Technology and Justice: The Philosophy of Authenticity and Democratic Theory

7: Validity and Moral Claims: Ideas Towards an Authentic Political System

7.1 Liberalism

Throughout this piece I have attempted to show sensitivity to the depth and complexity of the myriad conceptions of truth, as they exist throughout diffident discursive paradigms. While I have traced the evolutions and manifestations of conceptions of world views almost exclusively in the Western context, with particular reference to the social impact of knowledge systems, I believe the general model of Spirit I have sketched here may be applied, with important contingent deviations, in most contexts. A more sustained project in the future may examine this question of applicability and functionality in more depth, but at the moment I say this only to reinforce my feeling that the principle of moral authenticity is one which is universalizable—in the sense that it can, and perhaps should, by applied anywhere.

This is undeniably a bold claim, and one which necessitates justification. I shall therefore outline the possibility of realizing this principle on a macro level; paying particular attention to the concept of validity in law and incorporating this principle into the makeup of society as a means of legitimizing law in a democratic sense. What I mean by this is that the law, once conceived within a community of individuated citizens removed from binding formations of understanding, arguably may be said to attain a greater degree of legitimacy and moral force. Moreover, laws conceived in such a community would naturally, due to their greater universalism, serve to further the more perfectionist ambitions of the principle itself on an individual level.

I shall begin by contrasting several prominent political theories of legal legitimacy, with particular attention paid to exploring the differences between liberal methods of securing consensus, as found in Rawls, with those of my own. In this investigation, I intend to show how a Habermasian inspired project of an ideal, authentic, speech community might be realized. I believe it is possible to develop a theory which would more securely ensure consensus concerning the law, while realizing a higher degree of human potential than the liberal project's assumed conjectural limitations permits.92 In this, I was gratefully inspired by Professor David Dyzenhaus' excellent paper on this subject, Legitimacy and Legality, in which he contrasts Rawls' notion of law with Habermas', and Liberalism after the Fall, where he argues the former's liberal society would fall victim to the powerful critiques of Carl Schmitt.

Rawls' theory of justice is perhaps the most well developed of modern times, and engagement with it is necessary for expository reasons alone. After conducting a critical analysis of justice as fairness, I shall attempt to anticipate possible criticisms Rawlsian theory might bring against a principle of authenticity. Specifically, I intend to illustrate how, despite certain familial congruencies, it is not reducible to a system of virtue ethics which Rawls' astutely criticizes in Part III of Theory of Justice.

"Here we should note that in times of social doubt and loss of faith in long established values, there is a tendency to fall back on the virtues of integrity: truthfullness and sincerity, lucidity and commitment, or, as some say, authenticity…Now the virtues of integrity are virtues, and among the excellences of free persons. Yet while necessary, they are not sufficient; for their definition allows for almost any content: a tyrant may display these attributes to a high degree, and by doing so exhibit a certain charm, not deceiving himself by political pretenses and excuses of fortune. It is impossible to construct a moral view from these virtues alone; being virtues of form they are in a sense secondary."93

At first glance, a principle of authenticity seems to fall victim to this astute observation. However, drawing as it does from theories of communicative action; a principle of authenticity ultimately aims at providing universal moral codes, with the question of being serving as both an orientation for subjective ethos and a starting point for authentic speech acts. Indeed, I suppose that individuals who adopted this principle would, in communion, incorporate many valuable Rawlsian ideals into a social system without necessarily realizing them in the same, distinctly liberal fashion.

Rawls ingeniously avoids the traditional pitfalls of liberal thinkers by declining to offer metaphysical or naturalist justifications for his theory. Instead he begins by hypothesizing about what principles persons would select to govern society after the application of a veil of ignorance. Behind the veil of ignorance, in what Rawls calls the Original Position, reasoners have no conception of whom they might be in a future society ordered by their decisions. It is therefore in their best interest to come to an agreement on principles which most fully realize potential benefits while limiting risks they might assume once the veil is lifted. To ensure that they make the best choices, Rawls also hypothesizes that reasoners are aware of the basic facts concerning political affairs, economic theory, social organization and human psychology. Finally, the parties are considered rational—in the liberal sense that knows that they are interested in pursuing various life plans, and wish to maximize the likelihood of achieving them.

Rawls concludes that reasoners in this contractual position would reject competing doctrines in favour of his two principles of justice. These principles are the ones which he feels are most likely to ensure justice, wholesale in the long run. They are ordered, with the first taking lexical priority over the second, as follows:

The first principle is interpreted in a Kantian fashion as ensuring that persons are granted the maximum autonomy to pursue rational life goals to the extent that they do not interfere with the pursuance of the same goals by others. This has led many to regard it as guaranteeing the standard package of negative rights found in most liberal doctrines. I do not depart significantly from this conclusion; indeed, Rawls' own explication of how to interpret the first principle in Chapter IV of Theory seems to support this view. In no small part due this conventionality, the first principle has been comparatively uncontroversial.

Far more contentious is the second, popularly called the difference principle. Rawls' argues that persons in the Original Position, unaware of their potential social status in a future society, would be unwilling to risk economic inequalities disadvantaging some for the benefit of others as in utilitarianism. On the other hand, being aware of the general laws of economics, they would be considerate of the fact that equal distribution of wealth could result in disincentives for economic productivity. They would therefore accept inequalities in the distribution of economic goods so long as they were the benefit of the least advantaged. They would select these principles not out of a sense of benevolence, but because as reasoners in the Original Position who might find themselves in any circumstances once the veil of ignorance is lifted, they would wish to ensure that if they are in the worst socio-economic position they might still have the opportunity to pursue their life goals successfully, without being unfairly limited.

"The basic structure can be arranged so that [contingencies] work for the good of the least fortunate. Thus we are led to the difference principle if we wish to set up the social system so that no one gains or loses from his arbitrary place in the distribution of natural assets or his initial position in society without giving or receiving compensating advantages in return. "95

Naturally this principle has come under fire from persons of all political stripes, and much of Theory is given over to the complex task of explicating the comparative rationality of the difference principle over other schemes of economic ordering. These include ordering economic arrangements according to various principles of utility, pure benevolence, or on the basis of moral worth. Despite the importance of these discussions, I will not address them in any detail here, except to say that I am inclined to conditionally agree with Rawls' argument about the favourability of the second principle. It does indeed seem the fairest way to arrange the economic order in a liberal (and/or) democratic society.

These two principles are not intended as ends in and of themselves, but rather to ensure the necessary pre-condition for citizens to pursue the good. In defining this, Rawls refrains from offering either a strict teleological endpoint for human life, or endorsing a purely hedonistic concept of the good. But neither does he turn to utilitarianism for justification. Instead, justice as fairness is meant to ensure that all rational citizens can pursue different, but no less valid, ends throughout life, depending on their respective priorities. Rawls felt that all persons would benefit from this heterogeneity, as it would contribute to the complexity, sophistication and depth of their own life goals. This is another of his important contributions to liberal theory. By moving away from the somewhat rigid Anglo-American conjectures by incorporating Kant and Aristotle into its framework, he breathed greater substance into the largely negative doctrine identified with theorists such as Hobbes and Locke.

"As shown by the notion of society as a social union of social unions, the members of a community participate in one another's nature: we appreciate what others do as things we might have done but which they do for us, and what we do is similarly done for them. Since the self is realized in the activities of many selves, relations of justice that conform to principles which would be assented to by all are best fitted to express the nature of each."96

This is the final end of justice; that it assures the maximum potential for the realization of individual human autonomy and ends, which is the highest deontological end of human value. In this he does not deviate significantly from Kant's argument in the Metaphysics of Morals, which might be called a less sophisticated spiritual precursor to Theory of Justice.

"Freedom (independence from being constrained by another's choice) insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity."97

However, this becomes more contentious when one considers how a society built upon the two principles of justice deals with persons who hold different and competing conceptions of the good. Rawls is sensitive to the dissonances present within society; in fact to such a degree that his later works shied away from articulating a more comprehensive liberal moral doctrine in favour of a narrower political form of liberalism. He came to feel that any attempt to provide such a general theory would not garner "support." Earlier, in Theory of Justice, and again near the end of his life, Rawls noted that he did at one point consider undertaking such a project centered on the broad idea of "rightness as fairness."

"A final remark. Justice as fairness is not a complete contract theory. For it is clear that the contractarian idea can be extended to the choice of more or less an entire ethical system, that is, to a system including principles for all the virtues and not only for justice…Obviously if justice as fairness succeeds reasonably well, a next step might be to study the more general view suggested by the name "rightness as fairness."98

In spite of the tremendous success of Theory,99 from Political Liberalism (1993) onward Rawls sought to develop a conception of liberalism that would be achievable in a pluralistic society. Justice as fairness was now to be considered a "freestanding" view; a political conception of justice meant to deal with the basic structures of democratic society without de-structuring the various comprehensive views which make up what Habermas would call the life worlds of citizens. There are two evident additions and several key re-conceptualizations Rawls' incorporates to differentiate his later ideas. These are important for our analysis due to their being intended specifically to accommodate the fact of pluralism.

The first addition is the ideal of an overlapping consensus, and the second is the forum of public reason. An overlapping consensus is where citizens may have conflicting religious, philosophical and moral views but none the less affirm a shared political conception of justice. This consensus on political morality is to be attained in a pluralistic society by reproducing comprehensive doctrines in the forum of public reason, where they are to be presented in a manner which is assessable to persons who hold to competing doctrines. Rawls calls the agreement on the guidelines of public reason a "companion agreement" to the principles of justice, and they establish the criteria as to what is relevant in discussing political questions, especially those which involve fundamental principles. The act of agreement in the contractual Original Position therefore has two components—with the second dealing explicitly with the need of selected principles to be interpreted in a way which respects the views of pluralistic society.

"First, an agreement on the principles of political justice for the basic structure (for example, those of justice as fairness); and second, an agreement on the principles of reasoning and the rules of evidence in the light of which citizens are to decide whether the principles of justice apply, when and how far they are satisfied, and which laws and policies best fulfill them in existing social conditions."100

Rawls hypothesizes that reasoners in the Original Position would select liberal principles of justice as the best for maintaining a pluralistic democratic society. In this society, public reason would be the means whereby citizens, guided by what he calls both reasonableness and rationality, assess and debate the merits of propositioned judgments or guiding principles through a procedure of reflective equilibrium. Through this procedure citizens or their representatives can arrive at a considered law where the poles of judgment and principle are in harmony. This ensures that the life-world of citizens, consisting of the vast network of sublimated discursive formations, is reproduced in non-alienating institutions, which in turn influences the values of the life-world without the division between them dissolving. Rawls thought that political liberalism could therefore ensure a stable "reasonable pluralism." While a minority of discontents may initially oppose the considered consensus arrived at by representatives in the public sphere, Rawls believed that a balance between life-world and formal institutions would be attained in which most citizens will eventually not acquiesce to the state in a "mere" modus vivendi, but come to see political liberalism as a good in and of itself. The political culture fostered in the broader democratic society of liberalism would benignly orient citizens towards a more profound acceptance of the higher ideals of a well ordered society outlined in the third part of his earlier Theory.

This hermeneutic process ensured that the life-world of citizens is reproduced in non-alienating institutions, which in turn influences the values of the life-world without the division between them dissolving. Here it is worth quoting Rawls at length.

"It remains only to point out the relation between citizens seeing their political society as good and its stability. The more they see their political society as good for themselves both as a corporate body and as individuals, and the greater their appreciation of the political conception in securing the three essential elements of a stable regime, the less they will be prompted by the special attitudes of envy, spite, the will to dominate, and the temptation to deprive others of justice…Theory(at 86) argues that those who grow up in a society well ordered by justice as fairness, who have a rational plan of life, and who also know, or reasonably believe, that everyone else has an effective sense of justice, have sufficient reason founded on their good (rather than on justice) to comply with just institutions."101

The difficulty with this somewhat rosy picture, as Rawls is well aware, arises from the nature of the liberal values he considers necessary to make a stable, reasonably just, political society possible. Despite its immensely greater sophistication, political liberalism retains the tension present in all liberal doctrines over how to deal with what Rawls characterizes as "unreasonable" and even "evil" doctrines. These might include, at least from a western perspective, fundamentally sexist or racist views, such as those held by radical Islamists or Neo-Nazis.

David Dyzenhaus develops precisely this line of critique in his paper Liberalism After the Fall, where he employs the powerful critiques of Carl Schmitt to tease out what he feels are foundational theoretical instabilities within Rawls' conception of liberalism. With Schmitt, Dyzenhaus argues that liberalism cannot decide whether it is a neutral, or as Rawls put it, purely "political" ideology, or one built upon substantive philosophical values. This quagmire is exemplified in the difficulties liberalism has in coping with the fact of pluralism.

Schmitt considered liberalism a double edged doctrine when it came to dealing politically with heterogeneity. On the one hand it denied any theological or metaphysical foundation which would make it incompatible with comprehensive world views. On the other, it created institutions, for instance the forum of public reason or an individual rights-oriented constitution, precisely to protect neutrality by preventing one doctrine from dominating the others. Yet, by providing a set of rights to individuals to protect them from others and the state, it enables groups to freely and safely form which could later endorse comprehensive, potentially illiberal, doctrines. Rawls best discusses his concern with this frustrating difficulty in Theory of Justice.

"For example, suppose those who do not believe in toleration, and who would not tolerate others had they the power, wish to protest their lesser liberty by appealing to the sense of justice of the majority which holds the principle of equal liberty. While those who accept this principle should, as we have seen, tolerate the intolerant as far as the safety of free institutions permits, they are likely to resent being reminded of this duty by the intolerant who would, if positions were switched, establish their own dominion."102

The question of toleration becomes problematic due to the democratic element of liberalism, where such groups may potentially form majorities and attain power. The way liberalism attempts to negotiate this problem is by avoiding politics through law. Judges are made guardians of the constitution, making the very rights that allowed "pluralism to flourish…inviolable against pluralism." The unelected court is thus made to rule in place of the people, exposing the teeth behind seemingly benign neutrality. Liberalism is, according to Schmitt, doomed to shuffle back and forth between democratic neutrality on the one hand and moral authoritarianism on the other.

Dyzenhaus saw Rawls' theory, for all its attempts to accommodate pluralism, as inevitably falling "prey" to Schmitt's critique.103 Rawls argues that political liberalism must be publicly justifiable but is unwilling to settle for a mere modus vivendi due to his concern with achieving a lasting overlapping consensus. Yet this difficulty seems to drive him back from justifying liberalism on purely political terms towards a broader moral contention. Rawls tries to escape this knot by maintaining that the liberal position is free-standing; that is, justifiable in and of itself, separate from any comprehensive conception of the good. This would seem to make it reconcilable with any doctrine. But at the same time, as has already been demonstrated, Rawls understands that not all comprehensive doctrines can exist compatibly with liberalism, and it is on this point that Dyzenhaus argues political liberalism falls victim to Schmitt.

Pressed against constitutional provisions guaranteeing individual autonomy, Dyzenhaus sees Rawls arguing that unreasonable doctrines, and even those doctrines which are not unreasonable but merely illiberal, will ultimately dissipate within the liberal state. Liberalism, Rawls holds does not have to cope with the fact of pluralism, but only with reasonable pluralism. The liberal constitutional order is designed only for those whose comprehensive doctrines make it possible for them to accept political liberalism.

Contrary to some opinions, Rawls does provide a definition of what constitutes a reasonable and an unreasonable doctrine. It appears in Theory of Justice during an excellent discussion on the nature of civic disobedience.

"While the two principles of justice and the related principles of natural duty and obligation define the most reasonable view among those on the list, other principles are not unreasonable. Indeed, some mixed conceptions are certainly adequate enough for many purposes. As a rough rule a conception of justice is reasonable in proportion to the strength of the arguments that can be given for adopting it in the original position."104

Unfortunately this definition is likely to preclude most comprehensive doctrines not premised on a particular philosophical epistemology. Behind its veneer of toleration, even Rawls' theory seems unable to accommodate any substantive pluralism. As Dyzenhaus puts it, this becomes even more apparent in the case of an emergency, where an inflammatory comprehensive doctrine may become so threatening that liberals will have to deny its demand to be heard if they are to maintain the liberal state, with the justification ultimately being that their values are superior. Therefore, illiberal views are ultimately to be "contained if they become effective."105 The normative difficulty Schmitt and Dyzenhaus have with this liberal hegemony is a more fundamental distaste for the resulting atomistic autonomy and materialism.

"It (Political Liberalism) would bring about a homogenous society in which we are not citizens but passive consumers of the space accorded to us by the state. That is, liberal stability depends on liberal homogeneity, which involves, by and large, getting rid of pluralism."106

Or as Schmitt puts it in a far more radical and German fashion in his essay the Age of Neutralizations and Depoliticizations,

"Along with technology, intellectual neutrality had become intellectually meaningless. Once everything had been abstracted from religion and theology, then from metaphysics and the state, everything appeared to have been abstracted above all from culture, ending in the neutrality of cultural death."107

The originality of this critique should no more be overstated than it should be underestimated. It is just as wrong to overestimate its depth than to dismiss it on the basis of Schmitt's Nazism. The weaknesses of contemporary liberalism were detected as far back as Rousseau and later Hegel, who postulated that modern liberal societies must be sensitive to the ethical substance of their community to prevent the fundamental alienation of citizens from one another resulting from the radical heterogeneity of subjective instrumental reason. This is why he postulated, as Schmitt himself did much more radically, that a monarch was necessary as the embodiment of spirit in the concrete. This romantic criticism has been developed in many directions by this point, but has never found a satisfactory philosophy to move past liberalism without running the risk of justifying tyranny; either of the majority in the case of Rousseau and his democratic disciples, or of a more nefarious, despotic variety stretching from Hegel to Schmitt.108

Moving past the Schmittian critique, Dyzenhaus argues that liberalism must accede to its "fall" into democracy if it is to remain morally relevant, therefore placing himself within the conjectures of the Rousseauean project. While there are a number of reasons for being sympathetic to this view, it is important to first assess whether Dyzenhaus and Schmitt are accurate in their critique of Rawls, and by extension liberalism as a whole. I would contend that Dyzenhaus is too quick in dismissing Rawls, and therefore misses important elements of Rawlsian theory which may contribute to the democratic project.

Dyzenhaus and Schmitt assume that the undeniable tension present in most liberal doctrines constitutes a fundamental theoretical, if not practical, instability. Indeed liberals, in line with no less a figure than Hobbes, have always maintained that the best state must always balance on a thin line between too much freedom on the one hand, and too much authority on the other. This is undeniably a difficult path to tread; but that does not mean that it is incorrect. In the case of Rawls' theory in particular, it may be that the state should militate against those doctrines which it finds unreasonable, but if this is done with care and sensitivity, it need not descend into authoritarianism. In Theory of Justice, Rawls maintains that the good society is a society of societies, without a singular teleological orientation, where individuals pursue rational plans of life within the bounds of justice. The analytic distinction between the just and the good is integral to appreciating justice as fairness. Justice is meant to accord citizens the greatest possible power to realize a variety of equally rational plans of life within a community of other persons. While there is an undeniable overlap between the just and the good, it is important not to collapse the distinction.

"Since the self is realized in the activities of many selves, relations of justice that conform to principles which would be assented to by all are best fitted to express the nature of each."109

Liberalism thus attempts to ensure the broadest number of doctrines that can co-exist within a community without impeding on one another. While Rawls does state that these doctrines must draw upon the "family" of liberal values, this family is flexible and broad enough to allow for a plurality of viewpoints, including fairly substantive normative doctrines.110 One need only look at the many Christian Conservative parties throughout Europe, or the successful institution of liberal democracy in India, a country of hundreds of nations, to find empirical evidence for this. The demands of attaining a harmony between liberal institutions and differing values may be difficult, but we can not conclude from that that it is impossible, or wrong.

This brings me leads to a deeper point in liberalisms' favour. It has been implied above that treading a fine line between liberty and authority may well result in the most just society. In the other direction, it seems intuitively correct that, if we take the burden of moral judgment seriously, some doctrines may not be worth protecting. Rawls is sensitive to the needs of citizens to incorporate their particular ethnic values into state institutions; but only is willing to do so if they are willing to offer equal consideration to the views of other reasonable doctrines. That he never gives a nuanced definition of what constitutes an unreasonable doctrine appears to indicate that Rawls understood that no clear line of demarcation could be made. Liberal societies must be guided by their own sense of the good and the just in making this assessment. If one protests that it seems unfair and untenable that the principles of liberalism are to determine what constitutes a reasonable doctrine and what does not, a reply could be made that these principles at least allow for a far wider plurality of views than most other doctrines. Should the critic persist, a demand should be made that they show that the comprehensive doctrines political liberalism struggle with possess at least a degree of moral parity with it.

I do not believe that Dyzenhaus has met these conditions.

The instabilities in Rawlsian liberalism only become evident at a deeper theoretical level than Dyzenhaus explicates. I mentioned before that liberalism can respond to the Schmittian critique by attaining a structurally flexible harmony between democracy and liberal rights. This might be analogous to the way in which an architect stabilizes the immense pressures of a sky scraper by ensuring that they play off one another in a stabilizing fashion; though admittedly under the jurisdiction of an unwise or ruthless government a more proper analogy might be a house of cards.111 Unfortunately, if I am right, this means liberalism must theoretically move towards a calculated state of balance through a reasoning which looks a great deal like the utilitarianism Rawls' wished to avoid. A pertinent Canadian example might include the incorporation of Section 1 into the Charter of Rights and Freedoms. Political liberalism cannot permit the incorporation of values into law when they deviate too much from foundational principles without moving beyond its deontological conjectures. Deontological reasoning, or the Kantian interpretation as Rawls calls it, tends to collapse the distinction between the just and the good through an absolute emphasis on individual autonomy, which itself brings up a host of philosophical and practical problems which Dyzenhaus only hints at. In contrast to this, it seems preferable to theorize about a society where the fact of pluralism can be overcome, if it can be done so in a manner which is not so invasive as to descend into authoritarianism or moral rigidity. To do so, we need to look beyond the rhetoric to the very foundations of liberalism.

The challenge with preferring democracy over liberalism is ensuring individual autonomy against the will of a majority. As Habermas claims,

"...the only solution consists in thematizing the connection between forms of communication that simultaneously guarantee private and public autonomy in the very conditions from which they emerge."112

In addition to securing the bodily integrity of citizens, individual autonomy is necessary in order to move beyond the limitations of dispersive cultural systems discussed in the first part of this paper. It seems we must find a way to balance a democratic ambition with an orientation towards individuation.

7.2 Ideas towards an Authentic Political System

Rawls' concept of individuation and autonomy is explicitly tied to the Kantian paradigm. Indeed, there are a great many congruencies between Theory and Kant's own major work of political philosophy, the Metaphysics of Morals.[113] While there is nothing wrong with that, and indeed, many parts of this project are distinctly Kantian in inspiration, it results in justice as fairness becoming hermetically barred from achieving the ends that it sets for itself. The conjectural limitations of Kant's, and by extension Rawls', conception of individuation limit their ability to conceive of the emancipatory capabilities contained within language itself. As we have shown language not only maintains and allows for the development of binding paradigms—but also possesses the power to engage with them critically through a process of communicative rationality. Communicative rationality is far more ambitious than the liberal project, in that it details how it is possible to arrive at a true consensus over moral issues by postulating those conditions under which we, as persons engaged in dialogue, would accept a moral claim.

"The democratic procedure that institutionalizes the forms of communication necessary for a rational political will-formation must take various conditions of communication into account at the same time. Legislation is carried out in a complex network that includes processes of reaching understanding as well as bargaining."114

Authenticity goes even further than this by hypothesizing about an ontological reference point for all communication: that is, the question of Being itself. This question, seen sociologically, exists anterior to any system of paradigms, and can therefore serve as a universal end point for an ethical pathology and the starting point by which truth claims within the horizon of morality are to be developed. We might refer to this quality as a nexical one. The nexus of Being is the end of modal morality and the beginning of its formal content. Together the two become substantive and realized in an authentic fashion. In this sense I believe a system based on the principle can possess flexibility absent from Rawls' while none the less avoiding his claim that the virtues of authenticity are "insufficient" to construct such an ethic.

A principle of authenticity goes deeper than justice as fairness by asking not only what principles reasonsers in a hypothetical situation would choose to govern a reified world, but to abstract away from even these pre-conceived notions of object and sense. This goes further back even than the veil of ignorance. In this sense, authenticity is also vastly more ambitious than Rawls' project, and the liberal paradigm as a whole. By not addressing the concerns laid out here, liberalism remains open to the criticism of intolerance. Authenticity seeks to avoid this by developing a method by which to step behind culture and knowledge spheres in general to develop a broader horizon of human freedom.

But we have yet to answer the question: what are the consequences of realizing a principle of authenticity politically? We have discussed its ethical character at some length prior to this, but politics brings with it a distinct set of problems. How can it be broadened so that it avoids falling into the same pitfalls of the Rawlsian project? And more importantly, how can we address the important concerns raised by Rawls without returning to the conjectures criticized throughout this work?

At first glance, it might appear difficult to frame a political system out of a principle of authenticity. Unlike Rawls' two principles of justice, this first principle lacks the advantages of simplicity and clairvoyance from which to develop considered judgements. Indeed, it has been exposited throughout this piece primarily through contrast to the paradigms of modernity.

Habermas says that we must look for the substance and normative justification of law in interlocutionary communication streams themselves, rather than mere empirical sociologies or practical reason. What this means cannot be explored formally, since communicative action possesses a dynamism which defies even sophisticated attempts at elucidation. The single largest problem, of course, lies in the dissolution of social spheres of value—paradigms— and the specialized school of legal reasoning. This is a quagmire as old as legal theory itself, and dominates the fruitful but somewhat exhausted debate between legal normativists and positivists. 115

To overcome this, Habermas assigns law a special status as anchor between the self critical life-world and the positive legal system. Law is meant to hover, at times uncomfortably, in the conjectural space between the two and by drawing from both, hold them together without collapsing their distinction. This is where his notion of rights comes in. Unlike Rawls and other liberal theorists, Habermas' originality arises from healing the tension present since Rousseau and Kant between rights as deontologicaly ramified by the individual, and contrarily as granted to members of a community by a polity. From the structural necessity of discursive democracy itself, he draws an adequate list of rights meant to ensure the political and moral autonomy of citizens to participate communicatively in political discourses intended to translate into law.

The somewhat overly continental flavour of this argument does not detract significantly from his argument's ingenuity.116 Habermas characterizes law as a point between life-world and system which can provide a genesis point, or meta-communicative stream, by which to ensure the coherence and congruence of overlapping but dissonant paradigms of modernity. Unfortunately, he hardly goes deep enough outside of legal theory to dissolve the boundaries between these paradigms. Normative assertions outside of rights discourse are only meant to be judged within the median of their validity, which is insufficient to ensure their authenticity. I have traced prior what this might entail in abstraction, now we must see what might be the politico-legal ramifications.

As I have mentioned before, on a deeper level a principle of authenticity—even with its inclusion of an altered form of communicative action—still seems politically abstract. As Schmitt rightly pointed out in his work the Concept of the Political, politics "ha[s] its own criteria that express themselves in a characteristic way. The political must therefore rest on its own ultimate distinctions, to which all action with a specifically political meaning can be traced."117 Unless a principle of authenticity, like justice as fairness, can be shown as capable of meeting these criteria, it cannot serve as a foundation for a politics.

Let us hypothesize—and this is pure speculation— that reasoners (I shall employ Rawls' term here) have indeed successfully reached the point where they are capable and choose to engage in an authentic dialogue concerning ethics. I have suggested that this would ensure they arrived at the most inclusive possible system—one which moves beyond the narrower epistemic limits of competing doctrines. Habermas himself makes this claim concerning communicative rationality; that for it to be complete it must incorporate as many considerations as feasible into a social dialogue.

"Ethical-political discourses must satisfy the communicative conditions for achieving hermeneutic self-understanding on the part of collectivises. They should enable an authentic self understanding and lead to critical revision of confirmation of (aspects of) a disputed identity. The consensus issuing from a successful search for collective self-understanding neither expresses a merely negotiated agreement, as in compromises, nor is it a rationally motivated consensus, like the consensus on facts or questions of justice. It expresses to things at once: self reflection and resolve on a form of life…Discourses for achieving self-understanding require that the cultural traditions of one's own identity be dealt with in a manner at once anxiety-free, reflexive, and open to learning. In the present context, it is especially important that there be no nonparticipants in processes of self-reassurance; in principle, the taking of yes/no positions cannot be delegated to others. All members must be able to take part in the discourse, even if not necessarily in the same way."118

Most ethical paradigms are ecstatically closed, and even communicative action remains bound within the structures of a priori historical understandings by not providing a clear starting point for dialogue. Authentic dialogue commences from the a-temporal nexus of the question of Being itself. It can therefore develop and inter-develop a complex web of interacting principles, values, and finally laws, in an infinite number of ways. The assertions might be compared to the radical events between eternity and time Zizek discusses in his exhilarating book, the Fragile Absolute. A principle of authenticity is meant to radicalize human agency by permanently breaking out of the strictures of ideology.

"On the one hand, an act is, as Kant and Schelling put it, the point at which eternity 'intervenes in time', at which the enchainment of temporal, causal succession is interrupted, at which 'something emerges out of nothing', at which something takes place which cannot be explained away as the outcome/result of the preceding chain...On the other hand, the act is at the same time the emergence of time in/from eternity: as Schelling puts it, the act is the primordial decision/separation [Ent-Scheidung] that represses into an eternal past the deadlock of pure simultaneity...In short, an act proper is the paradox of the timeless/eternal gesture of overcoming eternity , opening up the dimension of temporality/historicity."119

If I am correct in this assertion, it seems reasonable to suggest that any principles selected to govern reasoners, due to their high capacity to be universalized, would possess a legitimacy which would grow as the dialogue engages a greater number of participants in a fair and representative manner. To attain an absolute legitimacy, this dialogue must include a sufficient number of reasoners willing to be guided by the selected principles in order to form a functioning social system. In this sense, an authentic society has a certain homogeneity—its holds to the ideal that all persons will recognize the organizing political principles as the correct ones, at least in the abstract. Unlike Rawls', I also suppose that because authentic dialogue is absolutely inclusive, it can rely on deep support, as reasonsers are engaged in a communal activity and so are driven by more than a sense of self interest and a feeling for the good. In this work, we are not addressing the "cash benefit," to paraphrase Berlin, arising from the institutionalization of a principle of authenticity. We are merely interested in considering the parameters of justice as a worthy question in and of itself for all, rather than simply that which "rational persons concerned to advance their interests would accept in this position of equality to settle the basic terms of their association."120

But what are these boundaries? Unlike the liberal interpretation, they cannot be set permanently for all. Because authenticity is a transformative, dynamic process which I maintain is good in and of itself, the content of ethical principles is of instrumental value. Upon review, they may be reformed and transformed whether through the democratic medium or by initiating a communicatively undertaken restructuring of the parameters of truth claims. None the less, I hypothesize that certain principles would likely be selected over others in an authentic dialogue, since the ethical modality I have sketched is not arbitrary or superfluously related to the content which is derived. I shall not, however, provide a substantive outline here, though Habermas provides a list suggestive for any discourse ethics.121

There is one important exception to this. As I have mentioned, politics has its own concerns and parameters which must be addressed for any political system to be feasible. Since the functioning of politics must be of primary concern of political theory, I maintain with Rawls' that certain considerations have a lexical priority over others. These must be addressed for the potentialities I listed here to be anything more than speculations. This means considering the order of society, including the basic arrangements necessary to ensure the perpetuation and maintenance of an authentic state. Here I believe Rawls is absolutely correct. What these arrangements would be cannot be examined in any depth here; I will only give the rather insufficient hypothesis that I believe authentic reasoners would select organizing principles which look rather like Rawls'—with the caveat that they would likely not be interpreted in the same distinctly liberal fashion. Rather than applying a deontological method of reasoning, principles are meant to be assessed communicatively from the substance of democracy itself. Habermas makes a similar argument in discussing the nature of a hypothetical constitution for an ideal speech community.

"If, under the conditions of a more or less well-established welfare-state compromise, one wants to hold on not to government by law but democracy as well, and thus to the idea of the legal community's self organization, then one can no longer maintain the liberal view of the constitution as a 'framework' regulating primarily the relation between administration and citizens. Economic power and social pressure need to be tamed by the rule of law no less than does administrative power. On the other hand, under the conditions of cultural and societal pluralism, the constitution must also not be conceived as a concrete legal order that imposes a priori a total form of life on society as a whole. Rather, the constitution sets down political procedures according to which citizens can, in the exercise of their right to self determination, successfully pursue the project of establishing just (i.e relatively more just) conditions of life."122

My argument for these principles is not incidental, since justice as fairness, communicative rationality, and authenticity all draw heavily from the Kantian philosophy of freedom. Authenticity goes further than any of them by exemplifying the absolute priority of the question of Being in determining the answer to these questions, and so it is not determined by the same epistemology or epistemological goals. Authenticity seeks to burst out of ideologies, while political liberalism seeks their structural harmonization and even communicative rationality only their increasing self reflectivity. None the less, it seems fully possible to arrive at Rawlsian principles through many different methods of reasoning and thinking, and authenticity is no different.

Consider reasoners engaging in an authentic dialogue on ethics. Their lexically prioritized goal must 1) first be to sustain that dialogue and dynamism which produces universal moral content and 2) ensure that the maximum number of reasonsers are included and engaged in all major decisions which might affect either them, or society as a whole to ensure that such laws are indeed universal. This is the only way to ensure absolute legitimacy for imperatives which are to become law. With these considerations in mind, I believe reasoners would adopt as an organizing principle one which ensured individuals are unrestrained from participating in authentic dialogues.

This requires placing as few constraints on their liberty of conscience as possible—both as a good in and of itself and for the instrumental value of their inclusion in these discussions. It also means that such a society would be democratically organized, within a certain republican civicity. Because the active participation of each person in this democracy is so paramount however, I would attach a positive obligation on this right; that it entails not just the acquiescence but the participation of as many members as possible. This means that the principle of liberty can be interpreted in a benignly illiberal fashion as granting the state license to offer incentives to encourage political participation—or perhaps even mild mechanisms of coercion such as putative fines to persons who do not vote on major issues. These can be sorted out in much more detail and fairness in the future.

Secondly, reasoners would be concerned with ensuring each person had the capability to engage in an authentic fashion with the continuous discourses which reproduce and animate society and the life-world, and would therefore consider that certain conditions must be in place to ensure they have the proper resources and leisure to do so. This seems to require that society provision at the very least a certain degree of primary goods needed to maintain the participation of all. These conditions could potentially be met in any number of ways, whether through Rawls' own difference principle, Sen's capabilities approach, and many other systems and combinations of schemes.123 The most appropriate one would likely be determined on a case to case basis when material equality is necessary to achieve the full autonomy of citizens to participate in private and civic life.

Attached to both of these conditions might be an extensive list of associated basic rights—legal rights, democratic rights, social rights— as they are interpreted by reasoners engaged in authentic dialogue. As mentioned before, an extensive interpretation is beyond the scope of this paper, as well as my own capabilities at this time. Even more so is the question of international justice, and the rights and status owed to persons outside an authentic democracy. I have merely tried, in an exceptionally preliminarily way, to show how the moral conclusions I have arrived at through my critique of modernity might develop in a more concrete political sense: as providing genuine moral content which can serve as organizing and governing principles. I am well aware that much more can be done on this front.

On the other hand, I do not mean to dismiss the path I have traced here. The critique of Rawls' was intended to show the inadequacy of the liberal project as the current dominant political paradigm. At a political level liberalism lacks the flexibility to fully address the democratic needs of the present age, even if its respect for the individual remains a key contribution to political theory. More deeply, it has yet to fully realize the capacity for human freedom, becoming tied to technical and instrumental reason in its pursuit of economic goals. I have suggested how we can go beyond liberalism by engaging in authentic dialogue and developing a system of principles and rights from the substance and form of democracy and communication. In this way, I hope to secure for them greater legitimacy and respect.

But more than this, it would be my hope that a principle of authenticity, interpreted in this way, might help in the age old wish of political theory of creating ideal citizens, engaging one another as individuals within the boundaries of a truly valid and accepted law. Ideology has for too long persisted as a false consciousness which dictates the development of human knowledge and considerations. As a more comprehensive philosophic theory, it is meant to transform more penetratingly than the Rawlsian liberal framework—not to produce monochrome homogeneity, but an engaged population who none the less adhere respectfully to those laws they themselves have willed. Habermas himself hints at this in Between Facts and Norms.

"The legitimacy of legal statutes is determined not only by the rightness of moral judgements but, among other things, by the availability, cogency, relevance, and selection of information; by how fruitful such information proves to be; by how appropriately the situation is interpreted and the issue framed, by the rationality of voting decisions, by the authenticity of strong evaluations, and above all by the fairness of the compromises involved."124

This is all derived from consideration of the most foundational question of Being, which serves as a starting point for a life-world and society meant to exist together in continuously evolving harmony. The most pertinent analogy can only be with David Bohms' theory of implicate order, in which life itself explodes out of the continuously transforming inner logic of the informational universe. Out of the question of Being, we can together develop a dynamic shared life-world from which to derive truly universal law; and we can do it as participants rather than as mere members. Far from proponents of a binding paradigm, human intelligence and creativity are meant to be unleashed in a frightening, but exhilarating fashion. This might be called the furthest and deepest ambition of a principle of authenticity.Continued on Next Page »