Global Justice and Two Conceptions of Practice-Dependence

GLOBAL JUSTICE AND TWO CONCEPTIONS OFPRACTICE-DEPENDENCE Malte Frøslee Presses de Sciences Po | Raisons politiques 2013/3 - N° 51pages 81 à 96

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Pour citer cet article :--------------------------------------------------------------------------------------------------------------------Frøslee Malte, « Global Justice and Two Conceptions of Practice-Dependence », Raisons politiques, 2013/3 N° 51, p. 81-96. DOI : 10.3917/rai.051.0081--------------------------------------------------------------------------------------------------------------------

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Global Justiceand Two Conceptionsof Practice-Dependence

Malte Frøslee Ibsen*

T he notion of practice-dependence has become something of a buzz-word in contemporary political theory. This can seem surprising,

since such dry methodological ideas rarely become the talk of the town.However, practice-dependence has moved to the centre of attentionbecause it promises to solve a number of long-standing problems in polit-ical theory of both methodological and normative character. In its mostgeneral sense, practice-dependence represents the claim that the justifica-tion of fundamental normative principles must be grounded in an accountof existing social practices. That is, rather than prescribing what sort ofpractices ought to exist, the practice-dependence approach takes existingsocial practises for granted and construes fundamental normative princi-ples, such as principles of justice, as constraints on those practices in whichwe are already engaged.

This has the great advantage of furnishing requirements of justice witha determinate institutional content. Rather than demanding the teleolog-ical realisation of an abstract ideal of equality, practice-dependent prin-ciples give both substance and categoricality to considerations of justiceby construing these as moral restrictions on our actual social activity.Accordingly, practice-dependence is often proposed as the solution to oneof the central methodological challenges to Anglo-American politicaltheory, namely that it is too abstract, moralistic and removed from socialand political realities to have any real critical purchase. 1 A practice-dependent account of justice promises to fill this lacuna by offering moralconditions for the justified regulation of existing social practices, ratherthan a far-fetched teleological ideal or politically naïve blueprint forutopia.

* I would like to thank Tobias Berger, Julian Culp, Rainer Forst, Jeffrey Howard, Casper Mølck,Miriam Ronzoni, Christian Rostbøll, Jörg Schaub, Christian Schemmel, and two anonymous ref-erees for their helpful comments and suggestions.

1 - Bernard Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argu-ment, ed. Geoffrey Hawthorn (Princeton: Princeton University Press, 2005); Raymond Geuss,Philosophy and Real Politics (Princeton: Princeton University Press, 2008).

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A different reason for the recent popularity of practice-dependence is thatit seems to promise a solution to a longstanding normative problem in thephilosophical debate on global justice. While fully compatible with a concep-tion of justice as equality or impartiality, practice-dependence has also generallybeen understood to have restrictive normative implications for the scope ofjustice. As Laura Valentini has recently observed, many of the political theoristscurrently congregating under the banner of practice-dependence seem attractedto the approach precisely because it provides an underlying theoretical rationalefor a specific normative position in the debate on global justice – usuallyreferred to as statism – which holds that the scope of justice is limited to thenation-state. 2 Indeed, the claim that practice-dependence entails statism seemsa perfectly straightforward inference: if we must take the institutional form ofour existing social practices for granted, justice seems to impose certain require-ments of equality on the internal organisation of existing nation-states. 3 To besure, practice-dependent accounts of justice might be construed as requiringinter-state regulation of the global background conditions for intra-state jus-tice. 4 However, the current consensus is clearly that practice-dependenceunequivocally implies the rejection of cosmopolitanism, according to whichprinciples of justice are global in scope and require a radical revision of existingsocial practices and far-reaching institutional reforms of the global politicalorder. 5

In this article, my aim is to refute the claim that practice-dependence nec-essarily implies statism. I will argue, firstly, that even if the predominant con-ception of practice-dependence deriving from the work of John Rawls doesindeed support statism, we find an alternative conception in the work ofJürgen Habermas, which entails cosmopolitanism. These radically divergentnormative implications issue from dependence on two different kinds of prac-tice that I call basic practices and institutionalised practices. The argument isthus conceived as completely internal to the practice-dependence approach,and I will not be concerned with defending this approach against externalcriticism. In conclusion, I will contrast Rawls’s dependence on institutional-ised practices and his attendant internal criticism of the nation-state withHabermas’s dependence on basic practices and external criticism of the nation-state, and argue that the circumstances of globalisation give us reason to preferthe latter approach.

2 - Laura Valentini, “Global Justice and Practice-Dependence: Conventionalism, Institution-alism, Functionalism”, Journal of Political Philosophy, 19/4 (2011), 399–418.

3 - Aaron James, “Constructing Justice for Existing Practice: Rawls and the Status Quo”, Phi-losophy & Public Affairs, 33/3 (2005), 281–316; Andrea Sangiovanni, “Global Justice, Reciprocity,and the State”, Philosophy & Public Affairs, 35/1 (2007), 3–39, and “Justice and the Priority ofPolitics to Morality”, Journal of Political Philosophy, 16/2 (2008), 137–164.

4 - Miriam Ronzoni, “The Global Order: A Case of Background Injustice? A Practice-DependentAccount”, Philosophy & Public Affairs, 37/3 (2009), 229–256.

5 - Kok-Chor Tan, Justice Without Borders: Cosmopolitanism, Nationalism, and Patriotism(Cambridge: Cambridge University Press, 2004); Simon Caney, Justice Beyond Borders: A GlobalPolitical Theory (Oxford: Oxford University Press, 2005).

82 - Malte Frøslee Ibsen

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1. Rawls: From (Two Senses of) Practice-Dependence to Statism

Practice-dependence first rose to prominence in the wake of Aaron James’sinfluential article “Constructing Justice for Existing Practice”, which presentsa practice-dependent reading of Rawls’s conception of justice in order to makesense of his highly controversial endorsement of statism. In this section, I wantto elucidate how James’s reading ostensibly supports the claim that practice-dependence entails statism. However, although James offers a compelling clar-ification of the methodological presuppositions of Rawls’s theory as groundedin existing social practices, I will argue that he is insufficiently sensitive to twodistinct senses of practice-dependence in Rawls’s work.

As is well-known, Rawls’s conception of justice as fairness is derived fromthe original position: a hypothetical decision procedure, in which participantsmust agree on principles to regulate their basic terms of social cooperation.The original position “must situate free and equal persons fairly and must notallow some persons greater bargaining advantages than others”. 6 This effect isachieved by confining rational participants behind a veil of ignorance, whichconceals any particular knowledge of their natural talents, personal preferencesor social circumstances, thus ensuring a fair decision: not knowing their placein society, participants will converge on principles to the greatest benefit of theleast advantaged. Specifically, Rawls argues that they will choose two principlesof justice, the first securing “an equal right to the most extensive total systemof equal basic liberties compatible with a similar system of liberty for all”, whilethe second requires any social and economic inequalities to be “attached tooffices and positions open to all under conditions of fair equality and oppor-tunity” and “to the greatest benefit of the least advantaged” (the differenceprinciple). 7

Many have understood the original position as a freestanding moral deci-sion procedure, applicable to a range of contexts outside the constitutionaldemocracy, which is Rawls’s primary object of interest. However, James force-fully argues that such an interpretation represents a fundamental misunder-standing of the role and function of the original position in Rawls’s thought.According to James, “original position reasoning has no authority as such; itmust be grounded in independent judgments about what social practices existand what kinds of agents participate in them”. 8 In James’s reading, originalposition reasoning decisively relies on an account of the point and purpose ofexisting social practice, which provides a “moralized description” of partici-pants’ reasons for engaging in that practice – what James calls the “generalunderstanding” of the practice.

6 - John Rawls, Political Liberalism, expanded edition (New York: Columbia University Press,2005), 23.

7 - John Rawls, A Theory of Justice, revised edition (Cambridge: Harvard University Press, 1999),266.

8 - Aaron James, “Constructing Justice for Existing Practice”, 282.

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More specifically, James claims that the original position is comprised of amoralised interpretation of the basic structure of society, reflecting people’sgeneral understanding of what the basic structure is. According to James, thebasic structure is not only generally understood as a cooperative scheme toproduce various “primary social goods”; crucially, it is also believed to be“subject to assessment under the concepts of fairness, reasonable acceptability,or reciprocity”. 9 In James’s view, the original position therefore represents asort of clarificatory device, which constructs the two principles of justice bymodelling a shared moral understanding of the basic structure as rationalchoice constrained by the veil of ignorance. Although the general moral under-standing is in itself justificatorily insufficient, the conditions of justifiability forthe basic structure are nevertheless ultimately drawn from people’s existingbeliefs about the nature of the basic structure.

However, this reading of Rawls’s theory faces two serious problems. Firstly,it seems to reduce Rawls’s conception of justice to the first half of his dictum“to accommodate our firmest convictions and to provide guidance where guid-ance is needed”. 10 In contrast with James’ view, Joshua Cohen argues that thedifference principle does not simply represent a clarification of our existingbeliefs about the basic structure, but rather an “extension of democratic ideasto guide judgment about distributive justice” in the ongoing “controversy aboutthe legitimate extent and sources of inequality”. 11 Indeed, the meaning of theword “guidance” is crucial here; it suggests that we receive a form of moralinstruction about how to regulate the basic structure, which is independentfrom what we already believe or agree on.

Secondly, James’s reading simply does not make sense of what Rawls sayshe is doing. Rawls clearly identifies the basic structure as the “primary sub-ject of justice”, and defines the former as “the way in which the major socialinstitutions fit together into one system, [... including] the political consti-tution, the legally recognized forms of property, [...] the organization of theeconomy, and the nature of the family”. 12 But Rawls also unequivocallydenies the existence of any “general understanding” of the basic structure.The rather technical concepts of the basic structure and the original positionare explicitly “not seen as ideas familiar to educated common sense butrather as ideas introduced for the purpose of presenting justice as fairnessin a unified and perspicuous way”. 13 This clearly suggests that the basicstructure is a philosophical term of art for the whole societal system of polit-ical, social and economic institutions, as an object of application for prin-ciples of justice and about which we can and do disagree (and therefore need

9 - Ibid., 304.

10 - John Rawls, A Theory of Justice, 18.

11 - Joshua Cohen, “For A Democratic Society”, in The Cambridge Companion to Rawls(Cambridge: Cambridge University Press, 2002), 86–138 and 98–99. My emphasis.

12 - Rawls, Political Liberalism, 258.

13 - Ibid., 15, n.17.


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guidance), rather than the basis for cum object of any general moralunderstanding.

Rather than simply being the interpretive upshot of the general moralunderstanding of the basic structure, Rawls seems to me to suggest that weshould understand the original position as encompassing five fundamental ideasthat are different in kind; three moral ideas are “seen as implicit in the publicpolitical culture of a democratic society”, while the remaining two are distinc-tively presentational ideas that serve different purposes in Rawls’s theory. Thethree moral ideas are: the fundamental idea of “society as a fair system ofcooperation over time”; “the idea of a well-ordered society as a society effec-tively regulated by a political conception of justice”; and “the idea of citizens(those participating in the cooperation) as free and equal persons”. 14 The publicpolitical culture, from which these moral ideas derive, is defined quite narrowlyas the “political institutions of a constitutional regime and public traditions ofinterpretation (including those of the judiciary), as well as the historic textsand documents that are common knowledge”. 15 Although the first compositepresentational idea, the original position, does not itself derive from this publicpolitical culture, it mediates the application of these institutionally embodiedmoral ideas to the second presentational idea, the basic structure of society,which represents a structural account of our existing social practices. Accord-ingly, when Rawls specifies the point and purpose of the basic structure as thecooperative production and distribution of primary goods, this is done for thesake of clarifying the determinate institutional content for our existing socialpractices of three moral ideas that he has already gained in an independentand prior methodological move.

This suggests the need to draw a more systematic distinction between twosenses of practice-dependence in Rawls’s work. Indeed, it seems to me that aprinciple of justice can qualify as practice-dependent (PD) in two distinct ways:by being PD in its genesis, and by being PD in its application. Call a principle,which is PD in both senses, a fully practice-dependent principle. These twosenses of PD reflect two different methodological procedures: in genesis-PD,the moral ideas to which the principle gives expression are derived from themoral norms embedded in existing social practices, whereas in application-PD,these moral ideas are already at hand before their application, in the form ofthe principle, to an existing social practice. That is to say, the methodologicalprocedure of deriving moral ideas presupposes moral norms embedded in socialpractices (practices are logically antecedent to ideas), whereas the methodo-logical procedure of applying moral ideas to a practice presupposes ideas thatcan be applied (ideas are logically antecedent to practices). In the vernacularof the philosophy of language, we might say that genesis-PD has a practice-to-idea direction of fit, whereas application-PD has an idea-to-practice direc-tion of fit.

14 - Ibid., 14.

15 - Ibid., 13–14.


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This distinction enables us to better make sense of the different functionsthat the methodological idea of practice-dependence fulfils in Rawls’s thought.When he notes that his “constructivist political conception [...] develops theprinciples of justice from public and shared ideas of society as a fair system ofsocial cooperation and citizens as free and equal”, 16 Rawls clearly has gen-esis-PD in mind. The three moral ideas qualify as genesis-PD, since they arederived from the political institutions of a constitutional regime and the publictraditions of interpretation (practices-to-ideas direction of fit). However, theseideas are also far too formal and indeterminate to elicit any specific normativeimplications for the regulation of a well-ordered society; we might say thatthey represent the normative structure of the two principles of justice, but notyet what Rawls calls their institutional content. 17

To flesh out a determinate institutional content of these latent moral ideas,Rawls enlists the concept of the basic structure of society and the interpre-tation of its point and purpose as the cooperative production and distributionof primary goods. That is to say, the presentational idea of the basic structureenables Rawls to specify the institutional implications of the three moral ideasfor the whole system of society’s political, social and economic institutions. 18

Rawls clearly has application-PD in mind when he refers to the purpose ofhis conception of justice “as providing in the first instance a standard wherebythe distributive aspects of the basic structure of society are to be assessed” 19

(ideas-to-practices direction of fit). The original position thus mediatesbetween genesis-PD and application-PD in the construction of the two prin-ciples of justice; the abstract moral ideas latent only in the narrow publicpolitical culture are extended to the whole system of society’s political, socialand economic institutions. Accordingly, Rawls’s two principles of justice arefully practice-dependent. 20

Now, the purpose and upshot of James’s practice-dependent reading ofjustice as fairness is to make sense of Rawls’s later work, in which he contro-versially endorses statism. Rather than broadening the two principles of justiceto the global level, Rawls limits their scope to domestic societies understoodas “politically organized” peoples with “common sympathies” 21 (and thus effec-tively nation-states), whereas he envisions a Law of Peoples for “the

16 - Ibid., 90. My emphasis.

17 - John Rawls, Justice as Fairness: A Restatement (Cambridge MA, Harvard University Press,2002), 136.

18 - Ibid., Part IV.

19 - John Rawls, A Theory of Justice, 8. My emphases.

20 - Importantly, Rawls’s two principles of justice do not claim to be justified in virtue of beingfully practice-dependent, but rather in terms of the claim of those principles – and the originalposition from which they are constructed – to match our considered judgments in reflectiveequilibrium. The question of whether Rawls’s theory has relativist or universalist implicationsthus has to be settled at the level of justification in reflective equilibrium. I would like to thankJulian Culp and Jeffrey Howard for enlightening discussions on this issue.

21 - John Rawls, The Law of Peoples, with “The Idea of Public Reason Revisited” (CambridgeMA: Harvard University Press, 2002), 23 and 39.


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international political world as we see it”. 22 Now, this seemingly arbitraryendorsement of the nation-state makes perfect sense once we take into accountthe two senses in which Rawls’s conception of justice is practice-dependent.However, in contrast to James, who thinks that Rawls’s statism is a result of amoralised interpretation of his object of application, it is clear from the abovethat his statism actually derives from the genesis of his two principles of justice.

Since Rawls derives the three moral ideas from the public political cultureof a democratic society, the basic units of moral concern are from the beginningspecified as the citizens of a democratic nation-state – those participating inthe fair system of social cooperation. It is only these citizens that are definedas free and equal, implying that the more general idea of human beings sim-pliciter as free and equal does not play any role in the construction of the twoprinciples of justice. Accordingly, there simply are no moral grounds to extendtheir reach beyond their initial object of application, the basic structure of adomestic society. Indeed, even if Rawls’s empirical musings are incorrect andthere turns out to be a global basic structure, the genesis-PD of the two prin-ciples of justice would still limit their scope to the political institutions ofdomestic society. This is the true basis for the claim that practice-dependenceentails statism. 23

However, as I now want to show, Rawls’s statism does not derive from hispractice-dependent methodology as such, but rather from the particular kindof practices from which his three moral ideas are derived. This requires a dis-tinction between two kinds of practice that I clarify in the following section,before I go on to discuss their normative implications for global justice.

2. Basic Practices, Institutionalised Practices, and Global Justice

I propose to draw a distinction between two kinds of practice that has sofar been overlooked in the literature on practice-dependence and global justice,namely between basic practices and institutionalised practices. This distinctionrefers to social practices at two different levels of generality and determinate-ness, both falling under Rawls’s generic definition of a practice as “any formof activity specified by a system of rules which defines [...] roles, moves, pen-alties, defences, and so on, and which gives the activity its structure”. 24 Bothkinds are thus patterns of human behaviour guided by norms with an

22 - Ibid., 83.

23 - In his “Global Justice, Reciprocity, and the State”, Andrea Sangiovanni makes a practice-dependent argument for statism, which centres on the state’s “provision of a central class ofcollective goods”. His conception can be read as genesis-PD in a sense similar to Rawls’s, sinceit construes the coercive political system of the nation-state, and the norm of reciprocityembedded therein, as a necessary condition for the application of principles of justice.

24 - John Rawls, “Two Concepts of Rules”, in Collected Papers, ed. Samuel Freeman(Cambridge, Harvard University Press: 1999), 20. I have removed the reference to “offices” in thequotation, since this seems to be the one aspect that basic practices cannot plausibly be saidto “define”.


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identifiable normative structure amenable to theoretical reconstruction, ratherthan merely a series of random acts. 25

Basic practices (BPs) are fundamental to any form of human activity.Indeed, they must be considered inherent in human nature, since they reappearin most – if not all – past and existing forms of human life. We can thereforestate cultural and transhistorical invariance as necessary conditions for callinga social practice a BP. Accordingly, BPs often pre-exist human awareness oftheir existence; they are objects of human self-discovery, rather than deliberatehuman constructions. Furthermore, they do not admit of human control orlegal regulation in any meaningful sense, and they can only be abandoned atunbearable costs to human life. In a word: BPs are part of what makes ushuman.

The paradigm example of a BP is language. As 20th century philosophy oflanguage has demonstrated, language is not only a tool by which we commu-nicate; it is the vehicle of all thought and meaning. Frege established that allthought has a propositional structure, while Wittgenstein taught us that anynatural language is always a form of human life. Although we of course do notall speak the same language, the human practice of speaking a language isclearly culturally and transhistorically invariant: whether it is an “innate fac-ulty” as Noam Chomsky claims, or merely a universal “habit” as behaviouristscontend, linguistic ability represents one of the standard definitions harkingback to Aristotle of what distinguishes human beings from the other animals;we are the zoon logon echon –“the word-bearing animal”. 26 However, that isnot to say that language is the only BP. We might also think of such contendersas Marx’s “production of the means of subsistence”, Fichte and Hegel’s (andAxel Honneth’s) “mutual recognition”, and Rainer Forst’s “justification”. 27

Institutionalised practices (IPs) are the kind of practices familiar fromRawls’s work. IPs are culturally variant and historically limited phenomena.Rather than being objects of discovery, they are deliberate human constructionsto which human beings have had a reflexive relationship from the start. Thatis to say, IPs would not have developed had human beings not decided tocreate them, or at some point understood themselves as compelled to do soby their natural and social circumstances. Since the creation and reproductionof IPs is therefore always ultimately dependent on human choice, many insti-tutionalised practices are inherently prone to systemic instability and requirecontinuous legal support.

25 - I do not claim that this distinction is logically exhaustive; merely that it is of particularsignificance for the debate on global justice.

26 - For the classical statement of this definition, see Book One of Aristotle’s Politics.

27 - Karl Marx and Frederick Engels, The German Ideology: Part One, ed. Chris Arthur (London:Lawrence & Wishart, 1970); Axel Honneth, Struggle for Recognition: The Moral Grammar ofSocial Conflicts (Cambridge: Polity Press, 1996); Rainer Forst, The Right to Justification (NewYork: Columbia University Press, 2012).


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We thus need to draw a further distinction between informally institution-alised practices (IIP) and formally institutionalised practices (FIP). The formerrefer to the kind of practices familiar from Foucault’s work or G. A. Cohen’snotion of social ethos, namely those informal social institutions and habitualrules of behaviour that serve important functions (including less benign ones)in the normative reproduction of society. 28 Evidently, IIPs and FIPs form asocial nexus with multiple and complex causal interdependencies. However,we will be concerned mainly with the latter kind, to which the application ofRawls’s two principles of justice is also limited. 29

Unique in its ability to stabilise complex systems of human behaviour,positive law supports FIPs by standardising the behavioural expectations ofparticipants, relieving participants from cognitive burdens concerning therightness or appropriateness of individual actions, and solving collective actionproblems by enforcing general compliance. 30 Indeed, law is simply the meansby which social practices are formally institutionalised. Importantly, the legalformalisation of practices also always entails a legal specification of the prac-tice’s participants. Furthermore, the fact that all FIPs are legally formalisedmeans that they are subject to human control; they can be steered and revisedby legal means to accommodate normative claims or changes in the social ornatural environment. Accordingly, the legal formalisation of a practice is anecessary condition for calling a social practice an FIP.

Paradigm modern examples of FIPs include the various political institutionsof government (democratic or otherwise), bureaucracies, international law, andthe capitalist market – including all its significant subdivisions such as thelabour market, international trade, etc. All these FIPs are legally formalised inthe sense that their very existence or specific institutional character is a resultof having become law. To be sure, primitive markets and natural economiesexisted before their legal formalisation, but as even Friedrich Hayek – theforemost proponent of markets as “spontaneous orders” – readily admits, thehyper-complex economic markets of capitalism require both legal rights toprivate ownership and coercive sanctions against breaches of contract as causalenabling conditions. 31

BPs enjoy two kinds of priority over IPs. Firstly, BPs are causal conditionsof possibility for IPs. This means that IPs presuppose and depend upon BPs fortheir existence and reproduction, whereas BPs are causally independent of IPs.For example, legal formalisation presupposes a shared language not only forthe formulation of law, but also for the communication of law to the participants

28 - Michel Foucault, Discipline and Punish: The Birth of the Prison (London: Penguin, 1991).

29 - For G.A. Cohen’s argument that this limitation is indefensible, see his Rescuing Justiceand Equality (Cambridge MA: Harvard University Press, 2008).

30 - Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Lawand Democracy (Cambridge: Polity Press, 1996), 111–118.

31 - Friedrich Hayek, Law Legislation and Liberty: A New Statement of the Liberal Principlesof Justice and Political Economy (London: Routledge, 1982), chap. 5.


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whose behaviour it is intended to regulate, whereas a language cannot be legallyregulated in any meaningful sense. This causal priority suggests that BPs arein a certain sense the foundation of all social life, and that IPs can be alteredor even abandoned without directly affecting the underlying BPs. Secondly, wemight also say that BPs enjoy a kind of conceptual priority over IPs in the sensethat all instances of IPs are also instances of language, whereas the opposite isdemonstrably not the case. However, this merely suggests that we try and makesense of IPs in terms of BPs, rather than the other way round; IPs are thus tobe understood as determinate forms, or as certain specific ways of employing,the genus of BPs. 32

We are now in a position to elucidate the normative implications for globaljustice of methodological dependence on BPs vis-à-vis IPs. It should be obviousthat there will almost always be differences in empirical extent between BPs andIPs. BPs are per definition culturally and historically invariant and thus globalhuman practices, whereas IPs are culturally and historically limited social andpolitical institutions that might or might not be global in extent. That is to say,the extent of IPs is contingent, whereas the extent of BPs necessarily is global.

However, it is also clear that there are very few global IPs in the way thatlanguage is a truly universal human phenomenon. Even the capitalist market,which is probably the closest thing we get to a global IP, has not yet subjectedevery single human community on Earth to its “iron law” of supply anddemand. This is even more clearly the case with those IPs that explicitly embodynorms of justice and thus are of primary interest for the genesis of principlesof justice, namely our domestic political institutions. These have uncontrover-sially retained the fragmented institutional character of the Westphalian systemof sovereign nation-states, even while economic markets and chains of pro-duction have effectively gone global.

Corresponding to this difference in empirical extent between BPs an IPs,is a difference in the normative scope of derivable principles. To simplify things,assume that the scope of a principle tracks the extent of the existing socialpractice and the embedded norms from which it is derived. 33 On this assump-tion, it is clear that the very idea of BPs entails the idea of global norms. Accord-ingly, it entails the idea of universal principles that derive from social reality,since they are practiced by the whole species of human beings. Of course, thisidea does not mean that there actually are any BPs with concomitant globalnorms of any interest to political theory. However, assuming for a momentthat there are such BPs and concomitant global norms, it is also clear that ifprinciples of justice could be derived therefrom, justice would undeniably beglobal in scope.

32 - See John Searle, The Construction of Social Reality (London: Penguin, 1996); Making theSocial World: The Structure of Human Civilization (Oxford: Oxford University Press, 2011).

33 - This is by no means a trivial assumption; one can perfectly well imagine a norm, which isonly practiced by a limited group of individuals, but which is nonetheless universal in scope. Theassumption is nonetheless justified by the fact that narrower scope will often go together witha more determinate specification in genesis-PD of the basic units of moral concern.


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By contrast, most of the norms that govern existing FIPs are signifi-cantly more limited in extent. Most importantly for our present discussion,those norms that embody norms of justice are clearly limited to the polit-ical institutions of existing nation-states. Consequently, if principles of jus-tice can only be derived from those political institutions, and, crucially,must take the legally defined participants of these FIPs as the basic unitsof moral concern, then the normative scope of those principles will clearlybe limited to institutions and participants. Indeed, if FIPs (and thus ourdomestic political institutions) represent the only norms available for theconstruction of principles of justice, justice would undeniably be limited tothe nation-state.

At this point, I am not interested in adjudicating this normative disagree-ment but merely in noting its conceptual structure: if we drive principles ofjustice from the norms of BPs and thus take human beings as such as the basicunits of moral concern, the scope of justice will clearly be global, whereas ifwe construct principles of justice from the norms of existing FIPs and taketheir legally defined participants as the basic units of moral concern, justicewill be limited to citizens of the same nation-state. The following importantresult thus represents different normative implications within practice-depend-ence methodology: principles of justice that are genesis-PD in BPs entail cosmo-politanism, while principles of justice that are genesis-PD on existing FIPs entailstatism.

As we have seen, Rawls’s two principles of justice are fully practice-dependent on IPs: the three moral ideas are derived from the political insti-tutions of a constitutional regime and public traditions of interpretation,implying that the two principles of justice are genesis-PD on both FIPs andIIPs (since the public traditions of legal interpretation cannot themselves beformalised). Rawls’s statism is a direct implication of this genesis-PD on IPs,since the citizen is specified as the basic unit of moral concern.

However, the distinction between BPs and IPs opens up the playing fieldfor practice-dependence methodology; if fundamental normative principles canbe derived from BPs, then the claim that practice-dependence necessarily entailsstatism can be undermined. Indeed, we will then have paved the way for analternative conception of practice-dependence entailing cosmopolitanism. Ofcourse, we cannot simply take the possibility for granted that we can actuallycash in on this conceptual possibility. However, as I now want to show, wefind precisely such a case of genesis-PD on BPs in the work of Jürgen Hab-ermas, whose fundamental normative principles are fully practice-dependentand entail cosmopolitanism.

3. Habermas: From Practice-Dependence to Cosmopolitanism

Habermas reconstructs his so-called discourse principle, which states that anorm is justified only if it can command the assent in a practical discourse ofall those affected by it, from the pragmatic presuppositions of the intersubjective


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justification of norms. 34 This reconstruction is enabled by Habermas’s insightthat the ability to speak a language involves knowledge not only of its grammat-ical structure, but also of the acceptability conditions for various kinds of validityclaims. Accordingly, he is able to reconstruct the “deep normative structures”embodied in linguistic communication from the necessary knowledge forspeakers to be able to redeem different kinds of validity claims, irrespective oftheir particular language. 35 By this procedure, Habermas reconstructs the uni-versalisation principle from the pragmatic presuppositions of moral discourse,which states as a condition of acceptability for norms of justice that all thoseaffected by them can accept the consequences that their general observance canbe anticipated to have for the satisfaction of everyone’s interests. 36

To be sure, neither the discourse principle nor the universalisation principlerepresent principles of justice; the former specifies impartial justifiability as acondition of acceptability for any kind of norm, whereas the latter specifiesequal consideration of interests as the condition of acceptability for norms ofjustice. However, both of these principles are genesis-PD on the BP of language;accordingly, they are both universal in scope, since they specify any languagespeaker affected by the norms in question as the basic unit of moral concern,meaning – potentially – all human beings. Evidently, the sense in which Hab-ermas’s fundamental normative principles are genesis-PD is different from thatencountered in the discussion of Rawls. Since Habermas does not want to relydirectly on explicit moral ideas of the public political culture, he looks to thefundamental norms that implicitly guide communicative interaction – like ananthropologist in the field, who interprets the rules of a game with which sheis unfamiliar by reconstructing the norms that participants are guided by whensuccessfully participating in the game.

Habermas recognises the highly abstract and formal nature of these fun-damental normative principles. But he claims, as a matter of empirical soci-ology, that the discourse principle already has an institutional content in socialreality, since it is in fact embodied in modern democratic law. However, itis crucial to keep in mind that Habermas’s reconstruction of principles fromthe BP of language represents an attempt to locate an ”immanent transcen-dence”, which always operates on both the factual/sociological and the ide-alising/normative level. This point is particularly pertinent in hisreconstruction of democratic law, since he makes the twofold claim that thediscourse principle is actually embodied in democratic legal orders, and thusimmanent, while simultaneously representing the transcendent normativecondition of justifiability for a modern legal order. At the normative level,the discourse principle receives a specific institutional content through its

34 - Jürgen Habermas, Moral Consciousness and Communicative Action (Cambridge: PolityPress, 1992), 66.

35 - Jürgen Habermas, On The Pragmatics of Communication (Cambridge, MA: MIT Press,1998), chap. 1.

36 - Jürgen Habermas, Moral Consciousness and Communicative Action, 65.


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application to law, eliciting the democratic principle: “only those statutes mayclaim legitimacy that can meet with the assent of all citizens in a discursiveprocess of legislation that in turn has been legally constituted”. 37 However,since democratic law controls and regulates all FIPs in society – where thebureaucracy and the economy are of particular moment – Habermas empha-sises that its legitimacy depends on other discourses than justice discoursesalone. 38 This is why the discourse principle takes centre stage in his normativeaccount of democratic legitimacy, as the universalisation principle is not initself a sufficient (although it is a necessary) condition of democratic legiti-macy. Since they are specified according to the point and purpose of existingFIPs, Habermas’s fundamental normative principles are evidently also appli-cation-PD on FIPs. Accordingly, they are fully practice-dependent.

Now, the upshot of Habermas’s reconstruction of the discourse principlefrom the BP of language is to locate its genesis at a more fundamental levelthan its embodied form in existing democratic law. This implies that the nor-mative scope of the discourse principle transcends the empirical extent of theFIPs in which it is presently embodied. The discourse principle rests ultimatelyupon a universal normative foundation, with which its present embodimentin existing FIPs stands in a clear relation of normative implicit tension. Indeed,this implicit tension has broken to the fore in Habermas’s recent writings, inwhich he explicitly endorses cosmopolitanism and calls for a fundamentalreform of our current legal and political institutions.

The need for such reforms, Habermas argues, derives from the fact thatnation-states no longer have the regulative capability to confront the challengesof globalisation; existing political institutions are rapidly losing their ability topreserve democratic legitimacy and remedy injustices caused by interstate com-petition for the whims of globalised markets. His recent work thus focuses onhow our legal and political institutions can be brought up to regulative speedwith globalisation, and how we can ensure that those institutions are subjectto legitimation in transnational democratic discourse. In other words: how canthe discourse principle be legally formalised in a new form appropriate to theradically altered circumstances of globalisation? Habermas’s response to thisnormative question about institutional content takes the form of a “constitu-tionalisation of international law” and the gradual reform of the Westphaliansystem of nation-states towards a transnational legal and political-institutionalorder. 39

37 - Jürgen Habermas, Between Facts and Norms, 110.

38 - See, in particular, for remarks on what Habermas calls “pragmatic” discourses (bargaining)and “ethical-political” discourses (questions about the good life), Between Facts and Norms,108.

39 - Jürgen Habermas, The Post-National Constellation (Cambridge: Polity Press, 2000);Between Naturalism and Religion (Cambridge: Polity Press, 2005); The Divided West (Cambridge:Polity Press, 2006).


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Conclusion

I conclude that the current consensus on the claim that practice-depend-ence necessarily entails statism is misguided. As we’ve seen, the predominantconception of practice-dependence – familiar from the work of John Rawls –does indeed entail statism, since it construes principles of justice as genesis-PDon existing IPs. However, we have also identified a conception of practice-dependence – realised in the work of Jürgen Habermas – that entails cosmo-politanism, since it construes fundamental normative principles as genesis-PDon BPs. The question is, which conception to prefer?

Rawls has two official reasons for effectively ignoring globalisation andconstruing his two principles of justice as application-PD on the basic structureof domestic society, namely that the effects of these practices are “so profoundand present from start”, and that “political injustice” within this frameworkhas been responsible for “the great evils of human history”. 40 However, theseare highly questionable claims, since one could just as plausibly claim that thereexists a global basic structure on the first condition, 41 while the Westphalianframework of nation-states might itself seem to live up to the second condition,given its imperial foundations and continued reverberations. 42 Indeed, theobvious disputability of these claims seem like an incredibly porous foundationfor the significance that Rawls consistently assigns to the nation-state in theapplication of his two principles of justice.

However, one might speculate that Rawls’s real reason for relying so heavilyon these practices should be sought in the genesis-PD of his principles, namelythat the political institutions of the nation-state are the only FIPs that embodysufficiently strong norms of justice to allow for their internal criticism – thatis, evaluation according to internal normative standards. This internalist con-ception of PD would not only make sense of Rawls’s awkward unwillingnessto take account of globalisation, but also his insistence that “liberal peoples”ought to tolerate “decent nonliberal peoples” and have no grounds for imposing“political sanctions” on them. 43

In contrast, even if Habermas’s latent cosmopolitanism has only truly sur-faced under his increased appreciation of the altered circumstances of global-isation, he has in fact consistently subjected the social and political institutionsof the nation-state to external criticism, by evaluating existing FIPs with refer-ence to norms embedded in BPs. Clearly, his externalist conception of PDdepends on the political institutions of the nation-state only in the limitedsense that it considers these FIPs an empirically contingent (and increasingly

40 - John Rawls, A Theory of Justice, 7; The Law of Peoples, 6–7.

41 - See Allen Buchanan, “Rawls’s Law of Peoples: Rules for a Vanished Westphalian World”,Ethics, 110/4 (2000), 697–721.

42 - James Tully, Public Philosophy in a New Key. Volume II: Imperialism and Civic Freedom(Cambridge: Cambridge University Press, 2008).

43 - John Rawls, The Law of Peoples, 59–60.


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insufficient) object of application, whereas the internalist conception dependson these political institutions in a further and much more fundamental sense,namely as moral enabling conditions.

Now, even if Habermas is wrong that globalisation represents such a pro-found threat to the ability of nation-states to preserve democratic legitimacyand constrain injustice, it seems deeply counterintuitive to rule out normativeconsideration of this possibility on methodological grounds. However, if Hab-ermas’s empirical analysis is correct (which I believe it is), then Rawls’s inter-nalist conception seems highly precarious indeed. In that case, Rawls’sdependence on existing FIPs looks like a misplaced methodological embraceand normative insulation of antiquated political institutions that are in urgentneed of reform.

In fact, even if the internalist conception of PD might be able to registerglobalisation’s threat to nation-state’s regulative capability as a form of injus-tice, it would still face the deeply paradoxical position that it could not counseltransition to more appropriate political institutions, since such a transitionwould undermine that internalist conception’s moral condition of possibility.In a world in which we urgently need guidance in responding to the challengesof globalisation, we cannot afford even the possibility of such methodologicaltragedies. Indeed, if practice-dependence is to redeem its promise of returningcategoricality and critical purchase to Anglo-American political theory, it mustnot only face up to the social, economic and political realities that do andought to accompany globalisation. It must also look to those norms and basicpractices in which we all, as human beings, partake.

MALTEFRØSLEE IBSENMalte Frøslee Ibsen is a Doctoral Candidate in Political Theory at the Institute for PoliticalScience, Goethe University Frankfurt. He works under the supervision of Professor RainerForst on a project entitled “The Idea of a Critical Theory of Global Injustice.” His researchinterests include global justice and the intersection between critical theory and analyticalpolitical theory.

ABSTRACTGlobal Justice and Two Conceptions of Practice-Dependence

Practice-dependence has recently gotten a lot of press in political theory, not only formethodological reasons, but also because of its ostensible support for statism – the viewthat the scope of principles of justice is limited to the nation-state. This article aims torefute the claim that practice-dependence necessarily entails statism. It distinguishes twosenses of practice-dependence in Rawls’s work in order to elucidate how statism followsnot from Rawls’s practice-dependence methodology as such, but from the kind of practiceson which his conception depends. By distinguishing basic practices from institutionalisedpractices, we can identify a conception of practice-dependence, realised in the work ofJürgen Habermas, which entails cosmopolitanism. Finally, the article contrasts Rawls’sinternal criticism of the nation-state with Habermas’s external criticism and argues infavour of the latter approach.


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RÉSUMÉLa justice globale et deux conceptions de la dépendance aux pratiques

La dépendance aux pratiques a récemment reçu une attention soutenue en théorie polit-ique, pas seulement pour des raisons méthodologiques, mais aussi en raison de son sou-tien ostensible à l’étatisme – la position qui veut que la portée des principes de justicesoit limitée à l’État-Nation. Cet article vise à réfuter l’affirmation selon laquelle la dépend-ance aux pratiques conduit nécessairement à l’étatisme. Il distingue deux sens de ladépendance aux pratiques dans les travaux de Rawls afin de clarifier la façon dont l’éta-tisme découle, non pas de la méthodologie rawlsienne en tant que telle, mais plutôt dugenre de pratiques dont sa conception dépend. En distinguant les pratiques fondamentalesdes pratiques institutionnalisées, nous pouvons identifier une conception de la dépendanceaux pratiques, à l’œuvre dans les travaux de Jürgen Habermas, qui conduit au cosmopo-litisme. L’article contraste enfin la critique interne de Rawls concernant l’État-Nation avecla critique externe de Habermas, et se prononce en faveur de cette dernière approche.


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Global Justice and Two Conceptions of Practice-Dependence

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