Shafer-Landau’s critique presented, rebutted and reframed, Weber moves to the second part of the inquiry, namely, the reprisal of his earlier criticisms of social contract theory and the philosopher’s fallacy. If Rawls’ procedures for justification can explain neither how nor why they arrive at singular, objective results, this owes in part to the strange mix of representationalist and mentalistic language framing the presentation. More specifically, Rawls opts to focus on political legitimacy as deriving from minds (mentalistic) conceived not as actual but as hypothetical (representationalist). Weber writes:
“If we imagine deliberation, the results or that process could be considered important, Rawls believes, if we just outline the right restrictions on that deliberation. If this is true, then, why do we need to consider minds in deliberation? Would not the rules of deliberation be the deciding factors of the outcome of the debate? If they are not, how can we assume that the process would result in a singular outcome? It seems that we would end up otherwise with a number of possible outcomes” (p. 97).
In a word, if the rules of deliberation point us towards a given outcome, what sense is there in including minds in the decisionmaking procedures? For minds, as situated, would introduce variance in the outcomes. Weber traces this tension to Rawls’ “Outline” wherein the author attempts to extract the relevant criteria for sound moral judgment from the correct decisions of competent moral judges. Yet, rather than study the decisionmaking procedures of actual instances of correct judgment by real judges, Rawls proposes to extract criteria from minds in general, all while leaving indeterminate the sense of “correctness” at issue. Weber elaborates of Rawls:
“The trouble is that he is not interested in actually discussing the procedures of particular judges. Rather, he hopes to imagine the good judge, to extract from that conception the principles of proper deliberation in matters of ethics and justice, and then to set those principles in stone. This is precisely the problem of he original position. The reason we do not need actual deliberations is that what is needed is the right set of limiting guidelines for ethical decision-making. The rightness or wrongness of a given decision has to do with no person, no mind. It has to do with the procedures of judgment, irrespective of judges. Thus, the ethical basis of justice for Rawls rests upon decision procedures, not persons or wills” (p. 98).
Rawls’ inability or unwillingness to make explicit just how procedures are independent from persons or minds leaves him poorly positioned to extract himself from the representationalist quagmire. So long as there exists a disconnect between concept, procedure and person, so we might imagine Weber saying, Rawls will remain unable to make sense of a position at odds with either of two camps. Certainly, the author might reply that historical develops account for favoring one set of decision procedures over another, perhaps as the best for which we can reasonable hope at the time, thereby sidestepping the need to justify the reasons privileging this set over another. Yet, so Weber would likely maintain, Rawls is unlikely, if not unable, to tether decision procedures to historical developments.
Weber further invokes the critical positions advanced by Onora O’Neill in her Constructions of Reason. Therein, O’Neill highlights Rawls’ failure to advance constructivism beyond a merely intermediate position, stranded between relativism and realism. By this last remark, she designates the reading on which Rawls either supposes proof of a moral reality which he is unable to supply or restricts himself to commentary on the concept of justice internal to liberal societies. So adrift or insulated, Rawls’ work falls prey to the philosopher’s fallacy outlined above. Put somewhat differently, Rawls hypostasizes a concept resulting from historical circumstances and finds himself unable to explain either why that moral reality is not forthcoming or why his approach necessarily limits itself to Western democratic societies. Between the two, he has sketched no stable position.