Kant and the Basic Structure

Institutions, Coercion and Moral Dualism

Term Paper, 2021

19 Pages, Grade: 1,0



1. Introduction

2. Cohen and Murphy vs. Rawls

3. Rawls’s circle

4. Kant’s Account of Institutions: Political not Metaphysical

5. “Taking People as They are”

6. Kant’s Moral Dualism

7. Conclusion


1. Introduction

Rawls’s claim that the primary subject of justice should be the basic structure of a society – I shall call this his basic structure claim - has been a central point of discussion for a variety of debates within political theory. Not only has it been attacked from both libertarians and socialists alike, but it has also played a crucial role in feminist critiques of Rawls. Above all, its importance can hardly be overstated with regards to questions about transnational justice: The cosmopolitanism-vs.-statism debate can to a large part be traced back to different conceptions of the basic structure, respectively resulting in different views about the scope of principles of justice.1

In contrast to the pivotal significance of this claim, however, Rawls seems to assume rather than really justify it, which is part of why many have found it dubious at least, if not straightforward wrong. After shortly outlining the core aspects of that discussion in section 2, my aim in this paper will therefore be to develop a more profound account of the basic structure, based on a particular interpretation of Kant’s Doctrine of Right. In doing so, I seek to answer two questions. The first is: In which sense are institutions “different” subjects of justice after all? This question will be addressed in section 3 and 4. The second is: How do normative principles apply differently to institutions than they do to individual conduct? This will be the topic of section 5 and 6.

My inquiry is guided by the strong intuition that the claim to use coercion in the name of justice requires justification of a special kind. To use Arthur Ripstein’s words, I think that the basic structure is in this sense not concerned with “the moral philosopher’s familiar question of how people ought to treat each other, but the distinctively political question of how they may legitimately be forced to treat each other” (Ripstein 2004, p. 6). This links the basic structure claim to classical social contract theories, between which - for reasons that I need to give within the course of this paper - I hold Kant’s version to be the most fruitful one for our purposes. I will hence understand the basic structure as the sum of institutions that possess the legal authority to determine rules which can be, at least in principle, coercively enforced. This definition obviously includes the three classical branches of government, but it should also apply to things such as the tax system or central banking.2 I will therefore exclude the somewhat “mysterious” (Hodgson 2012, p. 330) case of the family, regarding to which Rawls himself seemed to have vacillating – if not incoherent (Chambers 2013; Cohen 1997) - views, sometimes including it into his definition of the basic structure (most notably in A Theory of Justice and Political Liberalism) and sometimes not (Rawls 1977, 1985).

Before I start, let me note two remarks in advance with regards to the two authors this paper is mostly about: First, I will not discuss Rawls principles of justice in particular – there might be good reasons for or against them independently of our topic - but only his basic structure claim. Given the variety of discussions that have originated around it, I think that this is an issue worth investigating for its own sake. Second, I will try to avoid the exegetical details of debates regarding Kant’s political philosophy in general. Although I believe that my interpretation is faithful to his writings and could sustain text-based criticism, I am well aware of the fact that it stands in contrast to other readings who can claim to be backed up by textual evidence equally. My aim here is not primarily an exegetical one, but rather the attempt to bring more conceptual clarity into contemporary debates of political philosophy.

2. Cohen and Murphy vs. Rawls

Cohen’s critique of the basic structure claim marks the endpoint of a line of criticism he developed against the Rawlsian project for almost 20 years, starting with an argument that he first articulated in his 1991 Tanner Lectures. Here, Cohen famously pointed towards an inherent tension within Rawls’s difference principle – to wit, that it seems to presuppose somewhat schizophrenic agents, both endorsing and rejecting the principle at the same time. He summarizes his argument as follows:

„The difference principle can be used to justify paying incentives that reduce inequalities only when the attitude of talented people runs counter to the spirit of the difference principle itself: they would not need special incentives if they were themselves unambivalently committed to the principle. Accordingly, they must be thought of as outside the community upholding the principle when it is used to justify incentive payments to them” (Cohen 1991, 268f.).

On the one hand, Rawls assumes that all members of a society need to agree with the general goal of improving the situation of the worst-off. On the other hand, the principle relies heavily on the idea that those who are in a position to achieve that goal – that is, those who are able to increase the “cake” which then can be distributed on all members of the society- need special economic incentives for doing so. Hence, the goal of those “high-flying marketeers“ (Cohen 2008, p. 118) cannot really be to promote the aim of the principle, for if that would be the case, they could simply do so, and no further incentives would be needed. Cohen concludes that a principle which not only allows for, but even presupposes such attitudes does not really deserve to be called a principle of justice (Cohen 1991, p. 328).

In a later article as well as in his late work Rescuing Justice and Equality, Cohen developed this argument further and defended it against what he called the “basic structure objection”, which holds that Rawls intended the difference principle to apply only to the basic structure of a society and not to personal choices. Cohen argues that the basic structure objection does not succeed, since Rawls has no way out of a fundamental dilemma (Cohen 1997, pp. 21–22; Cohen 2008, pp. 132–133): Either the term “basic structure” is too vague to exclude personal choices, or it is too narrow so that Rawls cannot explain its outstanding significance as a subject of justice anymore.3 (As we will see in the next section, Rawls indeed seems to have some problems facing that dilemma, which will set the stage for my specifically Kantian account of the basic structure.) Any plausible principle of justice, Cohen argues, must require an ethos shared by the members of a society that lies beyond the reach of coercive institutions.

As I said, my aim here is not to defend Rawls principles of justice in particular. But it seemed that Cohen came across a question worth investigating for its own sake: Is it plausible to distinguish between different normative principles, respectively applying to different subjects? It was Liam Murphy who took the debate onto this more abstract level and, siding with Cohen, answered in the negative. He framed the problem thusly:

„I am interested in the specific claim that the two practical problems of institutional design and personal conduct require, at the fundamental level, two different kinds of practical principle. I will use the label “dualism” for this claim and “monism” for its denial. […] What monism rejects is that there could be a plausible fundamental normative principle for the evaluation of legal and other institutions that does not apply in the realm of personal conduct” (Murphy 1998, p. 254)

In what follows, I will follow his terminological suggestion and use the labels “monism” and “dualism” for the positions in question. However, it must be stressed that they do invite to at least two misunderstandings: First, they suggest being exhaustive, as if the only question was if there were one or two realms of justice (cf. Pogge 2000, p. 154). Obviously, many political theorists would (and did) object to this, and they would legitimately do so out of a variety of different theoretical backgrounds and reasons. Hence, my following argument against monism should not commit us to the view there are only two realms of justice. The only claim I want to defend is that we should at least distinguish the basic structure as subject to distinct normative principles, leaving open the possibility that there might be other “realms” of justice – although Kant himself clearly advocates a dualistic view, as we will see in section 6. Second, and in contrast to the seeming grip of both labels, they can be applicated rather vaguely, which might lead to the problem that the disagreement in question is a merely verbal one. As I will argue in section 6, for instance, I think that Murphy himself is guilty of such an inaccuracy: During the course of his argument, I shall claim, he loses his target – that is, the claim that that institutions require normative principles of a distinct kind - and ends up arguing against the different (and undeniably more problematic) claim that individuals have no responsibility for justice.

3. Rawls’s circle

In the next two sections, I will address the question why and in which sense we should see the basic structure as a distinguishable subject of justice at all. It strikes me that Cohen and Murphy do not really try to answer this question sincerely – they take the existence of a basic structure for granted and argue that it should be just one case among others similarly subject to the demands of justice. However, I think that the neglect of this question is not so much a point that they charitably concede to Rawls, as one might think, but rather part of the reason why they cannot fully accommodate the distinctive kind of normative issues the basic structure gives rise to. However, the obscurity in this question stems at least partly from Rawls himself, since his own views on this matter are, as we will see, not entirely coherent either.

It seems to be both natural and common to have a somewhat instrumental view about institutions:4 In a non-ideal world, institutions are necessary means to approach the ideal of justice. But howsoever this ideal might be spelled out in detail, it can be defined independently from the concept of institutions, for justice could in principle be achieved without institutions, if only the circumstances would be more fortunate. Philosophically speaking, one could say that according to the instrumental view, justice is conceptually prior to the institutions through which it is approached. Cohen and Murphy are no exception to this view. Murphy, for instance, argues that “we should not think of legal, political, and other social institutions as together constituting a separate normative realm, requiring separate normative first principles, but rather primarily as the means that people employ the better to achieve their collective political/moral goals” (Murphy 1998, p. 253, my emphasis).

In contrast to this widespread view, however, both Rawls’s and Kant’s views on these matters are rather different. Rawls famously begins A Theory of Justice with the claim that “[j]ustice is the first virtue of social institutions, as truth is of systems of thought” (Rawls 1999 1971, p. 3), indicating that his view of justice is intrinsically linked to the concept of institutions. In the course of his later “political” turn, he stated even more explicitly that justice as fairness is in fact confined to the case of the basic structure, and that it is precisely this aspect which renders it a political (rather than a comprehensive) conception in the first place. He writes: [J]ustice as fairness is intended as a political conception of justice. While a political conception of justice is, of course, a moral conception, it is a moral conception worked out for a specific kind of subject, namely, for political, social, and economic institutions. In particular, justice as fairness is framed to apply to what I have called the „basic structure“ […]. [J]ustice as fairness is not intended as the application of a general moral conception to the basic structure of society, as if this structure were simply another case to which that general moral conception is applied.5 (Rawls 1985, 224-225)

However, Rawls views on this issue have been notoriously subject to a lot of debate ever since (Chambers 2013; Hodgson 2012). Undoubtedly, he did contribute to this obscurity. He barely explained why and in which sense we should regard the basic structure as the primary subject of justice in A Theory, and when he tried to make good for this lack later, it pretty much seemed that he fell back into the instrumental view which he had rejected in the first place: He argues that it is of special importance because it secures “background justice” and its profound influence on regulating inequalities (Rawls 1996, pp. 265–271). We can’t help but finding this explanation question-begging: First, Rawls says that what makes his conception of justice a distinctively political doctrine is its special subject; and when we go on to ask what is so special about that subject, he says it is special due to its profound effect on justice. So Cohen seems to be perfectly entitled to ask: “why should we care so disproportionately about the coercive basic structure, when the major reason for caring about it […] is also a reason for caring about informal structure and patterns of personal choice” (Cohen 1997, p. 23)? Rawls, so it seems, is confronted with a circle-dilemma: He can either distinguish his conception of justice by reference to its subject, or he can explain the significance of that subject by reference to his conception of justice, but he can’t do both at the same time. What he needs, I think, is an account of the basic structure that is both non-instrumental but still political in order to get out of the circle. If no such account can be delivered, he cannot plausibly restrict his theory to the basic structure, and hence cannot claim to have a political conception of justice as he defines it. This leads us to Kant: I believe that he has a unique and promising way to think about institutions, and that he argues for precisely such a conception.6

4. Kant’s Account of Institutions: Political not Metaphysical

This might seem irritating at first glance: The textbook-image of Kant is that of a moral monist par excellence. For most readers – and Rawls is no exception here (cf. Pogge 2002) - his political philosophy is to be seen as a mere derivation of his “comprehensive” moral philosophy or, more precisely, as an application of the supreme principle of morality (the categorical imperative) to the “case” of coercive institutions, and this widespread interpretation has been challenged only recently.7 I will try to avoid the details of that - primarily exegetical - discussion here, and will limit my focus to arguing that Kant provides us with an account of institutions that is both non-instrumental (as a mere means for achieving what morality demands) as well as political in the Rawlsian sense. For Rawls, any political conception must be faithful to two things: First, it needs to take persons as free and equal (1.), and second, it has to take seriously the issue of reasonable disagreement (2.).8 I will now argue that Kant’s account of institutions not only allows for


1 For a libertarian critique, see, most notably, Nozick (1974, 204ff.) The socialist critique is most famously pursued by G.A. Cohen, who will be of closer interest for us. The feminist critique of Rawls was prominently pursued by Susan Moller Okin, for a illuminating treatment of the issue of the basic structure in this regard, see Chambers (2013) Regarding the role of the basic structure in the international distributive justice debate, see Blake and Taylor Smith (2020).

2 Central banks are included in my definition in virtue of their claim to possess the monopoly in regulating the monetary base (which is, in the end, secured through state-coercion).

3 As stated in the introduction, I will try to defend the second horn of the dilemma and stick to the “legally-coercive” reading of the basic structure.

4 Here, I bring together thoughts that can similarly be found in Ripstein (2004) as well as in Heath (2005, pp. 199–203).

5 See also Rawls (1996, pp. 11–12) I think that this passage clearly shows that Murphy is wrong when he interprets “the case for dualism to be largely independent of the main themes of Political Liberalism” (Murphy 1998, p. 255) However, he is right that Rawls justification for his view is at least incomplete, as we will see.

6 It is worth noting that also Ripstein suggests such a reading, even though he does not develop it: “I believe that there is a more Kantian way of understanding the entire Rawlsian enterprise, focused on his conception of persons as free and equal, and on his emphasis on the coercive structure of society. If such a reading of Rawls is possible, it is certainly not the dominant one, and this is not the place to develop it.” (Ripstein 2009, p. 9)

7 One paradigmatic example for the traditional reading can be found in Paul Guyer (2000, see especially ch. 7), although many others could serve as an example here. The traditional reading has been challenged most notably by Allen W. Wood, Marcus Willaschek, Christoph Horn and Arthur Ripstein. An ancestor of their views that deserves to be mentioned is Julius Ebbinghaus.

8 As Rawls writes: “[T]he problem of political liberalism is: How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines?” (Rawls 1996, p. xx).

Excerpt out of 19 pages


Kant and the Basic Structure
Institutions, Coercion and Moral Dualism
University of Frankfurt (Main)
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kant, basic, structure, institutions, coercion, moral, dualism
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Maximilian Strietholt (Author), 2021, Kant and the Basic Structure, Munich, GRIN Verlag, https://www.grin.com/document/1187510


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