Enrico Zoffoli

Kantian Constructivism and Priority Rules

Rawls’s arguments for the “lexical priority” of liberties stress the illegitimacy of sacrificing any individual’s basic liberties for collective gains. Many critics have attacked this “absolute weight” of liberties, which they regard as a “dogmatic” bias in favor of a liberalist conception (Hart 1975). This paper, however, does not aim to criticize the “distinctively liberalist direction” established by the “lexical priority” of liberties (Davenport 1996). Rather it seeks to show that the very notion of “priority rule” is logically problematic from the perspective of Kantian constructivism. My argument is that, within the logic of Kantian constructivism, any attempt to deal with conflicts among principles of justice by means of “priority rules” ends up in an infinite regress. This paper is organized as follows. In the first section (1) I shall briefly introduce Rawls’s notion of “lexical priority”. In the second section (2) I shall lay out a set of necessary conditions for the justification of any criteria of justice. These conditions, I shall argue, follow necessarily from the basic procedure of justification that lies at the heart of Kantian constructivism. Finally (3), I shall argue that if the requirements discussed in the second section are met, then the employment of “priority rules” is threatened by infinite regress.