Introduction: A Theory of Justice as an Analysis of Society
One of the major weaknesses of contemporary political philosophy is that it has been decoupled from an analysis of society, instead becoming fixated on purely normative principles. Although theories of justice necessarily formulate normative rules according to which we can assess the moral legitimacy of social orders, today these principles are drawn up in isolation from the norms [ Sittlichkeit ] that prevail in given practices and institutions, and are then 'applied' secondarily to social reality. This opposition between what is and what should be, this philosophical degrading of moral facts, is the result of a theoretical development that started long ago, one that is closely linked to the fate of Hegel's Philosophy of Right . After his death, Hegel's intention to reconstruct rational institutions, i.e. institutions that guarantee freedom, on the basis of prevailing social relations came to be understood in two very different ways. On the one hand, his work was regarded as a conservative theory of restoration, and on the other hand, as a theory of revolution. This division into Right Hegelians and Left Hegelians 1 made it possible for later generations, after nearly all revolutionary ideals had died out, to shove the entirety of Hegel's political philosophy into the conservative camp. All that seemed to remain of Hegel's notion that a theory of justice must be based on social analysis was the somewhat primitive idea that given institutions must be given an aura of moral legitimacy. This nearly sealed the victory of a Kantian or Lockean theory of justice, which stipulates that the normative principles according to which we judge the moral legitimacy of social orders may not stem from within existing institutional structures, but must stand alone outside of this institutional framework. Little has changed up to the present day.
Of course, there have been numerous objections and counter-proposals to the dominance of Kantianism over the theory of justice. In the second half of the nineteenth century, British Neo-Hegelianism - which for political and cultural reasons never caught on in Germany - sought to revive certain Hegelian motifs and make them the basis for an alternative theory of justice. 2 And more recently, the works of Michael Walzer, David Miller and Alasdair MacIntyre have proven that efforts to overcome purely normative theories of justice and revive the project of social analysis have never really slackened. 3 But these same endeavours also show just how far we have strayed from the path Hegel laid down in his Philosophy of Right . Current attempts to overcome the deficits of Kantian theories of justice that ignore existing institutions nearly always attempt to hermeneutically adapt normative principles to existing institutional structures or prevailing moral beliefs, without proving whether the substance of these institutions is itself rational or justified. And yet these attempts remain unconvincing because of their tendency to accommodate normative principles to official theories not supported by social reality. Hegel, by contrast, sought to unify these two approaches in his Philosophy of Right 4 by demonstrating the largely rational character of the institutional reality of his time, while conversely showing moral rationality to have already been realized in core modern institutions. He gave the name 'Right' to those elements of social reality that, by virtue of enabling and realizing individual freedom, possessed both substance and legitimacy. 5
In reviving Hegel's project nearly two hundred years later, I realize of course that both social relations and styles of philosophical argumentation have undergone significant changes. We can no longer merely rehash the intention and argumentation of his Philosophy of Right , and