The Right to Justification: Elements of a Constructivist Theory of Justice by Rainer Forst

The Right to Justification: Elements of a Constructivist Theory of Justice, Rainer Forst, trans. Jeffrey Flynn (New York: Columbia University Press, 2012; originally published in German by Suhrkamp, 2007), 368 pp., $40 cloth.

The Right to Justification, a thoughtfully selected, tightly knit, and wide-ranging collection of Rainer Forst’s essays in moral and political theory, provides a useful introduction to the thought of one of the most exciting political philosophers working today. By lineage and position, Forst is heir to the Critical Theory school of Horkheimer and Adorno, and more recently of Jürgen Habermas and Axel Honneth. A highly systematic philosopher who has a unified moral and political theory, he is more firmly neo-Kantian than are most others of the Critical Theory school and more thoroughly engaged with work in the Anglo-American tradition.

For readers of this journal the last part of the book, devoted to human rights and transnational justice, would be of most interest. In part three, Forst explains how his unified theory provides a universal and indubitable basis for “constructing” human rights, by which he means both justifying them and generating their content. In addition, he stakes out what he calls a “transnational” position, according to which neither domestic justice (as “statists” urge) nor international justice (as “cosmopolitans” urge) has primacy; rather, each share the same moral foundation. From this foundation, which I come to shortly, he derives some definite and potentially radical implications for transnational distributive justice: Minimally, members of societies plagued by multiple types of domination have a legitimate claim on the various dominators for “the resources necessary to establish a (minimally) justified democratic order” (p. 263). Beyond that, at the “maximal” level he defends a dialogic analogue of Rawls’s Difference Principle: The transnational “basic structure” must be such that it survives the “(qualified) veto right of the worst off” (p. 265).

As Forst sees things, the basis of this qualified veto right is the same as the basis for domestic and international justice. In fact, the basis of all of these is also the foundation of morality as such—namely, the right to justification. This is the right that those who affect you in morally relevant ways justify their actions to you reciprocally and generally. Those who seek to understand the basis of Forst’s views on human rights and transnational justice thus need to attend to part one, which defends and explicates this foundational right. The chapters in this part, which are deep and compressed, are somewhat difficult going. Although many of the essays work dialectically with Forst’s predecessors, their strands of constructive argument overlap to form a continuous rope leading from the foundational to the transnational.

Forst elaborates the foundation of morality, not the foundation of ethics. Following Habermas and some neo-Kantians, Forst uses the term “morality” to refer to unconditional demands on human action that can be universally and indubitably established. Ethics, by contrast, deals with a wide range of still properly normative material that is related to “the good life,” which cannot be so established. This way of contrasting morality and ethics does not reify them as distinct social spheres; rather, we must see how far we can get in universally and indubitably establishing unconditional demands on human action.

To support the foundational right to justification, Forst appeals to a second-order principle of justification, which requires that all actions affecting others in morally relevant ways, all claims of justice against others, and all laws and norms be justifiable in reciprocal and general ways. Echoing Kant, the ideal of reciprocity at work here insists that one must not arrogate to oneself a specific moral status one denies to others. Forst interprets generality via the qualified veto, which is a veto that itself satisfies the principle of justification.

Forst supports the right of justification by showing how it can itself satisfy the demands of the principle of justification. Forst’s deep and elusive argument for this draws on our mutual recognition that we socially operate in “a space of justifications” (p. 59). Our resulting everyday familiarity with expecting and giving reasons means that any justification of the right to justification is unlikely to fail in generality or reciprocity. In thus relying on our everyday experience of shared social life, Forst purposely “turn[s] Kant . . . from his transcendental head onto his social feet” (p. 48).

Because social forms always affect people in morally relevant ways, the principle of justification demands that all social forms be justified. “The core idea of a just social order . . . consists in the idea that its rules and institutions of social life be free of all forms of arbitrary rule or domination. Guaranteeing this is the first task of justice” (p. 189). Because justifying social forms can happen only through actual dialogue, we must construct procedures that allow for reciprocal and general justification. Hence, we must construct democracy, in which the people rule. Polities must also secure people’s basic human rights, which, on Forst’s account, cover those things the denial of which could not be reciprocally and generally justified. Because democracy and human rights thus each rest on the foundational right to justification, their “co-originality” is easy to see.

Since the principle of justification requires that all social forms be reciprocally and generally justified, and since Forst treats this second-order principle and the first-order right to justification as the foundational elements of all of morality, including justice, the close of part one leaves us expecting that he will use these requirements of justification to generate critical conclusions about various social forms. That is precisely what the chapters of part two do. In a similar way, Forst’s simple and unified account of the foundation of morality justifies and explains part three’s views on transnational justice. The “minimal” right of societies burdened by domination to resources that would enable them to establish a democratic order derives from the obligatory character of democracy, just noted as a theorem of the underlying moral view. Transnational justice’s “maximal” demand, that global social forms survive the veto of the least well off, carries to its logical conclusion the principle of justification’s requirement that all social forms (including transnational ones) be justified.

Although much of Forst’s discussion is highly abstract, the book’s penultimate chapter beautifully imagines a conversation in the Global Court of Distributive Justice as it addresses a Brazilian pit-mine laborer’s demand for justification. As this dialogue highlights, Forst’s press for justification has a critical edge, which shows itself in his insistence that discussions of justice take account both of past injustices and of clear sociological insight undistorted by ideology.

Forst’s Right to Justification is a tour de force that exhibits both a compelling, unified vision and a wide range of concrete insights. It ought to be read by all those with an interest in moral or political philosophy or in global justice. I predict that readers will come away, like I have, both deeply impressed and hoping that Forst will find the opportunity to solidify—in a more systematic, less dialectical, and more detailed way—the core view that here provides the foundation on which all of his many substantive and challenging positions on human rights, toleration, democracy, and international justice rest.

Henry S. Richardson is Professor of Philosophy at Georgetown University and is the editor of Ethics. His work has centered on practical reasoning—by individuals (Practical Reasoning about Final Ends, 1994); by democratic polities (Democratic Autonomy, 2002); and by the moral community (by a book in progress tentatively titled Articulating the Moral Community).