Rawls is a proponent of practical philosophy and someone to whom moral questions are ‘serious objects of philosophical investigation’ (109). Against value scepticism and utilitarianism, Rawls follows Kant’s maxim that we ought to do what is good for all people and he extends this to formulate his vision of a just society. A just society is one in which every citizen is treated equally and freely. Kant’s principle of autonomy is made intersubjective, for ‘we act autonomously when we obey those laws which could be accepted by all concerned on the basis of a public use of their reason’ (109). Thus Rawls also refutes contextualist positions, which question the presupposition that reason is a common characteristic shared by all humans.
Rawls’s position aims at the justification of the principles upon which modern society should be constituted ‘if it is to ensure the fair co-operation of its citizens as free and equal persons’ (110). The position has three steps. The first is to identify a standpoint from which representatives of the people could answer questions impartially. Parties in the ‘original’ position agree on two principles: 1) the liberal principle that everyone is entitled to an equal system of basic liberties; 2) the principle of equal access to public offices; social inequalities are only acceptable if it is to the benefit of the underprivileged. The second step is to claim that this conception of justice will meet with agreement under the conditions of a pluralistic society which it itself promotes. The key assumption here is that political liberalism is generally neutral with regards to conflicting world-views. And thirdly, the outline of the basic rights and principles of the constitutional state are derived from these two principles of justice.
Habermas takes issue with ‘certain aspects of [the project’s] execution’, as he ‘fear[s] that Rawls makes concessions to opposed philosophical positions which impair the cogency of his own project’ (110). He does not object to the project per se but instead proceeds via an immanent and constructive critique. The key aspects of this critique are i) doubts about aspects of the original position in securing the ‘standpoint of impartial judgement about deontological principles of justice’ (110); the claim that Rawls should make a sharper distinction between principles of justification and of acceptance, for ‘he seems to want to purchase the neutrality of his conception of justice at the cost of forsaking its cognitive validity claim’ (110); and the criticism that Rawls fails in his goal of bringing the liberties of the moderns into harmony with the ancients, because the two theoretical decisions ‘result in a construction of the constitutional state that accords liberal basic rights primacy over the democratic principle of legitimation’ (110).
Design of the Original Position
The parties in the original position have a morally neutral character on the one hand, and are bound to choose principles of fair co-operation via morally substantive situational constraints on the other. Such normative constraints thereby permit the parties with a minimum of properties, in particular, “the capacity for a conception of the good (and thus to be rational)” (Rawls quoted on p. 111), or in other words, they are constrained by their own self-interest to reflect on what is equally good for all citizens. As Habermas notes, however, Rawls ‘soon realised that the reason of autonomous citizens cannot be reduced to rational choice conditioned by subjective preferences’ (112), though he maintains that the meaning of the moral point of view can be operationalised in this way. Habermas addressees three consequences of this approach:
(1) Can the parties in the original position comprehend the highest-order interests of their clients solely on the basis of rational egoism? (2) Can basic rights be assimilated to primary goods? (3) Does the veil of ignorance guarantee the impartiality of judgement? (112)
(1) Comprehension via rational egoism
Rawls cannot consistently hold this position when the parties representing citizens are denied the autonomy that the citizens fully have, because of ‘rational design’: ‘the parties are supposed both to understand and to take seriously the implications and consequences of an autonomy that they themselves are denied’ (112). They cannot take into account, for instance, the sense of loyalty and obligation citizens may feel towards each other. Rawls qualifies the rationality of the contracting partners: on the one hand, they take no interest in one another; on the other hand, they have a “purely formal” sense of justice, for they are supposed to know that they are bound to conform with the principles agreed upon in their future role as citizens in a well ordered society. Habermas questions whether this strays too far from the original position: ‘For as soon as the parties step outside the boundaries of their rational egoism and assume even a distant likeness to moral persons, the division of labour between the rationality of choice of subjects and appropriate objective constraints is destroyed, a division through which self-interested agents are nonetheless supposed to achieve morally sound decisions’ (113).
(2) Rights and Goods
Primary goods are defined as the means we need to realise our plans for life. For the parties in the original position, primary goods can be rights, but these are only recognised as one category of goods amongst others, thus ‘the issue of principles of justice can only arise in the guise of the question of the just distribution of primary goods’ (114). As such, Rawls would seem to adopt an approach that is more consistent with Aristotelian ethics or utilitarianism that his own theory of rights which is supposed to proceed via the concept of autonomy. In interpreting rights as primary goods, Rawls ‘assimilate[s] the deontological meaning of obligatory norms to the teleological meaning of preferred values’ (114).
Rawls has to compensate for the levelling of the deontological dimension; he does so by according the first principle priority over the second, and adding a further qualification that secures primary goods a relation to basic liberties as basic rights, i.e. primary goods are ‘only those which are expedient for the life plans and the development of the moral faculties of citizens as free and equal persons’ (114), but, as Habermas argues, this step distinguishes between rights and goods in contradiction to the first classification of rights as goods.
(3) Veil of Ignorance & Impartiality
There is a problem of how to go from individual isolated perspectives to a universal, transcendental consciousness. Rawls tries to neutralise different viewpoints by withholding information, thereby keeping representative parties under a veil of ignorance. Habermas argues that there is an alternative: discourse ethics, which ‘views the moral point of view as embodied in an intersubjective practice of argumentation which enjoins those involved to an idealising enlargement of their interpretive perspectives’ (117). Discourse ethics would lighten the burden of proof generated by Rawls’s position, namely a) ‘the veil of ignorance must extend to all particular viewpoints and interests that could impair an impartial judgement’ (118); and b) gradual removal of the veil might lead to discrepancies arising, so if we are to ensure that this does not happen, ‘we must construct the original position already with knowledge, and even foresight, of all the normative contents that could potentially nourish the shared self-understanding of free and equal citizens in the future. In other words, the theoretician himself would have to shoulder the burden of anticipating at least parts of the information of which he previously relieved the parties in the original position!’ (118). Instead, Habermas has in mind ‘the more open procedure of an argumentative practice that proceeds under the demanding presuppositions of the “public use of reason” and does not bracket the pluralism of convictions and worldviews from the outset’ (118-9).
 Norms inform decisions as to what one ought to do, values inform decisions as to what conduct is most desirable. Recognised norms impose equal and exceptionless obligations on their addressees, while values express the preferability of goods that are striven for by particular groups. Whereas norms are observed in the sense of a fulfillment of generalized behavioural expectations, values or goods can be realized or acquired only by purposive action. Furthermore, norms raise a binary validity claim in virtue of which they are said to be either valid or invalid: to ought statements, as to assertoric statements, we can respond only with ‘yes’ or ‘no’ – or refrain from judgement. Values, by contrast, fix relations of preference that signify that certain goods are more attractive than others: hence, we can assent to evaluative statements to a greater or lesser degree. The obligatory force of norms has the absolute meaning of an unconditional and universal duty: what one ought to do it what is equally good for all (that is, for all addressees). The attractiveness of values reflects an evaluation and a transitive ordering of goods that has become established in particular cultures or has been adopted by particular groups: important evaluative decisions or higher-order preferences express what is good for us (or for me), all things considered. Finally, different norms must not contradict each other when they claim validity for the same domain of addressees; they must stand in coherent relations to one another – in other words, they must constitute a system. Different values, by contrast, compete for priority; insofar as they meet with intersubjective recognition within a culture or group, they constitute shifting configurations fraught with tension. To sum up, norms differ from values, first, in their relation to rule-governed as opposed to purposive action; second, in a binary as opposed to a gradual coding of the respective validity claims; third, in their absolute as opposed to relative bindingness; and, last, in the criteria that systems of norms as opposed to systems of values must satisfy. [114-5]
 Discourse ethics rests on the intuition that the application of the principle of universalisation, properly understood, calls for a joint process of “ideal role taking”. It interprets this idea of G. H. Mead in terms of a pragmatic theory of argumentation. Under the pragmatic presuppositions of an inclusive and noncoercive rational discourse among free and equal participants, everyone is required to take the perspective of everyone else, and thus project herself into the understandings of self and world of all others; from this interlocking of perspectives there emerges an ideally extended we-perspective from which all can test in common whether they wish to make a controversial norm the basis of their shared practice; and this should include mutual criticism of the appropriateness of the languages in terms of which situations and needs are interpreted. In the course of successively undertaken abstractions, the core of generalisable interests can then emerge step by step. [117-8]