesthetically ugly; he need not appear as an economic competitor... But he is, nevertheless, the other, the stranger; and it is sufficient for his nature that he is, in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible.7

The boundary of the Nation-State condemns all outsiders to the status of foes, a threat to the homogeneity of the brotherhood that at the same time constitutes its national boundaries. Because the national boundaries of the Nation/State are constituted in terms of the distinction between friend and foe, inside and outside, the enemy can only be without, never within, only foreign, never neighbor or brother.8 According to Schmitt's analysis, the political has no meaning save for instituting this national boundary between friend and foe, without which it loses its identity and turns "ghostlike".9 Because the State "ceases to exist politically"10 when it loses the ability to declare war on an enemy, it is the potential of violence, whether acted out or not, that constitutes the State for Schmitt, and justifies the Sovereign authority of its structure.11 By defining politics in terms of its ability to recognize the Other as enemy, and if needed, to sacrifice life fighting this enemy, the exception founds inclusion in the sphere of the political by marking the excluded other. Schmitt writes:

A world in which the possibility of war is utterly eliminated, a completely pacified globe, would be a world without the distinction between friend and enemy, and hence a world without politics. It is conceivable that such a world might contain many very interesting antitheses and contrasts... but there would not be a meaningful antithesis, whereby men could be required to sacrifice life, authorized to shed blood, and kill other human beings.12

Both the exclusion and violence necessary to nationalistic belonging, and the universal human dignity that defines the citizen-subject remain essential to contemporary justifications of Western democracy. The question thus becomes whether it is possible to separate an interpretation of autonomy and equality from the exclusion that such a discourse of legitimation entails, or whether such exclusion is fundamental to the functioning of the democratic Nation-State, as Schmitt holds. Is the Kantian conception of individual reason intrinsic to the particular history of European civilization that went on to conquer, colonize and export its model of democratic governance to the rest of the world? In other words, can the violence intrinsic to the history of the Nation-State be traced to the Enlightenment ideal of universal reason, or does it rather find its source in the need to limit such universality to the national boundary of the legal jurisdiction of its democratic laws? Is the friend/foe distinction described by Schmitt brought into being by the fact that the universal reason that is the sine qua non of citizenship is itself an exclusionary comprehensive doctrine, or because non-democratic forces refused to accept the equality of such a democratic message, thus confining it to Nation-State boundaries? .13

2. Immanuel Kant and John Rawls ^

John Rawls is a 20th century American political philosopher who has attempted to revise and update Kantian autonomy of the will in order to respond to the pluralistic context of 20th century liberal democracy. Founded as it is in the concept of the liberty of the individual, Rawls'theory seems to incarnate secular liberalism, and provide a viable model that retains individual reason as the foundation of democratic governance while at the same time seeking to redress the exclusion inherent to the Enlightenment model.14 Rawls admits both his debt to Kant15 and that "the religious, even Pietist, aspects of Kant's moral philosophy seem obvious",16 and "comprehend far more than the political".17 Attempting in his later work to distance himself from such a Protestant conception of the person, Rawls will argue that prioritizing the right over the good does not presuppose any particular conception of the person, not even the comprehensive Kantian conception he admits to having adopted in his early work A Theory of Justice18. Due to the cultural pluralism of contemporary democracies in a globalized age, Kant's attempt to found democracy as a moral community through the prescriptive discourse of the categorical imperative will no longer be considered a possible goal for Rawls, and will be replaced by what Rawls will call an "overlapping consensus" that privileges political stability over community. Because people living in different communities will disagree about the good, politics must seek neutrality with regard to the good, and privilege freestanding principles of justice (the Right) that all can agree upon. The different doctrines that constitute a pluralistic political community may differ so long as they all share the reasonable commitments essential to liberal democracy, including the rule of law, human rights, freedom of expression, and the possibility of free enterprise. This means that all co-existing heteronomous conceptions of the Good must share what he calls "a constitution of essentials", such that, though motivated by different thick conceptions of the Good, all reach the same universal political conclusions regarding what is Right. In his 1980 article, "Kantian Constructivism in Moral Theory" this "constitution of essentials" remains quite Kantian, for Rawls will follow Kant in proposing a political conception of justice that seeks out universal principles lying beneath "personal differences. " For Rawls, "the aim of political philosophy, when it presents itself in the public culture of a democratic society, is to articulate and to make explicit those shared notions and principles thought to be already latent in common sense".19 His re-worked version of this thesis in Political Liberalism was supposed to be free from such Kantian presuppositions, for, as he puts it in this later work, political power is exercised "in accordance with a constitution of essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason".20 Though individuals may have what he calls "comprehensive doctrines" that justify a moral sense of right and wrong, the principle of legitimacy would be sufficient to establish a tolerant society because each individual would accept the burdens of judgment required to establish a reasonable truth claim. It is difficult to see what has actually changed between the early and late Rawls however, for his political stability continues to depend upon the universal dictates of "common human reason", a universal substrate lying beneath comprehensive doctrines, as it did for Kant. Aren't the principles and ideals acceptable to human reason themselves intrinsic to a particular communitarian conception of the good,21 which Kant himself acknowledged was necessary to inspire the motivations to act upon judgments of right and wrong? And if this is the case, how can Rawls use such principles to found the universal truth claims necessary for the possibility of democratic justice without enforcing a particular conception of the good as if it were universal? Unable to see that his principle of legitimacy itself presupposes a thick conception of the Good, Rawls is constrained to accept the fair as good enough for now and to defer democracy and justice to a future time when individuals would sacrifice their conception of the good for his own. Rawls'secular theory thus seeks its ultimate justification in a politico-religious messianism that bears the stamp of his early Protestant faith. Rawls'theory of justice thus provides us with an excellent illustration of the movement from a religious to a secular democratic vision, and like the history of western liberal democracy itself, his work will be understood as retaining a religious ground and structure (and thus a conception of the Good), notwithstanding the death of God.22

3. John Rawls: Rational Autonomy and Democratic Messianism 23 ^

Rawls contemplated becoming an Episcopalian priest during the last two years of his undergraduate studies, and his recently discovered senior thesis, entitled A Brief Inquiry into the Meaning of Sin and Faith: An Interpretation based on the Concept of Community, allows for a certain religious structure underlying his later thought to come to light. In this work, community is associated with redemption, a goal toward which he strives with messianic faith while attempting in the here and now to overcome sin, which he associates with egocentric pride. If sin is "the repudiation and negation of community", salvation is the restoration to community when "the spirit returns to the community in faith", where faith is "that openness which flowers into the complete fullness of communal life".24 Faith then, is an inner intention in the Lutheran and Kantian sense of the term, an intention to not use others as means to achieve egoistic ends (sin) but rather to treat them as persons, members in the community of equals that is the kingdom of ends. "Community in the full sense, that is, the heavenly community, is the end in itself".25 Though none of the scholars who have worked with his thesis have given this fact the importance it deserves, Rawls'understanding of community, the "end toward which creation moves",26 is decidedly messianic. He ends his thesis, to give what is perhaps the most startling example, in this way:

Creation moves toward that great day, burdened by the stubbornness of man's sin to be sure, but then, all things are possible with God... Therefore we may look forward to the day, which may not be far off, when Christ will appear in his glory and when the heavenly community will be established under God. At that time, sin will have been destroyed, and men will be open to one another, looking up to God in rejoicing and thanksgiving.27

The central question of his thesis thus becomes how to reach this goal: "'How can mankind, wrapped up within the closed circle of egotistical self-worship, be torn open and re-integrated to community?"28As readers of Rawls' later political philosophy will intuitively guess, the body politic does not form a gestalt, a whole that is greater than the sum of its parts, for, as he puts it, community "does not destroy personality to dissolve it into some mysterious and meaningless One".29 Rather, the only way to achieve this messianic goal is through the correct (Kantian) use of individual reason to sublate all difference (and all notions of the good) out of the pure motivation to achieve what is right, for its own sake. In other words, in typical Protestant fashion, the heavenly community that Rawls seeks is possible only if its individual members are already saved. Good works, for Luther, are done for their own sake, not to achieve any end from them. They are thus a sign that the citizen has already been saved, in other words, is already good, in order to understand what is right and to seek it for its own sake. Just as Calvin's understanding of predestination entailed understanding God's decree outside of all conceptions of merit and effort, Rawls theory requires individuals to naturally privilege their God-given individual reason without ever seeking to put into place the State and community structures that might create such a subject amongst multicultural communities, or looking into the many ways such a subject is already being promoted among white, Protestant Americans. The community does not reform and create saved (i. e. rational, non-egotistic) individuals through laws, education and policies, rather it is the already saved individual whose actions "restore and reconstruct community".30 The inability of Rawls to understand that selves are not born rational and free from the womb, and his avoidance of the cultural construction of subjectivity, is I will hold, the effect of longstanding Protestant biases, which understand the subject as saved or damned, outside of all effort and blame. Noticing this apparent contradiction, he writes:

To restore community, man must be brought into community and restored first. This statement may sound like a paradox, but this is precisely what happens to God's chosen. They are immediately converted and thereby set into community, and by their efforts, together with the Holy Spirit, others can be brought into community.

The key thus becomes, for the young Rawls, the conversion experience, which "immediately" transforms the subject from within, without any external influence. It is God's grace that 'veils' our sin (hear individual notions of the good) and replaces it with Kantian rationality, the self-certain sign of salvation or true democratic community. It is revealing to compare this understanding of sin and conversion to Rawls' later conception of the veil of ignorance in A Theory of Justice and his need to strip the individual of his differentiating characteristics (race, gender, education, etc.). Once they don the veil, individuals counts as political agents only in terms of their being able to make use of normative reasons, and it is thus these objective and rational judgments that ensure the redemption of a society of equals. Similar to Habermas' theory of translation, Rawls' later theory adheres to a classical theory of secularization that understands Kantian ethics to be the natural end of religion once it is purified by reason. Rawls presupposes a secularized Protestant society in which the dignity of the citizen lies, not in social obligations that are enforced by society in a system of rights and obligations, nor in inter-dependent social bonds that might predate these obligations,31 but rather in freely chosen limits to one's freedom in order to increment personal well-being in a world where resources must be shared. Since the individual must already be saved, already be capable of applying the categorical imperative, his status can in no way imply the Catholic need to somehow earn salvation through education or ethical action. Because merit can in no way influence God's decree, the individual must already be touched by God's grace in order to find the law within. He is a member of the democratic community because he is already an ideal democratic citizen to the extent that he spontaneously and freely dons the veil of rational universality that separates the chosen from the damned. So the veil of ignorance comes to take the place of the conversion experience for Rawls, since salvation can in no way depend upon the individual's own merit (a certain way of life that presupposes a conception of the good). With no ethnic roots and no emotional and religious bonds to bias the individual's neutral, objective judgment, Rawls'veil of ignorance presupposes that we exist in a no man's land, which may very well be Rawls'understanding of the Promised Land. If we could erase ethnic, racial, class, economic, religious and gender inequality, and even psychological predisposition, his argument goes, we could all agree on just political criteria. In his Theory of Justice, Rawls explains the constraints of the veil of ignorance as follows:

one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. Nor, again, does anyone know his conception of the good, the particulars of his rational plan of life, or even the special features of his psychology such as his aversion to risk or liability, to optimism or pessimism. More than this, I assume that the parties do not know the particular circumstances of their own society. That is, they do not know its economic or political situation, or the level of civilization and culture it has been able to achieve. The persons in the original position have no information as to which generation they belong.32

One can question the isolated Kantian subjectivity that underpins Rawls' theory, just as one can question the Lockean notion that he adopts (according to which rational individuals freely choose to adhere to a social contract). Our postsecular, globalized century seems rather to be warning us that the ethnic, religious, cultural ties that bind us to family, tradition and homeland are severed only at the price of social alienation and extremism.33 By basing his theory exclusively around individual rights and liberties,34 which supersede all demands to further the public good, Rawls excludes social welfare from having a place in the political arena once the conditions for a well-ordered society have been met. Could political theory of the Rawlsian stamp have something to do with explaining why, in America, the communities that exist or are formed to resist the loss of identity caused by globalization, are often at odds with the political representation of their state, which acknowledges only their individual political needs? To address the shortcomings of his veil of ignorance, Rawls later revised his theory in Political Liberalism to account for an overlapping consensus between individuals who fail to don the veil, and hence fail to eradicate difference. For this to work, the political must be given priority over all conceptions of the good, which are subordinated to it in the name of tolerance. But Rawls never tells us how to convince different peoples belonging to different comprehensive doctrines to accept such a hierarchy; he merely takes it for granted that they will. Justice as fairness thus moves from being a moral theory to being a political theory, which means that for Rawls politics is a value in itself, above and beyond those of comprehensive doctrines. He thus replaces one value with another, taking for granted that the latter value of politics is universally accepted where the earlier Kantian value of justice was not. By providing us with no justification of how political values are chosen by different citizens over non-political ones, Rawls' theory appears inadequate, and this is indeed the critique of his work leveled by Jürgen Habermas.35 Because it is left to each individual how to rank political and non-political values, Rawls' theory begs the question of how such individual subjectivity can be taken for granted to begin with, without a Kantian moral project behind it constructing such a subject. Otherwise, there is no reason to think that persons will not decide based upon the pre-established group norms of their comprehensive doctrines. Rawls thus takes for granted that an overlapping consensus is possible and normative for politics to function properly, and thus that certain politico-moral reasons, those that secure liberal rights over and against comprehensive values, are indeed shared by all. Rawls was aware of this criticism of his later theory, and he explicitly mentions the influence of religion on conceptions of the right in the introduction to Political Liberalism. He remarks that Christianity makes possible the "conquest of peoples, not simply for their land and wealth, and to exercise power and dominion over them, but to save their souls. The Reformation turned this possibility inward upon itself". This internalization leads to either "mortal conflict" or "equal liberty of conscience and freedom of thought" without which, he writes, "no reasonably political conception of justice is possible".36 Speaking of the transformation of these religious ideas in the philosophies of Hume and Kant that underpinned his A Theory of Justice, he mentions that both philosophers:

[...] believe that the moral order arises in some way from human nature itself, and from the conditions of our life in society. They also believe that the knowledge or awareness of how we are to act is directly accessible to every person who is normally reasonable and conscientious. And finally, they believe that we are so constituted that we have in our nature sufficient motives to lead us to act as we ought without the need of external sanctions, at least in the form of rewards and punishments imposed by God or the state.37

And he goes on to state that political liberalism affirms these same three positions with regard to a political conception of justice for constitutional democracy.38 So though moral philosophies are supposedly no longer the concern of Rawls'theory, the universality of his political theory depends upon the caveat "except insofar as they affect how the background culture and its comprehensive doctrines tend to support a constitutional regime".39 The Protestant and Kantian presuppositions of rational autonomy are thus acceptable to Rawls to the extent that they support constitutional democracy. Though we can applaud Rawls'desire to avoid basing rights on a conception of the good that would impose the values of some people on others who do not share them, by privileging the Right over and above all conceptions of the Good, Rawls'theory takes for granted that all citizens are able (and willing) to follow the dictates of reason in offering individual and universal reasons in order to reach an overlapping consensus. Yet by making all conceptions of the good subservient to an interpretation of the right that is the exclusive domain of individual reason, Rawls is unable to see the conception of the good that is presupposed in his own secularized Kantian model. As Ronald Beiner put it:

The more Rawls emphasizes the need to subordinate comprehensive doctrines to the needs of what one can call "pan-civic citizenship, " the more he asserts, willy-nilly, his own (fairly attractive) comprehensive doctrine -- which ought to be defended as such. Calling this political liberalism merely obscures what should instead be acknowledged as a foundationalist principle.40

Rawls universalizes an understanding of the individual that is context specific, thereby perpetuating a secularized Kantian understanding of the Good, which is an unconditional end for its own sake because it is right, in the name of universal rationality.Rawls attempted to extricate himself from this critique by differentiating his "merely political" view not only from religious comprehensive doctrines and the comprehensive doctrine of Kantian moral philosophy, but also from secularism understood as a comprehensive doctrine. He writes:

We must distinguish public reason from what is sometimes referred to as secular reason and secular values. These are not the same as public reason. For I define secular reason as reasoning in terms of comprehensive nonreligious doctrines... By contrast, liberal political principles and values... are political.41

Yet it is still individual reason that can be legitimated as true, and that allows one to find an 'overlapping consensus'amongst comprehensive doctrines, and it is this reasonable core that ensures what is just and thus the justified coercion of the law. In this sense, though Rawls has attempted to transcend the Protestant and Kantian comprehensive doctrines of the good for a purely political one, this purely political stance is a condensation of the previous comprehensive worldview, and thus still abides by its normative ideology regarding what is to be enforced by means of the law in terms of democratic reasons. Rawls' politics is therefore impossible to separate from the secularized Protestant worldview from which it is derived.42 As Wendy Brown, Judith Butler and Saba Mahmood put it, "through secularization, religion thus becomes Protestantized".43 This prejudice is easier to recognize from the outside. As José Casanova points out, non-Western peoples, "are more likely to recognize the European process of secularization for what it truly was, namely, a particular Christian and post-Christian historical process, and not, as Europeans like to think, a general universal process of human or societal development".44 Rawls defends a conception of universality without understanding that he is transforming what José Casanova calls the particular Western Christian historical process of secularization into a universal teleological process of human development45. His model is thus doomed to failure in light of the pluralism of divergent communitarian conceptions of the good that do not accept his individualistic and rational presuppositions, which are themselves understood as the source of the uprootedness that is being contested in our globalized world. In order to prioritize the right, Rawls thus assumes that the individual continues to veil his or her comprehensive doctrines from view, and become an autonomous rational subject freed from all conceptions of the good. Yet, as Michael Sandel points out, why would questions of justice be universally rational, and only questions about ethics or religion fall under the conflicting views of reasonable pluralism? "How does the pluralism about justice that prevails in modern democratic societies differ from the pluralism about morality and religion?"46 Rawls' theory thus continues to assume that comprehensive doctrines are rational individual choices that can be added and discarded like Scheherazade's veils. As Chantal Mouffe makes clear:

[...] citizenship, when conceived as allegiance to the ethico-political values constitutive of pluralist democracy, reveals the impossibility for democratic politics to do without an idea of political community and a reference to the common good. Citizenship refers to the dimension of political community, and, pace liberals, it is not something that can be understood in individualistic terms. It always entails a collective element.47

His later overlapping consensus thus remains as ideal as his veil of ignorance, for it takes for granted a self-sufficient and closed society of rational equals.48 He does not seem to consider that these doctrines are themselves embedded in communities, which themselves ascribe what it means to exercise freedom and rational judgment as individuals. And these individuals are not born equal, and rarely seem to use their reason if it entails alienation from the normative values of a given comprehensive doctrine. By assuming that the burdens of judgment are accepted by all because of a shared overlapping consensus naturally adopted by all citizens, Rawls ignores the process of subjectivation, and the fact that distancing subjects from comprehensive doctrines requires formation by an education system and a paradigmatic political worldview, which already functions to make a particular comprehensive doctrine normative such that it can go unnoticed.49 Thus, as Paul Ricoeur concludes in his essay about Rawls, his "procedural conception of justice at best provides a rationalization of a sense of justice that is always presupposed".50 If Rawls is able to presuppose a particular sense of justice as if it were universal, it is only because he ignores that his model of 'overlapping consensus' is itself imbedded in the comprehensive doctrine of Protestantism, where each individual stands alone before God, or in a secularized version, wrestles alone with the categorical imperative. There is a sense, then, in which Rawls' proceduralist theory of justice actually takes for granted a specific form of communitarianism based upon a thick conception of the good, which he posits as universal and non-partisan. This unconscious presupposition is that of secularized Protestant liberal democracy itself.51 Is this not what is at stake when Rawls speaks of the necessity of what must be understood as an ethical community above and beyond the rule of law for justice to be possible? Chris Brown points to the moral underpinning of Rawls' conception of justice as right when he writes: "Rawls' central point is that the existence of democratic institutions and the rule of law is not on its own enough to characterize a society as liberal or just. Common sympathies and a moral sense are also required".52 By not taking seriously other conceptions of the good, Rawls can be understood as enforcing the good of the secularized Protestant majority as if it were universal and just, and thus supporting the unholy alliance of one particular model of governance with world power by sublating the other and his or her cultural identity. His system, that is to say, is limited to a closed Nation-State somewhat similar to Calvin's Protestant society in which you are saved (a card carrying member of a liberal democracy) or damned (an animal, an illegal immigrant, a criminal, or anyone strange enough not to want to devote themselves to their God-given calling).53 Rawls' political conception thus favors one particular group of people over all others, thereby reinforcing the friend/foe distinction intrinsic to the democratic fraternity.

4. Conclusion ^

Just as the conversion experience is necessary in order for community to be possible for the young Rawls, his later theory presupposes an innate capacity to use individual reason to reach the universal as the condition for democratic justice. Because he presupposes that this capacity is already intrinsic to the subject, he provides no means of achieving such rationality through education and social programs. And because this condition is never met, he must continually defer democracy until tomorrow, where it beckons like a beacon of hope, or what he calls a realistic utopia. While seemingly adhering to what Patrick Deneen calls democratic perfectionism,54 becoming an ideal democratic citizen entails a transformation from within, which leaves no room for incremental improvements. To fight against the resignation caused by compromising this ideal in the here and now, Rawls feels obligated to leave us with at least a symbolic hope in a future of justice. As he puts it in Law of Peoples: "By showing how the social world may realize the features of a realistic utopia, political philosophy provides a long-term goal of political endeavor, and in working toward it gives meaning to what we can do today".55 It is precisely this "working toward" democracy that remains to be problematized. Rawls is unable to "work toward" such a democracy because he takes for granted that human beings are born rational liberal citizens, and thus capable of separating political justice from their life-worlds. But such a subject is socially constructed, and in the history of the West, such a construction has entailed the exclusion of anyone who did or could not constitute the meaning of citizenship and social belonging in such individualistic, rational terms. It appears then that universal reason is simply Western Enlightenment reason, founded in a particular modern ideology, which constructed the subject that was defined in its terms. This subject predates the foundation of the Nation-State in important ways, and provides it with the citizens necessary to its success. Such subjects then, are already part of a Nation, a fraternity, before the foundation of the democratic State, and exclusion is thus intrinsic to the universal reason of Western liberal democracy, and intrinsic to the exportation of the "universal values of capitalism" that are now being globalized in its name. Taking for granted that such a constructed subject is natural and universal, as does Rawls, is a means of continuing the tradition of exclusion and effacement of the other. Because the good life, the zoon politicon, is neither lived alone, nor reasoned alone, it is only the communal efforts to found the demos in an ethical foundation that is not that of the individual that can fight the disenfranchisement of the "We". Perhaps such a "we", such a demos, can think us in the direction of a shared world that benefits citizens and not corporate profit, shared well-being, and not rampant individualism, shared distribution of resources and wealth, and not competition and disregard for others. In our globalized, multi-cultural, post-colonial world, it is time for us to "work toward" a conception of democracy that does not take such a subject for granted, and instead works toward creating the institutions that instead of reinforcing the hegemony of a single discourse, will give multiple discourses a place in the public sphere. Such institutions should focus on cultivating a sense of "we" instead of a sense of "I", a sense of interdependence rather than a sense of autonomy. It is in removing our veils of ignorance that we can cultivate respect for the alterity of the others we live with, in heteronomous relations that require us to think beyond the hegemony of the universal (the consensus of the same) toward a politics founded in respect for differences. It is only in this way that democracy can embody freedom and equality without reinforcing an exclusionary national fraternity with closed boundaries.

Bibliography

Copyright © 2017 Arianne Conty

Arianne Conty. Liberty, Equality, and/or Fraternity: The Aporia of Democracy in Immanuel Kant and John Rawls Dialegesthai. Rivista telematica di filosofia [in linea], anno 19 (2017) inserito il 15 maggio 2017, disponibile su World Wide Web: <https://mondodomani.org/dialegesthai/>, [60 KB], ISSN 1128-5478.

Notes

  1. Nietzsche (2002), p. 125. <

  2. As Marramao (2012), p. 161, explains: "After the Napoleonic wars, the post-revolutionary European states adopted the national factor as the identifying element of recognition and belonging to contrast the French pretense of imposing, through universalist-revolutionary legitimation, its own nationalist and expansionist interests". <

  3. Marramao (2012), p. 161. <

  4. In his book Political Theology, Paul Kahn describes this transference as it functions in American politics as follows: "Following the law is the way in which ordinary people in ordinary times maintain contact with the sacred, once they can no longer speak directly to God. Is this not what the Old Testament prophets said? This is the tradition that was carried forward to the new world by the Puritans, that informed the first political-religious communities here, and that continues to inform our political imagination through faith in popular sovereignty and reverence for law". See Kahn (2011), p. 143. <

  5. "The people debate amongst themselves about what is just or unjust in the same way that the scientific community debates about what is true or false; they accumulate civil laws just as scientists accumulate scientific laws... It is clear that what is meant here by the people is entirely different from what is implied by traditional narrative knowledge, which, as we have seen, requires to instituting deliberation, no cumulative progression, no pretension to universality... It is therefore not at all surprising that the representatives of the new process of legitimation by the people should be at the same time actively involved in destroying the traditional knowledge of peoples, perceived from that point forward as minorities or potential separatist movements destined only to spread obscurantism". See Lyotard (1984), p. 30. And again: "Clearly, this mode of legitimation through the autonomy of the will gives priority to a totally different language game, which Kant called imperative and is known today as prescriptive. The important thing is not, or not only, to legitimate denotative utterances pertaining to the truth, such as The earth revolves around the sun, but rather to legitimate prescriptive utterances pertaining to justice, such as Carthage must be destroyed or The minimum wage must be set at x dollars. In this contest, the only role positive knowledge can play is to inform the practical subject about the reality within which the execution of the prescription is to be inscribed... Knowledge is no longer the subject, but in the service of the subject: its only legitimacy (though it is formidable) is the fact that it allows morality to become reality". See Lyotard (1984), p. 36. <

  6. "The dignity of humanity in one's own person is personality itself, i.e. freedom; for he is end in itself only insofar as he is a being that can set itself ends. Beings that lack reason, which are incapable of that, merely possess the value of thing". Cited in Kant, Reflection Note 7305, AA 19: 307. <

  7. Schmitt (1996), pp. 26-27. <

  8. As Andrew Johnson explains in his book Viral Politics, "There is never civil war; it is always war with something foreign. Therefore, the enemy is always foreign, always inherently other, and whether this correctly or incorrectly defines politics, it is ethically unacceptable". See Johnson (2010), p. 33. <

  9. Schmitt writes: "all political concepts, images and terms have a polemical meaning. They focus on a specific conflict and are bound to a concrete situation; the result (which manifests itself in war or revolution) is a friend-enemy grouping, and they turn empty and ghostlike when this situation disappears". See Schmitt (2007), p. 151. <

  10. Schmitt (2007), p. 154. <

  11. Developing upon this Schmittian conception, Giorgio Agamben has shown that from the very beginning of the democratic process, the State contravened the democratic process of policy-making and deliberation in order to make sovereign decisions that it claimed were essential for its survival against threats from without. The State of Exception, Agamben claims in his book of this same title, begins after the French Revolution, when the government took exceptional measures to ensure the stability of the new revolutionary government from threats both within and without. The measures were then introduced to the rest of Europe, Germany, Italy, England, and even Switzerland, which required that the state of exception be inserted into its constitution, thereby remaining part of the democratic praxis. The link between the state of exception and totalitarian governance would come into its own in the 20th century, most particularly in the Weimar Republic. It was of course with the help of Schmitt that the German Weimar Constitution adopted Article 48, which states that fundamental rights of the citizens could be superceded by the sovereign power of the leader of State. Article 48 reads: "If security and public order are seriously [erheblich] disturbed or threatened in the German Reich, the president of the Reich may take the measures necessary to reestablish security and public order, with the help of the armed forces if required. To this end he may wholly or partially suspend the fundamental rights [Grundrechte] established in Articles 114, 115, 117, 118, 123, 124, and 153". See Agamben (2005a). In his discussion of this article, Agamben points out that a law was meant to specify the conditions and limitations under which this presidential power was to be exercised. Since this law never saw the light of day, the indeterminacy of Article 48 enabled what many scholars called a "presidential dictatorship," such that in 1925 Schmitt could write that "no constitution on earth had so easily legalized a coup d'état as did the Weimar Constitution." He continues: "The state of exception in which Germany found itself during the Hindenburg presidency was justified by Schmitt on a constitutional level by the idea that the president acted as the guardian of the constitution; but the end of the Weimar Republic clearly demonstrates that, on the contrary, a protected democracy is not a democracy at all, and that the paradigm of constitutional dictatorship functions instead as a transitional phase that leads inevitably to the establishment of a totalitarian regime". See Agamben (2005a). <

  12. Schmitt (1976), pp. 35-36. <

  13. A Kantian could of course object to this reading by pointing out that universalism requires that each Nation State adhere to the same rational norms and thus that shared citizenship must be cosmopolitical. When these conditions are met, no aporia of democracy would arise. From this perspective, the political as defined by Schmitt is misleading, for it cannot explain the ethical charter of The United Nations, Just War theory, and the global citizens that inhabit our contemporary world. A Schmittian might retort by pointing out that the UN charter furthers the ends of sovereign nations, and that globalization and Just War theory are both continuations of colonial power relations cloaked under the false universalism of reason and free-market capitalism (both tools of Western supremacy). I am more interested here in showing that the democratic conditions for universality are founded in a generalization of reason that requires a particular citizen-subject who was individualized in very particular Western historical conditions. Such reason can be universalized where such individuals already exist, or else by a process of individualization that is enforced by means of physical, political or financial coercion on communitarian subjects. <

  14. For a defense of the liberal-democratic project as secular politics, the reader can consult Cohen (2009); Cohen (2010); Nozick (1974); Audi (1997); Audi (2000); Dworkin (2011); Maffetone (1998); Weithman (1997), among others. <

  15. He describes his own view as "closer to Kant's view than to the other traditional moral conceptions". See Ralws (1980), p. 305. <

  16. Rawls (2000), p. 161. <

  17. Rawls (1987), p. 6. <

  18. Rawls writes: "In Theory, a moral doctrine of justice general in scope is not distinguished from strictly political conception of justice... In the lectures in this volume however, these distinctions and related ideas are fundamental... Although the distinction between a political conception of justice and a comprehensive philosophical doctrine is not discussed in Theory,... it is clear I think, that the text regards justice as fairness and utilitarianism as comprehensive, or partially comprehensive, doctrines... The ambiguity of Theory is now removed and justice as fairness is presented from the outset as a political conception of justice". Cited in Rawls (1995), p. xviii-xix. <

  19. Rawls (1980), p. 306. <

  20. Rawls, 2005: 137. <

  21. The communitarian critique of Rawls is well known. See for example Sandel (1982), Walzer (1983), MacIntyre (1986) and Taylor (1979). <

  22. According to Rawls' own description in his text On My Religion, he lost his religiosity when he enlisted in the army during WWII, and faced the atrocities of that war. <

  23. Section three is a re-worked version of part of an article that I previously published. See Conty (2015). <

  24. Rawls (2009), pp. 214, 243, and 214, respectively. And again: "sin is separation from community; faith is integration into community" (243); "When we ask, how is man to be saved?, we mean simply how is man to be restored to community" (214). <

  25. Rawls (2009), p. 219. <

  26. Rawls (2009), p. 112. <

  27. Rawls (2009); p. 252. <

  28. Rawls (2009), p. 219. <

  29. Rawls (2009), p. 126. <

  30. Rawls (2009), p. 248. As he will later write in A Theory of Justice, "For the self is prior to the ends which are affirmed by it; even a dominant end must be chosen from among numerous possibilities... We should therefore reverse the relation between the right and the good proposed by teleological doctrines and view the right as prior". See Rawls (2005), p. 560. <

  31. Rawls (2009), p. 248. <

  32. Sandel (1998) masterfully problematizes Rawls' antecedently individuated self' in his attempt to propose a more open and intersubjective understanding of the subject. He writes: "More generally, Rawls' account rules out the possibility of what we might call intersubjective or intrasubjective forms of self-understanding, ways of conceiving the subject that do not assume its bounds to be given in advance. Unlike Rawls' conception, intersubjective and intrasubjective conceptions do not assume that to speak of the self, from a moral point of view, is necessarily and unproblematically to speak of an antecedently individuated self... On Rawls' view, a sense of community describes a possible aim of antecedently individuated selves, not an ingredient or constituent of their identity as such". Cited in Sandel (1998), pp. 62, 64. <

  33. Rawls (2005), p. 137. <

  34. See Roy (2004) for a convincing discussion of the role of deterritorialization and deculturation in the formation of radicalized Islam. According to Roy's analysis, most members of neofundamentalist Islamic groups were radicalized in Europe, where they turn to a universal ummah precisely because they have been uprooted from a specific territory and culture. <

  35. In A Theory of Justice he writes: "Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many". Cited in Rawls (2005), pp. 3-4. <

  36. Habermas (1995), pp. 110; 121-122. <

  37. Rawls (2011), p. xxviii. <

  38. Rawls (2011), p. xxix. <

  39. Rawls' position is defended by both Robert Audi and Nicholas Wolterstorff, though they are supposedly offering two opposing views in their joint book Religion in the Public Square, the former defending the Church-State divide, the latter calling for the replacement of the liberal principle by what he calls a consocial position that allows for religious reasons in the public sphere. They actually agree even more than they are willing to acknowledge, Audi claiming that secularism does not contradict monotheistic morality, since "even the free and equal doctrine, which lies at the very heart of liberal democracy, had religious roots - in Protestant dissent of the seventeenth century" [Audi & Wolterstorff (1997), p. 80]; and Wolterstorff claiming that Christian reasons (such as protection of endangered species due to Scriptural authority) do not violate norms of liberal democracy, but quickly adding that such Christians "will of course have to find and offer other, additional reasons for their position" [Audi & Wolterstorff (1997), p. 112]. So Audi agrees that American liberal democracy is built on Christian Protestant presuppositions and therefore should be deemed acceptable to Christians, and Wolterstorff that Christian reasons are valid to the extent they can be expressed in non-partisan (i.e. secular) ways. <

  40. Rawls (2011), p. xxx. Rawls will also contradict himself in when he writes the exact opposite in Political Liberalism: "If we look at the presentation of justice as fairness and note how it is set up, and note the ideas and conceptions it uses, no particular metaphysical doctrine about the nature of persons, distinctive and opposed to other metaphysical doctrines, appears among its premises, or seems required by its argument". See Rawls (2011), footnote 31, p. 29. <

  41. Beiner & Ronald (2010), pp. 297-298. <

  42. Rawls (2001), p. 143. <

  43. The violence of normalization inherent to this seemingly unconscious presupposition becomes all the more obvious in the context of international relations, as Rawls (2001) makes clear. Taking for granted that each Nation-State is inhabited by a single people or nation, Rawls moves quite naively from this presupposition to a discussion of relations between States. Yet today it is amongst these peoples, the many nations that make up a State, where most violence is occurring, and this unraveling of the Nation-State model has made only too evident the coercion that was at the heart of One Nation under God. In our globalized world, Nation-States are no longer economically autonomous, and they are no longer inhabited by homogenous populations. Any citizen of the world who disagrees with American globalization, in other words, with neo-liberal trade agreements that come with polices that destroy Nation-State sovereignty and communitarian policies wherever they subsist on the earth, resists the tide of democratic progress. This is indeed one of the causes of the 'return' to religion we have been witnessing. Because Rawls' theory does not address dissidents or minorities, and therefore can in no way address the crucial problems of interstate group conflict and international distributive justice in light of populations and individuals who are constantly moving across borders, Allan Buchanan hits the mark when he described Rawls' system as "a set of rules for a vanished Westphalian world and hence of limited value for our world". Cited in Buchanan (2000), p. 701. Brown (2002), p. 18, states that Buchanan "is accurate, but misses the point... Insofar as people remain separate for normative purposes, the Westphalien world is, indeed, for the time being, the correct frame of reference". This admission seems to contradict Brown's own understanding of Rawls' realistic utopia, however, for in his own words, Rawls' strength lies in telling us "where we ought to want to be", [see Brown (2002), p. 20], not where our legal system seems to be stuck. It is only in this light that his own conclusion makes sense, when he states that Rawls' ideal theory "may help us to understand that the limits of the possible in moral matters are rather less narrow than we will think they are if we allow the compromises that a non-ideal world forces upon us to constrain our imagination". See Brown (2002), p. 21. <

  44. Asad, Brown, Butler, & Mahmood (2009). <

  45. Casanova (2011), p. 64. <

  46. Casanova (2011), p 59. <

  47. Sandel (2005), p. 232. Nicholas Wolterstorff similarly writes: "But our common human reason is always a programmed human reason; what we come to believe by the use of our reason (whatever Rawls might have in mind by that) is a function, in part, of what we already believe. And we differ in our beliefs - differ in particular, now, in our comprehensive perspectives... In short, there is no more hope that reasonable and rational citizens will come to agreement, in the way Rawls recommends, on principles of justice, than that they will come to agreement, in the foreseeable future, on some comprehensive philosophical or religious doctrine". See Wolterstorff (1997), pp. 98-99. <

  48. Mouffe (2006), p. 322. Wolterstorff (1997), p. 109, puts forward a similar view. <

  49. In his book Democratic Faith Patrick Deneen points toward the inherent elitism of Rawls' identification of all citizens with "the reasonable and rational". He writes: "The reasonable come to represent the people, and thus deliberative democrats cleave closely to the original Federalist mistrust of democratic citizens, whose views must be filtered by the enlightened representatives. Democracy is carried out by a reasonable elite in the name of the people". See Deneen (2005), p. 27. <

  50. Romand Coles explains this point well in his book, Beyond Gated Politics: Reflections for the Possibility of Democracy. He writes: "In this light, if public reason were to effectively delegitimate all doctrines beyond political liberal family limits, we would (provided a fair distribution of primary goods) have a society void of coercive forces, where we could freely choose our life plans. This, both rhetorically and as embodied in the flow of Rawls's text, tends to deflect attention from the significance of many important forces that shape and constrain our political (un)consciousness - often quite comprehensively". See Coles (2005), p. 28. <

  51. Ricoeur (2000), p. 50. <

  52. Because Rawls is arguing for normative reason over and against the State of Exception, or as he puts it, Rawls and before him Kant "collapse will... into reason", Paul Kahn argues against the view that Rawls' theory constitutes a political theology in his book Political Theology: Four New Chapters on the Concept of Sovereignty. He thus follows Schmitt in arguing that political theology is constrained to place free will, that of the sovereign, over and above the law, which is the fruit of reason. His argument is strong and I certainly agree with his analysis, but I would hold that there are two political theologies competing with each other here, for Reason can itself function as sovereign, to the extent that the creator God of Deism and the mechanical universe of the enlightenment understood the laws of nature as dictated by Pure Reason, and by analogy the Law as Sovereign. This would lead, as the Protestant Reformation indeed did, to downplaying both the miracle, and the State of Exception. This Law, given by God to the saved (i.e. the true citizen), can thus function as Sovereign, over and beyond comprehensive doctrines and the differential character that is derived from the will. I would hold that these two competing political theologies often function antonymically together in modern democracies. Kahn himself develops such an antonymical relation when he explains how, in ordinary times, democracy positions itself over and against a Schmittian political theology of the State of Exception "through faith in popular sovereignty and reverence for law". Kahn writes to this effect: "Following the law is the way in which ordinary people in ordinary times maintain contact with the sacred, once they can no longer speak directly to God. Is this not what the Old Testament prophets said? This is the tradition that was carried forward to the new world by the Puritans, that informed the first political-religious communities here, and that continues to inform our political imagination through faith in popular sovereignty and reverence for law". See Kahn (2011), p. 143. By identifying justice with reason and reason with the law, reason itself becomes sovereign for Rawls beyond and before all character and will, and such a law constrains all freedom of action that might ensue from character or comprehensive communitarian views. <

  53. Brown (2002), p. 19. <

  54. His system thus necessitates transforming Foucault's delinquent who is a product of the system, into the rogue, outside the bounds of the law. We might look at how American liberal politics has put a similar idea into practice by creating rogue states, and the category of the terrorist to step outside the bounds of the Geneva Conventions. <

  55. Deneen writes: "If humans are capable of becoming ideal democratic citizens - ones that are simultaneously fully realized autonomous individuals yet also willingly seek to understand and embrace more general human concerns - then we must attribute this gap to insufficient realization of what humans are or could be. Embedded in this seemingly modest claim to contentment with basic human motivations is a subtle but undeniable transformational impetus". Cited in Deneen (2005), p. 5. <

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