In recent years, there has been tremendous growth in the number of Bioethics Committees in acute and long term health care facilities. Since these committees are interdisciplinary, their membership is open to lawyers, nurses, social workers, doctors, clergy, and laymen, and others who are not trained in moral philosophy. There is a danger in this. Some of the literature on bioethics which is used to train people to serve on Bioethics Committees blurs or minimizes the distinction between deontological and utilitarian normative theories because both theories (especially the rule varieties of each) often imply the same moral decision. One example of this minimization of the distinction between deontological and utilitarian theories is Rawls. He is often listed as an example of a deontological theory, but I hope to show that he is closer to utilitarianism. ~ An Excerpt

Introduction

Historic continuity, religious belief, and legal argument could all be pleaded in its [the social contract’s] favor; and if it were judged by its fruits, on a pragmatic test of truth, it could bring to the bar of judgment a record of rich achievement. ~ Sir Ernest Barker¹

Few would doubt the importance of Harvard philosopher John Rawls in contemporary legal, ethical, and social theory. James K. Feibleman, after eight pages of criticism of A Theory Of Justice, concludes his review with this statement: “He has revived controversy in a field which has for years been neglected, and for having done so he has put us all in his debt.”² Rawls is important for a number of reasons. He has revived social contract theory. He claims to have provided a significant ethical alternative to utilitarianism. He has made the substantive observation that justice and fairness are distinct and yet related.

There is, however, another alleged importance of Rawls’ thought that is the specific focus of this article. It has to do with the relationship between Rawls and Immanuel Kant’s ethical theory. Briefly put, Rawls believes his A Theory Of Justice is capable of a Kantian interpretation in such a way that his theory makes clear some obscure elements in Kant by giving critical elements of Kant’s moral theory a procedural interpretation. The purpose of this article is to examine this claim. To do this, I will cover the following areas. First, some main elements of Kant’s moral theory will be surveyed. Second, I will state what I understand to be Rawls’ use of Kant, i.e., his Kantian interpretation. Third, I will evaluate and criticize Rawls’ Kantian interpretation.

But apart from a pure interest in scholarship, why should Evangelicals care whether or not Rawls was Kantian? In recent years, there has been tremendous growth in the number of Bioethics Committees in acute and long term health care facilities. Since these committees are interdisciplinary, their membership is open to lawyers, nurses, social workers, doctors, clergy, and laymen, and others who are not trained in moral philosophy. There is a danger in this. Some of the literature on bioethics which is used to train people to serve on Bioethics Committees blurs or minimizes the distinction between deontological and utilitarian normative theories because both theories (especially the rule varieties of each) often imply the same moral decision. One example of this minimization of the distinction between deontological and utilitarian theories is Rawls. He is often listed as an example of a deontological theory, but I hope to show that he is closer to utilitarianism.

Evangelicals should seize the opportunity to be involved in Bioethics Committees, but they must do so in an informed way. Even if utilitarianism or a deontological approach implies the same decision in a majority of cases — an assumption that is itself questionable – these theories still represent radically different pictures of morality and persons. By focusing on Rawls, these differences will become clear. Those of us who engage in moral discussion and decision making cannot allow ourselves to focus so strongly on what to do in a given case, that we allow broad conceptions of the moral life and persons to slip into the background.

Kant’s Ethical Theory

THE BACKGROUND OF KANT’S GENERAL EPISTEMOLOGY³

It is important to see Kant’s ethical theory against the backdrop of the issues he deals with in the Critique of Pure Reason. As we will see later, this is not simply a matter of historical interest. Instead, it will provide a context within which we can understand what Kant was attempting to do in his ethical theory. In so doing it will provide important evidence for evaluating Rawls’ Kantian interpretation.

A good way to look at Kant is to see his thought as a synthesis of rationalism and empiricism which incorporates important elements of each while giving rise to something genuinely new. Kant agreed with Hume that the senses were involved in knowing. Specifically, he thought that the senses gave the content of knowledge. On the other hand, he agreed with the rationalists by assuming we have knowledge of the external world. Kant’s goal was to formulate a model that can justify knowledge in light of Hume’s skepticism. Kant held that Hume’s skepticism was a logical consequence of Descartes’ subjective turn. According the Descartes, our own ideas stand between use and the world and are the immediate objects of our acts of perception. This leads to skepticism, however, because if one accepts the picture of subject-idea-object, then our knowledge of the extra-mental world becomes problematic. One cannot get outside one’s own ideas to check their correspondence with mind-independent objects. This is sometimes called the Egocentric predicament.

Kant attempted a complete criticism of reason itself to see what sort of knowledge it can attain and how. Kant asks four questions: (1) How is pure mathematics possible? (2) How is pure natural science possible? (3) How is metaphysics possible in general, as a natural disposition? (4) How is metaphysics possible as a science? (These questions for Kant are equivalent to asking, “How are synthetic a priori judgments possible?” in each area. The first question is answered in the Transcendental Aesthetic, the second in the Analytic, and three and four in the Dialectic.)

The notion of the synthetic a priori judgment is crucial for Kant. A synthetic a priori judgment is characterized by the following criteria: (1) it is necessary (2) it has strict universality (3) it is ampliative (informative; the predicate adds to the subject and is not simply the result of unpacking the meaning of the subject.) Examples of synthetic a priori judgments are (#1) 7+5=12, (#2) the shortest distance between two points is a straight line, (#3) every event must have a cause.

Kant tried to justify the notion of synthetic a priori judgments and he developed a picture of mental activity that generates them. Briefly, he took sensation and discarded all the unnecessary elements (content) until he arrived at space and time. These are the universal and necessary conditions for the possibility of sensation. Next, he developed the categories as the universal and necessary conditions for the understanding (thinking is rule governed activity and the categories are rules for rules, i.e., they explain how we can have rules that subsume representations.)

In summary, then, Kant started with the facts of knowledge, which to him implied the fact of synthetic a priori judgments. He then tried to explain how such judgments are possible in different areas and he generated a mind model to account for them. He thus attempted to satisfy the rationalist demand for certainty by explaining the universal and necessary elements in terms of the mind’s active contribution to knowledge. He satisfied the empiricists by saying that knowledge arises from sense data and cannot go beyond its bounds.

KANT’S ETHICAL THEORY

When we turn to ethics, we find Kant’s aim similar to his goal in epistemology. He tried to develop a systematic construction of morality in terms of its a priori elements. This would provide synthetic a priori truths of practical reason. To achieve this Kant sought principles of morality that are substantive and unconditioned.

It is here, however, that Kant shunned the line of reasoning that he employed in his treatment of theoretical reason.⁴ Since the “objects” of practical reason are the ends or goals at which we aim in our action, Kant could have developed a theory of the conditionally a priori principles of practical reason where the a priori validity of the principles was conditioned by their limitation to the possible ends or desires of human agents. This would have been analogous to his treatment of pure reason whose range of operation was conditioned, i.e., limited within the bounds of sense. For Kant, the subject of knowledge is the transcendental unity of apperception which are those features humans have in common qua human knowers. This implies human knowledge is conditioned. But an analogous ethical theory that was conditioned would not be an adequate ethical theory to Kant. This is true even if the conditioning factors were the most general features of human nature.

Kant states the following:

Is it not of the utmost necessity to construct a pure moral philosophy which is completely freed from everything that may be only empirical and thus belong to anthropology? That there must be such a philosophy is self-evident from the common idea of duty and moral laws. Everyone must admit that a law, if it is to hold morally, i.e., as a ground of obligation, must imply absolute necessity; he must admit that the command, “Then shalt not lie,” does not apply to men only, as if other rational beings had no need to observe it. The same is true for all other moral laws properly so called. He must concede that the ground of obligation here must not be son ght in the nature of man or in the circumstances in which he is placed, but sought a priori solely in the concepts of pure reason, and that every other precept which is in certain respects universal, so far as it leans in the least on empirical grounds (perhaps only in regard to the motive involved), may be called a practical rule but never a moral law.⁵

So for Kant, an ethical theory that is contingent even upon human nature is not adequate. This is true for a number of reasons, but one is particularly crucial. Kant thought ethics involved prescriptive imperatives (ought), not descriptive indicatives (is). And “ought” implies “can.” But human nature is phenomenal and, hence, determined by the natural causation of inclination and desire. So moral laws must come from the noumenal self, i.e., practical reason. Moral behavior is willing in accordance with a rule provided by reason.

The following elements help to unfold how Kant developed his ethical theory.

CATEGORICAL IMPERATIVE⁶

For Kant, ethics has neither an empirical nor a hypothetical base. It is not empirically based, because experience reveals only what is but not what ought to be. If there is to be a norm for life, then it must be an imperative outside of the merely declarative state of affairs in which men find themselves. Neither is it based on hypothetical or conditional grounds. Kant says, “When one’s own happiness is made the determining ground of the will, the result is the direct opposite of the principle of morality.”⁷ Even if we suppose all rational creatures to be in agreement about what brought them pleasure or pain, this would not be enough. “For the unanimity itself would be merely contingent. The determining ground would not have the necessity which is conceived in every law, an objective necessity arising from a prior grounds ….”⁸ For Kant, the only valid ground is a categorical one — duty for duty’s sake. The moral law commands us to do what is right out of pure respect for the moral law.

Kant states his categorical imperative in a number of different ways, but two of them are as follows:⁹ “Act only according to that maxim by which you can at the same time will that it should be a universal law.” He also says, “Act so that you treat humanity, whether in your person or in that of another, always as an end and never as a means only.” We will elaborate Kant’s notions of autonomy, rationality, and the kingdom of ends. Suffice it to note here that the categorical imperative expresses the -formal constraints of universality and generality and Rawls believes he has captured these in his concept of the original position (OP).¹⁰

AUTONOMY¹¹

In Kant’s discussion of the categorical imperative he distinguishes between autonomy and heteronomy.¹² This distinction turns on the diverse nature of two kinds of motives that can lead men to act. When a man chooses to act out of a sense of desire or inclination, his will is heteronomous. We act autonomously when pure practical reason determines our action. In acting autonomously, one acts out of pure respect for the moral law and this gives expression to his ability to be self-legislating. That is, the choice is made freely by a noumenal self as an expression of pure practical reason. The action is not determined or motivated by desire. To act on any other basis, especially on the basis of inclination, is not to act morally. Says Kant, “This might be his own interest or that of another, but in either case the imperative always had to be conditional and could not at all serve as a moral command.”¹³

Kant thought the notion of autonomy was implicit in the notion of universality. For in enjoining that we act only on a maxim through which we can at the same time will that it become a universal law, we have already implied that a rational will is its own law-maker; that is, self-legislating or autonomous.

RATIONALITY¹⁴

Kant distinguished two roles of reason in the realm of practical affairs.¹⁵ On the one hand, it can be used instrumentally for attaining happiness, planning life activities, and guiding us to a maximum of enjoyment and satisfaction. Kant went on to say that this is not the proper role of reason. Nature would have done better if instinct were the guiding factor for this kind of activity. Indeed, when reason attempts to serve as the vehicle for attaining happiness, a man falls far short of contentment.

This led Kant to postulate that nature has given us reason to serve a second, higher function:

But reason is given to us as a practical faculty, i.e., one which is meant to have an influence on the will. As nature has elsewhere distributed capacities suitable to the functions they are to perform, reason’s proper function must be to produce a will good in itself and not one good mere’ as a means; for to the former reason is absolutely essential.¹⁶

To summarize, reason, for Kant, is not functioning as moral faculty if it is being used as an instrument for desire or happiness. The proper moral use of reason is the production of a will good in itself; “We have, then, to develop the concept of a will which is to be esteemed as good of itself without regard to anything else.”¹⁷

KINGDOM OF ENDS¹⁸

Kant’s notion of people as a kingdom of ends is just another way to put what has already been said. In fact, it is expressed in one of his statements of the categorical imperative: “So act as to treat humanity, both in your own person and in the person of every other, always at the same time as an end, never simply as a means.”

Let me quote Kant at length here:

Now, I say, man and, in general, every rational being exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. In all his actions, whether they are directed to himself or to other rational beings, he must always be regarded at the same time as an end. All objects of inclinations have only a conditional worth, for if the inclinations and needs founded on them did not exist, their object would be without worth. The inclinations themselves as the sources of needs, however, are so lacking in absolute worth that the universal wish of every rational being must be indeed to free himself completely from them. Therefore, the worth of any objects to be obtained by our actions is at all times conditional. Beings whose existence does not depend on our will but on nature, if they are not rational beings, have only a relative worth as means and are therefore called ‘things’; on the other hand, rational beings are designated ‘persons’ because their nature indicates that they are ends in themselves, i.e., things which may not be used merely as means.¹⁹

People, then, have intrinsic dignity as moral persons and should be respected accordingly. They should not be viewed on a merely instrumental level.

These are the major features of Kant’s ethical theory. Let us now turn to Rawls’ use of Kant.

RAWLS’ USE OF KANT

Rawls has maintained for sometime that his treatment of justice as fairness is capable of a Kantian interpretation. 20 In order to unfold what he means by this, I will first offer a brief sketch of what Rawls is trying to do and then show how Kant fits in to his scheme of things.

An Overview of the Main Features of Justice as Fairness

The principles of justice that should govern society in an ideal society can be discovered by postulating an “Original Position” (OP) in which individuals get together and reach unanimous agreement to accept a set of rules to regulate their society. The logic of Rawls’ argument is this: given the characteristics of the individuals in the OP and the conditions under which they must make their decisions, any principles chosen will be fair and, therefore, just.

Rawls states this clearly in his 1980 Dewey Lectures. Here, he points out that A Theory of Justice is an attempt to capture the essential aspects of two important model concepts that underlie notions of justice in Western democracies in modern times: that of a well-ordered society and that of a moral person. The OP is a third model concept that mediates these two:

Its role is to establish the connection between the model. conception of a moral person and the principles of justice that characterize the relations of citizens in the model-conception of a well-ordered society. It serves this role by modeling the way in which the citizens in a well-ordered society, viewed as moral persons, would ideally select first principles of justice for their society. The constraints imposed on the parties in the original position, and the manner in which the parties are described, are to represent the freedom and equality of moral persons as understood in such a society.²¹

This leads us to Rawls’ use of Kant.

RAWLS AND KANT

The amoral phase of Rawis’ argument is set up in such a way that it is to be entirely deductive. The conclusions are to follow necessarily given the description of the OP. Furthermore, in this phase of the argument, there is supposed to be nothing “ethical” so that acceptance or rejection of the OP is independent of moral considerations.

But if this is so, why should we consider the two principles of justice derived from the OP to be just? The answer is that the OP models “pure procedural justice” in such a way that if the OP is deemed a fair situation, then fairness will be transferred to the principles of justice. Critical to his theory, then, is the notion that the OP models what one would consider to be fair from an ethical point of view. And this is where Kant comes in.

Rawls believes the OP sufficiently models important features of Kant’s ethical theory. This can be spelled out clearly by turning to A Theory of Justice, Section 40.

The OP models several important Kantian notions. First, it models Kantian autonomy. Rawls believes Kant’s central notion is autonomy, not generality or universality (251). For Kant, when one acts autonomously, he chooses principles that are the object of rational choice (251). The OP choosers model moral legislation under conditions that characterize them as free and equal rational beings. Kant also holds that one acts autonomously when “the principles of his action are chosen by him as the most adequate possible expression of his nature as a free and equal rational being” (252).

The principles he adopts are not based upon social or natural contingencies or in view of the particular kind of society in which he lives. The OP models this in that the “veil of ignorance” insures autonomous choice by depriving OP choosers of the knowledge they would need to choose heteronomously (252). Finally, the motivational assumption of mutual disinterest on the part of OP choosers accords with Kant’s notion of autonomy. It allows freedom. There are no prior constraints on conceptions of the good and the principles of justice will, therefore, cover all persons with rational plans of life (253-254).

Similarly, the OP models rationality as well. By acting from the principles of their choice, the OP choosers express their nature as free and equal rational beings subject to the general conditions of human life (252-253). Their choice is based on the desire for certain primary goods. These are the things it is rational to want, whatever else one wants. “Thus given human nature, wanting them is part of being rational; and while each is presumed to have some conception of the good, nothing is known about his final ends. The preference for primary goods is derived, then, from only the most general assumptions about rationality and the conditions of human life” (253). In short, the OP choosers are noumenal selves (257).

The OP also models legislation for a kingdom of ends. The principles must be acceptable to all and public (252). “The original position may be viewed, then, as a procedural interpretation of Kant’s conception of autonomy and the categorical imperative. The principles regulative of the kingdom of ends are those that would be chosen in this position . . . “(256). That is, the principles of justice treat humanity as ends, possessing dignity. In the OP, “Men have equal representation as moral persons who regard themselves as ends and the principles they accept will be rationally designed to protect the claims of their person” (180).

Finally, Rawls says his principles of justice are categorical imperatives.

The principles of justice are categorical imperatives in Kant’s sense. For by a categorical imperative Kent understands a principle of conduct that applies to a person in virtue of his nature as a free and equal rational being. The validity of the principle does not presuppose that one has a particular desire or aim. Whereas a hypothetical imperative does assume this: it directs us to take certain steps as effective means to achieve a specific end …. The argument for the two principles of justice does not assume that the parties have particular ends, but only that they desire certain primary goods…. To act from the principles of justice is to act from categorical imperatives in sense that they apply to use whatever in particular our aims are (253).

Before we evaluate Rawls’ use of Kant, there are three further things that should be mentioned.

First, Rawls’ Kantian interpretation is meant to apply primarily within the OP and not, as Darwall says,²² to the decisions we make in real life. Rawls defends the Kantian interpretation on the grounds that the decision in the original position is autonomous. The “original position is an attempt to interpret Kant” (italics mine) (252). It is the motivational assumption within the OP that models Kantian autonomy (253). We are to view the OP “as the point of view from which noumenal selves see the world” (italics mine) (255). “The original position may be viewed, then, as a procedural interpretation of Kant’s conception of autonomy and the categorical imperative. The principles regulative of the kingdom of ends are those that would be chosen in this position… (italics mine) (256). Indeed, Rawls even implies that, outside the OP, when we act on his principles of justice, we are acting on principles we would choose in the OP. His point is simply that what makes the principles categorical imperatives is that they are chosen by noumenal selves appropriately characterized in the OP. His entire argument requires this because he wants to show that the OP is fair (and therefore just). To do this, he tries to capture important Kantian notions within the OP.

Second, Rawls does not believe his views are identical, but rather, similar to Kant’s. This can be seen in a number of ways. First, it can be seen by the words Rawis uses to describe his connection to Kant: it “accords” with Kant (253), it is “fairly close” (252), it “connects up” with Kant (254), etc. Second, Rawls admits that he adds in various ways to Kant23 (the principles apply to the basic structure of society, etc.) (252). Third, he limits rationality as follows, “By definition rationality is taking effective means to achieve one’s ends” (401). “Moreover, the concept of rationality must be interpreted as far as possible in the narrow sense, standard in economic theory, of taking the most effective means to given ends” (14). This means that his theory does not apply to all rational beings qua rational. It only applies to humans within the circumstances of justice. He admits this may differ with Kant, too (257). Fourth, Rawls thinks he has cleared up and given explicit expression to how substantive moral. principles can be derived from the formal notion of autonomous, noumenal selves acting in accordance with categorical imperatives (254-55).²⁴

Third, Rawls’ use of Kant has three important features. For one thing, as I have already said, Rawls believes he has captured important Kantian notions in both his derivation and content of his principles. Further, he identifies with Kant in his polemic against utilitarianism. These two points are distinguishable, but they are also closely related. The success of one will aid the success of the other.²⁵ Finally, he believes that he is aligned with Kant against rational intuitionism by giving the prominent place in ethics to the moral agent and not to first principles externally and antecedently fixed.²⁶ I take this as an implicit rejection of a duty-based deep theory in favor of a right-based deep theory.²⁷

In summary, let us again quote Rawls:

Justice as fairness is not, plainly. Kant’s view, strictly speaking; it departs from his text at many points. But the adjective ‘Kantian’ expresses analogy and not identity; it means roughly that a doctrine sufficiently resembles Kant’s in enough fundamental respects so that it is far closer to his view than to other traditional moral conceptions that are appropriate to use as bench-marks of comparison.²⁸

Evaluation and Criticism

Several critics have pointed out that Rawls fails to represent man as a moral being in a Kantian sense.²⁹ Oliver Johnson’s comment is representative: “For the conception that he [Rawls] has of a man’s nature as a moral being is basically opposed to, rather than consonant with, that held by Kant.”³⁰ I agree with this criticism.

First, OP choosers do not choose autonomously but heteronomously. It seems as though Rawls interprets Kant anthropomorphically instead of nonanthropomorphically.³¹ The result is that Rawls seems to confuse general heteronomy with autonomy. The veil of ignorance does not leave us Kantian noumenal selves. Our choices are still based on desire and inclinations even though they are general in nature. For Kant, the key distinction between heteronomy and autonomy is not the circumstances of choice, but the motive. A choice is autonomous if it is done out of respect for the moral law, not if it is done to maximize primary goods.³²

Darwall has objected to this line of argument.³³ His basic point is to give the Kantian connection an interpretation outside the OP. That is, even if the OP choosers are heteronomous, when we choose to act on Rawls’ principle of justice in the real world, out choices can be autonomous. But this does not seem to be the best reading of Rawls.³⁴ His Kantian interpretation is within the OP. Furthermore, this would seem to limit the value of Rawls’ social contract justification for the principles of justice. If people choose them autonomously without regard to the OP, this is straight forward. But if the OP justified the principles for actual choosers, there is still a problem. If these real life people value autonomous choice, i.e., if the are Kantian, then the heteronomy within the OP would be counterproductive in justifying the principles of justice. Such people could choose them autonomously, but they would do so in spite of the model. Non-Kantians could choose the principles autonomously and be partly persuaded by the OP. But this option is limited in that it fails to win Kantians and it is not consonant with Rawls’ use of the Kantian interpretation.

Another objection has been offered by Bernard H. Baumrin. Baumrin states:

It seems to me that the autonomy/hetoronomy distinction in Kantian moral theory amounts to something like the following: if one acts pursuant to rules, so that one’s behavior is in accordance to law, then if these rules are self-legislated one is autonomous, and if not self-legislated, then one is heteronomous.³⁵

Oliver Johnson has answered this charge with a counter example.

Suppose an individual adopted the following rule of action for himself: act always in such a way as to keep your reputation. In fulfillment of this rule he always tells the truth and never lies. According to Baumrin’s interpretation of Kant’s notion of autonomy, the individual in question would be acting autonomously, for his action would be pursuant to a rule, hence in accordance with law, and his rub would be self-legislated. He would be fully responsible for his acts, for they would be done in fulfillment of a self-imposed rule. Yet, if we look at Kant, we find him using the same illustration as I have – but as a case of hetoronomous action.³⁶

Baumrin himself admits the force of this answer: “…, I must say that Professor Johnson has shown me that he is right.”³⁷

I conclude, then, that the OP choosers are not Kantian noumenal selves choosing autonomously. A similar charge can be leveled against Rawls’ notion of rationality, categorical imperative, and kingdom of ends. I will not go into detail on these points; rather, I will summarize the main issues relevant to each notion.

Rawls’ notion of rationality seems to imply at least three things.³⁸ First, to make a rational choice, one must choose whatever will best further his own ends, with the ends of anyone else irrelevant to the decision. Second, in choosing the principles of justice, reason functions as an instrument of desire. Third, it does not seem that Rawls has made provision for reason to function in moral decision beyond these. These features of rationality do not correspond to Kant’s notion of rationality. For Kant, rational choice is one out of respect for the moral law as such. And reason is not an appropriate guide to happiness. Kant’s notion of rationality in moral decision-making involves acting from a sense of duty, not in accordance with duty for self interest.³⁹

Similarly, what would be categorical imperative for Rawis would be a hypothetical imperative for Kant. This is because the principles do not flow from a truly noumenal self, but rather from one determined by desire. Finally, people are not really ends but means. Rawis contends that in the OP, persons have equal representation as ends, so the principles they adopt will be “rationally designed to protect the claims of their person” (180). But for Kant, “the claims of their person” are conceived apart from any empirically given set of desires, no matter how general they are. Thus in the OP, we actually treat other persons as means for satisfying empirically given desires (primary goods).⁴⁰ When we act from these principles we express our nature as human beings in Rawls’ sense, but not as reasonable beings in Kant’s. We express our nature as bundles of appetites for primary goods endowed with a capacity for instrumental rationality; not as bearers of pure practical reason.

But isn’t all this beside the point? After all, Rawls himself said he did not mean for his theory to be exactly like Kant’s. His theory is not to hold for every possible world and, in fact, it is limited to modem western democracy. All he is trying to do is capture intuitions that are sufficiently Kantian within the circumstances of justice. Rawls is addressing a narrow problem, not developing a full blown ethical theory.⁴¹ As he says elsewhere: “But the adjective ‘Kantian’ expresses analogy and not identity; it means roughly that a doctrine sufficiently resembles Kant’s in enough fundamental respects so that it is far closer to his view than to other traditional moral conceptions that are appropriate for use as benchmarks of comparison.”⁴²

The key words here are “sufficiently resembles” and “appropriate”. It is difficult to know when something is “analogous enough.” But one thing is certain. The further Rawls’ OP is from Kant, the less clear it is that he is sufficiently Kantian. Put another way, the stronger one thinks the above
criticisms are, the less likely he will be to think Rawls has accomplished his purpose of giving a procedural interpretation to Kantian moral notions. In addition to this, there are several problems with Rawls’ theory that would not be as acute if he was consistent to Kant. And since these problems have kept various critics from accepting his model, it may well be that he is not sufficiently Kantian. Here are some of these problems.

First, the OP choosers do not create a situation with real community.⁴³ Rawls’ contractarian analysis of social values is individualistic in its base. Necessary to this is having people established as kingdoms of ends. But as I have already mentioned, I think Rawls fails here. People have strictly extrinsic relationships to one another. People are instrumental and bundles of appetites. This leads to the second point.

OP choosers appear to be rational egoists that share common ends. Rawls denies this charge:

One feature of justice as fairness is to think of the parties in the initial situation as rational and mutually disinterested. This does not mean that the parties are egoists, that is, as individuals with only certain kinds of interest, say in wealth, prestige, and dominion. But they are conceived as not taking an interest in one another’s interests(13).

Limiting the scope of egoism does not change the fact that it is still egoism. The problem this leads to is this: Why should I accept principles of
justice that were chosen by rational egoists? This objection may not be decisive but it does have some weight. And if Rawls had been Kantian here the objection would not have come up. We could accept their decision because they actually represented us as noumenal selves respecting the moral law. As Mason points out, the egoistic desire for primary goods is the thing Rawls needs to motivate a choice in the OP. And yet, it is the very thing that obstructs a Kantian interpretation.⁴⁴ An OP chooser will deliberate with an eye on his own prospects of winning.

Third, because Rawls characterizes the OP choosers as rationally self-interested, he has a problem with risk that would not arise on a Kantian model.⁴⁵ Their basic question is not, “Which set of rules would be just?” Rather they ask, “Which principles would protect my interest wherever I am found?” This question opens up the possibility of risk. A rational person in the OP might be willing to risk fundamental liberties for the possibility of some greater advantage. Rawls has attempted various solutions to the problem of risk, but his basic answer is that given the veil of ignorance, risk in unlikely. My point is not to question whether Rawls has been able to clear up the problem. My point is that the problem arose in the first place. As Mason says:

The natural objection would not arise if the persons in the original position were autonomous and not self interested persons. The difficulties over the natural objection thus suggest that the apparent inconsistency between Rawls’ underlying Kantianism and the balance of his theory should he resolved by dropping the notion that the rational persons in the original position are self-interested. Suppose instead, it may be suggested, that they are autonomous selves seeking to express their nature, and that the original position is what Rawls say it is: the point of view from which noumenal selves see the world.⁴⁶

Fourth, Rawls’ OP is closer to utilitarianism than it would be if he were clearly Kantian. Bloom puts it this way: “To repeat, Rawls’ teaching is only utilitarianism made contemporary, … Rawls’ teaching is almost entirely of that tradition.
There is no halfway house between Hobbes and Kant.”⁴⁷ The point is that OP choosers are merely expressing natural inclination and people are a means of maximizing primary goods which exemplify those inclinations. It may be objected that the veil of ignorance and unanimous choice do protect the person from being used to maximize utility simpliciter. There are at least two responses to this objection. First, their motivation is still to maximize utility defined as primary goods. Second, contemporary utilitarianism usually has an additional clause that is designated to protect the person.⁴⁸ So, while I would identify Rawls as a utilitarian, even if I am wrong, he is still closer to utilitarianism than he is to Kant.

Fifth, it would seem that Rawls embodies a right-based deep theory whereas Kant would represent a duty-based deep theory.⁴⁹ Surely, the two theories are correlative in many cases. But often, one is derivative from the other and it makes a difference which is derivative of which. Social contact theory in general, and the OP in “, models a right-based deep theory. Kant’s duty-based theory places duty at the center. Rawis and right-based theories treat codes as instrumental. This may not be a problem in itself. But those who hold to a duty-based ethical theory are not likely to accept Rawls’ justification of justice, whereas they would if he was closer to Kant.⁵⁰

Summary and Conclusion

It appears to me that Rawls’ Kantian interpretation fails to capture accurately the crucial Kantian concepts of autonomy, the categorical imperative, rationality, and the kingdom of ends. Rawls, himself, admits as much. He is arguing the lesser claim that he is “sufficiently” Kantian. Whether he succeeds in this endeavor is hard to say. At the very least, there are problems with this claim, and it may be that since Kantian notions like autonomy do not admit of degree (all action is either autonomous or it is not), then Rawls would be better off to drop the Kantian connection altogether. After all, those who are Kantian in their ethical theories will probably not be persuaded by Rawls’ inaccurate representation of Kant. And those who aren’t Kantian will judge his system by its intrinsic merits, not by its connection to Kant.

In any case, it should be clear that anyone who lists Rawls as an example of a deontological theory without a great deal of qualification is being overly simplistic. For example, in one of the most widely used textbooks on bioethics, Georgetown University ethicists Tom L. Beauchamp and LeRoy Walters make this claim: “In recent years a book in the Kantian tradition has had great currency in deontological ethics. John Rawls’ A Theory of Justice (1971) presents a deontological theory as a direct challenge to utilitarianism on grounds of social justice.”⁵¹

Elsewhere, Beauchamp and James F. Childress write: “Whether one takes the utilitarian or deontological standpoint no doubt makes a great deal of difference at many points in the moral life and in moral reflection and justification. Nevertheless, the differences can easily be overemphasized. “⁵² From these statements, it would seem that Rawls is listed as a deontologist, in part, because the differences between utilitarianism and deontological theories should not be “overemphasized.” But our investigation of Rawls has shown that he is not an example of a deontological theory. And we have seen that, although they may imply the same moral choices on occasion, utilitarianism and deontological normative theories have radically difference conceptions of morality, persons, and the reasons relevant to moral justification.

Endnotes

1. Ernest Barker, Social Contract: Essays by Locke, Hume and Rousseau (Oxford: Oxford University Press, 1962), p. vii.
2. James K. Feibleman, review of A Theory of Justice, by John Rawis in American Journal of Jurisprudence 18 (1973): 198-205.
3. For a helpful survey, see Justus Hartnack, Kant’s Theory of Knowledge (New York: Harcourt, Brace & World, 1967).
4. Robert Paul Wolff, Understanding Rawls (Princeton: Princeton
   University Press, 1977), pp. 107-11.
5. Immanuel Kant, Foundations of the Metaphysics of Morals, trans., with an
   introduction by Lewis White Beck (Indianapolis: Bobbs-Merrill Company, Inc., 1959), p. 5.
6. For a good discussion,
   cf. Norman Geisler. Ethics: Issues and Alternatives (Grand Rapids:
   Zondervan, 1971), pp. 84-89; William K. Frankena, Ethics (Englewood Cliffs, N.J.: Prentice-Hall, 1963), pp. 30-33.
7. lmmanuel Kant, Critique of Practical Reason, trans. by Lewis
   W. Beck (New York: Bobbs-Merrill Company, Inc., 1956), p. 36.
8. Kant, Critique of Practical Reason, pp. 24-25.
9. Cf. Geisler, pp. 85-86.
10. John Rawls, A Theory of Justice (Cambridge: Harvard
    University Press, 1971), pp. 130-36. All further references to this
    work will be bracketed in the text.
11. Cf. Oliver Johnson. “Heteronomy and Autonomy — Rawis and Kant,” in Midwest Studies in Philosophy, 2 (1977), pp. 277-79.
12. Cf. Andrew Levine, “Rawls’ Kantianism,” in Social Theory and
    Practice 3 (Spring 1974): 47-63; Oliver Johnson, “The Kantian Interpretation, Ethics 85 (1974): 58-66.
13. Kant, Foundations, pp. 9-13.
14. Johnson, “The Kantian Interpretation,” pp. 63-66; H. E.
    Mason, “On the Kantian Interpretation of Rawlss Theory,” Midwest
    Studies in
    Philosophy I (1976), pp. 47-49; Allan Bloom, “Justice: John Rawls vs.
    Political Philosophy,” American Political Science Review (June, 1975): 656-57; Stephen Darwell.’ A Defense of the Kantian
    Interpretation,” Ethics 86 (No. 2, 1976): 168-70.
15. Kant,
    Foundations, pp. 9-13.
16. Ibid., p. 12.
17. Ibid., p. 13, italics mine.
18. Cf. Levine, pp. 55-57; Darwall, p. 167.
19. Kant, Foundations, p. 46.
20. Cf. John Rawls, “The Sense of Justice,” Philosophical Review 72
    (July, 1963): 303-05; John Rawis, “Kantian Constructivisim in Moral
    Theory: The Dewey Lectures 1980,” Journal of Philosophy
    (September, 1980).
21. Rawls, “Kantian Constructivism,” p. 520.
22. Cf. Darwall, 164-70.
23. Rawls, “Kantian Constructivism,” pp. 552-54.
24. Ibid., p. 560.
25. Levine, p. 47; David Braybrooke, “Utilitarianism with a
    Difference: Rawls’ Position in Ethics,” Canadian Journal of Philosophy
    (December, 1973): 303-31.
26. Rawis, “Kantian Constructivism,” p. 560.
27. Ronald Dworkin, “The Original Position,” Reading Rawls (New
    York: Basic Books, n.d.), pp. 40-46.
28. Rawls, “Kantian Constructivism,”
    p. 517.
29. Bloom, pp. 656-57; Levine, pp. 47-63; Mason, pp. 47-55; Wolff,
    pp. 112-16; Oliver Johnson, “Autonomy in Rawis and Kant: A Reply,”
    Ethics 87 (No. 3, 1977): 251-54.
30. Johnson, “The Kantian Interpretation,” p. 58.
31. Levine, p. 48.
32. Johnson
    says that Rawls’ distinction between types of imperatives more closely
    resembles Kant’s “rules of skill” and “counsels of prudence.”
33. Cf. Darwall, p. 164-70.
34. Cf. Johnson. “Autonomy in Rawls and Kant: A Reply.”
35. Bernard Baumrin, “Autonomy in Rawls and Kent,” Midwest Studies
    in Philosophy I (Minneapolis: University of Minnesota Press, 1976), pp. 55-57.
36. Johnson, “Heteronomy and Autonomy — Bawls and Kant,” p. 278.
37. Bernard Baumrin, “Autonomy, Interest, and the Kantian
    Interpretation,” Midwest Studies in Philosophy II (Minneapolis:
    University of Minnesota Press, 1977), p. 280. 1 should add that Johnson
    and Baumrin argue over the relevance of Kent’s admission that he could
    not explain (Begreiflich) how pure practical reason could be possible.
    Baumrin admits the issue remains unsettled. Cf. Johnson, “Heteronomy
    and Autonomy — Rawls and Kant,” p. 278; Baumrin, “Autonomy, Interest,
    and the Kantian Interpretation,” pp. 280-81.
38. Johnson, “The Kantian
    Interpretation,” p. 64.
39. Johnson, “Heteronomy and Autonomy — Rawls and Kant,” p. 279; Cf. Mason, pp. 47-55.
40. Levine, pp. 56-57.
41. I assume he is referring here to his short list of alternatives (124).
42. Rawls, “Kantian Constructivism,” p. 517.
43. Levine, pp. 57-59.
44. Mason, pp. 49-50.
45. Mason, pp. 48ff.
46. Mason, p. 53. Mason suggests that Rawls’ OP would have the
    force of an ad hominem
    argument. For example, “How would you like to be in the position of one
    of those small businessmen in this measure were adopted?”
47. Bloom, p. 657.
48. Cf. Braybooke.
49. Dworkin, pp. 37-46.
50. Feibleman and Bloom list several other differences between Rawls
    and Kant, but they add nothing that I consider essential to my argument.
51. Tom L. Beauchamp and LeRoy Walters, Contemporary Issues in
    Bioethics, 2nd ed. (Belmont, CA.: Wadsworth, 1982), p. 23.
52. Tom L. Beaucham and James F. Childress, Principles of Biomedical Ethics (New York: Oxford University Press. 1983). p. 41.