2. Forst’s Account: Components and Structure

To begin with, there is an ambiguity in the systematic architecture of Forst’s account of human rights. There are two distinct, albeit compatible lines of thought at the systematic core of this account. Each takes a different path to situating the idea of a right to justification at the foundation of human rights—or other, substantive moral or political principles, for that matter. To start with what these two lines of thought have in common, the following views mark key components of Forst’s ‘reason-based’ constructivism:

1. (1) Practical views must “be justified in precisely the manner referred to by their validity claims.”^{Footnote 7} (Forst refers to this as a reasonably non-rejectable ‘principle of justification.’)

2. (2) People have an unconditional duty to justify themselves to others in accordance with the principle of justification.^{Footnote 8} (This is what Forst calls the ‘duty of justification’—in his view, reasonable people recognize that they have this duty.)

3. (3) People have a right to justification: we must respect or recognize them as “worthy of being given adequate, justifying reasons in matters that affect them,”^{Footnote 9} or as agents who “can demand acceptable reasons for any action that claims to be morally justified and for any social or political structure or law that claims to be binding upon him or her.”^{Footnote 10}

A note on (3) is in order. Forst writes that to “speak of a right here—and, indeed, of that most basic of all rights of every human being—is to say that it expresses a fundamental, absolutely binding subjective claim that cannot be denied intersubjectively.”^{Footnote 11} However, this right is not a right to being given reasons that are ‘justifying’ by just any standard of justification. Prior to further argument, there are many different, often competing, albeit prima facie reasonable conceptions of the standards of justification, including conceptions of personal, propositional, and interpersonal justification. Consequently, leaving open by what standards our reasons must be ‘justifying’ to duly respect others’ right to justification would effectively trivialize the right in question. For example, in some sense of the term, I ‘justify’ myself to you if I promulgate what, by my lights, gives me reason (or, say, makes it coherent, or epistemically responsible, for me) to believe that I may treat you as I do—whether or not you could ever accept my reasons. Accordingly, Forst takes it that the relevant standards of justification must be the ones dictated by our validity claims—this is the upshot of (1) and (2)—and he insists that our moral and political validity claims commit us to construe of the interpersonal acceptability of our reasons or principles as something that constitutes their justification (I shall return to this later). At the centre of his variant of constructivism, then, is the following claim:

1. (4) Moral and political principles raise validity claims such that they depend for their validity, or their justification, on meeting a requirement of reciprocal and general acceptability: such principles depend for their validity, or justification, on being equally acceptable by all affected others. (Forst applies RGA not only to substantive moral and political principles, but to every view, reason, practice, or institution, widely conceived, that is claimed to be morally good, right, valid, correct, or reasonable.)^{Footnote 12}

According to Forst, RGA, just like the principle of justification, the duty of justification and the right to justification, is reasonably non-rejectable. (I will return to this below.)^{Footnote 13}

While the four views just listed are building blocks of Forst’s constructivism that he applies to a wide array of themes, a fifth view is specific for his account of human rights:

1. (5) Human rights can be justified as entitlements that cannot be denied on reciprocally and generally acceptable grounds within justification discourses that duly respect the right to justification of each affected other.

Forst conjectures that justification discourses that respect the right to justification of each affected person, and that examine whether proposed, rights-allocating principles are suitably acceptable (or non-rejectable), allow us to justify as valid at least some meaningful set of rights to individual liberty and political participation, as well as rights to resources that enable the usage of these rights.^{Footnote 14} However, he in effect concedes that it is open how, or by what discursive mechanisms, such outcomes can be arrived at. Thus, on the one hand, he suggests that reasoners, in order to determine whether a proposed principle is suitably acceptable, must consider whether it can be arrived at in actual justification discourses. It is in this vein that he insists that political principles are valid only if all relevant people can give their assent to them—but “not just their counterfactual assent but assent based on institutionalized justification procedures.”^{Footnote 15} On the other hand, he concedes:

On Forst’s view, then, there might be many different ways to organize justification discourses so that they respect the right to justification of each participant, and allow participants to identify whether proposed principles, rights, or other views, are equally acceptable by all affected others. Now, Forst’s constructivism does not show just how this can be done: he stipulates, rather than establishes, that justification discourses can be organized accordingly.^{Footnote 17} And in the absence of an account of how they can be organized accordingly, we might be unable to tell whether there really are, or can be, institutional or discursive mechanisms that allow us to reason with any cogency from a Forst-type right to justification to substantive moral or political conclusions. But, if we are unable to tell this, we cannot know whether that right, mediated through such discourses, can provide a categorical foundation of these conclusions; for we would not know whether the link between that right and these conclusions is of a suitably cogent kind. However, while these concerns are serious, I shall now set them aside. What matters for my purposes in the first instance is the systematic status of the right to justification and RGA and the relationship between these things. For charity’s sake, therefore, I will not take issue with (5). Accordingly, let me grant, first, that substantive moral or political principles, including rights-allocating principles, can be arrived at in justification discourses that are organized to suitably respect a Forst-type right to justification, and second, that such discourses can be organized accordingly (whatever form this might take in a given cultural or social context).

With this in place, let us now turn to the two lines of thought in Forst’s approach referred to at the beginning of this section. A first line of thought is this. Forst claims that the right to justification is “not a specific, intersubjectively established and recognized human right, but rather the basis of a justification of concrete rights itself.”^{Footnote 18} In an exemplary passage, he adds:

Thus, an idea of moral respect for people, or their autonomy, gives rise to the view that they must be accorded a right to justification, or be respected as agents who “can demand acceptable reasons for any action that claims to be morally justified and for any social or political structure or law that claims to be binding upon him or her.”^{Footnote 20} Accordingly, Forst’s requirement of reciprocal and general acceptability—that is, of equal acceptability by all affected others—specifies a condition that moral or political reasons and principles must meet in order to properly accord with the equal right to justification of each affected person. Concrete human rights are then established as entitlements that cannot be rejected on reciprocally and generally acceptable grounds in discourses that respect the right to justification of each affected other.

Forst situates the right to justification in a different way when he highlights the role of the validity claims of moral-political principles:

This suggests that the reasonably non-rejectable ‘reason’ of human rights is RGA plus the view that RGA commits us to accord to others a right to justification. The reason RGA is reasonably non-rejectable is that (i) the validity claims of our moral or political reasons or principles require these things to be equally acceptable to all affected persons, so that (ii) we cannot coherently claim these things to be valid (or correct, right, or reasonable) while rejecting that they depend for their validity on their reciprocal and general acceptability.^{Footnote 22} As to the right to justification, it is “inherent” in RGA.^{Footnote 23} Roughly, the idea appears to be this: where discursive practices fully comply with the requirement of reciprocal and general acceptability, each reasonable participant will recognize that moral and political views, practices, or institutions, depend for their authority (or their validity, rightness, or reasonableness) on their equal acceptability to each affected other. For Forst, this means that each reasonable participant will recognize each affected other as being “worthy of being given adequate, justifying reasons in matters that affect them.”^{Footnote 24} That is, the discursive status that RGA requires us to accord to each affected other just is the status that Forst’s right to justification asks us to accord to them. As to other, concrete human rights, on this reading, too, they would be established as entitlements that cannot be rejected on reciprocally and generally acceptable grounds in discourses that duly respect the right to justification.

According to the first line of argument just sketched, Forst’s approach can provide a reasonably non-rejectable foundation of human rights only if there is an idea of moral respect that at once is reasonably non-rejectable and that commits us to accord to all affected others a Forst-type right to justification. According to the second line of argument, the approach provides the sought-after foundation only if our validity claims commit us to RGA. For Forst’s case to succeed, at least one of these lines of argument must succeed. I shall further elaborate on, and engage, the second line of argument in the next section. After this, in Sections 4 and 5, I will focus on the first line of argument.

3. The Argument from Validity Claims

The second line of argument turns on two views:

1. (6) Our moral-political validity claims must be reconstructed such that, where we claim moral or political principles to be right, we cannot coherently reject that they must be justifiable on grounds that are reciprocally and generally acceptable.

2. (7) The requirement of reciprocal and general acceptability commits us to accord to other people a right to justification.

Let me grant (7) in order to comment on (6) as this is the systematically more fundamental view.

Consider first what Forst’s requirement of reciprocal and general acceptability calls for. Principles are general in RGA’s sense only if they are acceptable to everyone affected by them; this commits us to a form of justificatory universalism.^{Footnote 25} As to reciprocity, Forst claims that RGA requires reciprocity “of content” and “of reasons.”^{Footnote 26} Reciprocity “of content” minimally requires that we treat like cases alike, and so calls for a form of formal impartiality. Reciprocity “of reasons” effectively imports a demand of equal acceptability, or non-rejectability. Thus, RGA is universalist and egalitarian, each term suitably understood. RGA is also a constructivist standard. For Forst, reciprocal and general acceptability does not flow from, but constitutes, the validity of principles and the goodness of reasons. This instantiates a constructivist conception of the link between the acceptability and the epistemic-practical authority—e.g., the validity, rightness, or reasonableness—of principles or reasons; roughly, constructivists take it that acceptability can constitute epistemic-practical authority, or justification.^{Footnote 27} That acceptability can have such a strong, justification-constitutive rank is denied by anti-constructivists, such as Platonists, moral realists, or perfectionists.^{Footnote 28} Anti-constructivists can still attach much value to acceptability. For instance, they might see it as a desirable by-product of justifications, or as a non-justificatory condition of the political legitimacy of just policies. And they might also concede that there is a close link between the authority and the acceptability of principles or reasons; after all, if good reasons are intellectually accessible at all, there is a sense in which they are a possible object of wide acceptance, namely, by all people who are capable of appreciating good reasons as good. Yet, anti-constructivists reverse the constructivist order of dependency: rather than taking the goodness of good reasons to depend on their acceptability, they take the acceptance of good reasons to be rational if it derives, or can derive, from an appreciation of their goodness. Thus, they seek “ideal” unanimity (Nagel), or “normative” consent (Estlund),^{Footnote 29} and see (relevant) acceptability not as a justification-constitutive, but as a justification-derivative property.

Should we take it, then, that our moral and political validity claims must be reconstructed as committing us to RGA? As I have argued elsewhere, an adequate reconstruction of our validity claims will not imply that they by themselves commit us to RGA.^{Footnote 30} Here is the crux of the issue. To be fully adequate, a reconstruction of the practice of raising validity claims must be true of at least all its competent and reasonable instantiations—‘competent’ and ‘reasonable,’ that is, as construed prior to settling the truth about justification, good reasons, and constructivism. And to initially arrive at such a reconstruction, equal charity must be extended to all its reasonable participants. Thus, we should reconstruct their discursive activities in ways that maximize, rather than selectively decrease, their intelligibility and coherence. Now, for better or worse, reasonable participants in the relevant practice often disagree about the requirements of justification in a given context and about the kind of moral status that we should accord to other people. Reasonable people might agree that we need to give others good reasons in support of our validity claims—evidently, constructivists and non-constructivists alike can accept this—but there are reasonable people who cannot in fact accept coherently that the goodness of good reasons is a function of their equal acceptability to all affected others. Included in this group are anti-constructivist, such as Platonists, moral realists, many perfectionists, but also constructivists who deny that equal acceptability to all affected others counts, rather equal acceptability by the reasonable, or the rational, or the right-minded.

If this is so, we should reconstruct our moral-political validity claims in terms that are abstract or minimal enough to remain neutral between pro-constructivist and con-constructivist doctrines of how best to raise or redeem them. And this disables the inference from our validity claims to RGA. If a reconstruction of the practice of raising moral or political validity claims entails that they by themselves commit us to a constructivist standard, such as RGA, then it is not suitably neutral between pro-constructivist and con-constructivist stretches of that practice. Hence there is reason to doubt that it adequately reconstructs all prima facie reasonable instantiations of that practice (as opposed to pro-constructivist instantiations only). But if a reconstruction of this practice is suitably neutral between its pro-constructivist and con-constructivist instantiations, then it may be adequate, but it cannot show that our moral or political validity claims by themselves commit us to RGA.

In short, unless we suppose that only pro-constructivist instantiations of the practice of raising moral or political validity claims are competent or reasonable—which, in the context at hand, would beg the question—a reconstructively adequate account of this practice cannot entail that raising moral-political validity claims commits to RGA. Hence we should reject claim (6), above.^{Footnote 31}

4. The Argument from Moral Respect

This brings me to the second line of argument in Forst, i.e., his argument from moral respect. On this reading of his approach, we saw earlier, an idea of moral respect grounds the right to justification, while RGA specifies a condition that justificatory discourses must meet to accord with the equal right to justification of each affected person. Concrete human rights are then established within justificatory discourses that meet this condition. Would such an idea of respect allow for a categorical, reasonably non-rejectable grounding of human rights? I shall suggest that this is not so. To commit us to a Forst-type right to justification, moral respect must be understood in a special way—it must be understood as discursive respect, as I will call it. But any conception of moral respect as discursive respect will be the subject of reasonable disagreement.

As a point of departure, let me distinguish between moral standing and discursive forms of such standing. Where we take others to have moral standing—or accord them baseline moral status, or include them in the scope of our moral concern—we take it that there are non-instrumental, moral reasons to protect or support them, or their good. Where we accord discursive forms of moral standing, in turn, we take it that the way in which others may be related to, e.g., in protecting or supporting them, must follow grounds, widely conceived, that are, in some relevant sense, acceptable to them. Now, there are at least two kinds of discursive standing, i.e., constitutive kinds and weaker, derivative kinds. Let me suppose that where we are reasonable, we are committed to acting on grounds that, at least as far as we can tell at the time, are good. Thus, where reasonable Betty accords to Paul constitutive standing, she is committed to acting toward him on grounds that are good and acceptable, but she takes it, as well, that the goodness of these grounds is at least partly a function of, or is constituted by, their acceptability to Paul. Where she accords to Paul derivative standing, in turn, she is committed to acting toward him on grounds that are both good and acceptable, but rather than taking their acceptability to be a condition of their goodness, she takes their acceptability, or valuable forms of it, to derive from, or be a consequence of, their goodness. To mark this contrast, I shall speak of discursive respect where we accord constitutive form of discursive standing.^{Footnote 32}

The difference between these two kinds of discursive standing matters greatly, but it should not be overdrawn: constitutive and derivative discursive standing are located on opposite ends of a sliding scale, thus allowing for many intermediate forms of discursive standing. At the level of theory, moral and political constructivism typically expresses a commitment to discursive respect at whatever level of thought such views apply a constructivist acceptability standard. For example, constructivist conceptions of justice take it that (qualified) acceptability to relevant other people constitutes the authority of principles of justice, or, say, their validity, rightness, or reasonableness, and so on. Such views thereby accord to the relevant others constitutive discursive standing, even though they may differ deeply about the nature, grounds and the boundaries of such standing. Let us observe again, though, that even if we adopt a variant of anti-constructivism, we can still attach value to the acceptability of principles. For example, we might take it that it is part of the human good that people can come around to accepting the principles that apply to them, or that their free support is necessary for the stability of a just regime, or that it promotes perfection in the polity as a whole. Yet, in relation to these principles we would accord to people a form of the weaker, derivative kind of discursive standing.

Let us apply this to the case at hand. For Forst, as for many other Kantians, moral respect requires discursive respect. To duly respect others, the assumption is, we must accord them constitutive discursive standing—this being the kind of standing that a Forst-type right to justification calls for. But why construe moral respect in these strong terms? Even if we agree that we should accord to other people discursive standing, why must we construe this as constitutive discursive standing? As it stands, there is nothing wrong conceptually with the view that moral respect requires moral concern and derivative discursive standing only. Normatively, it might ask for more—and that it does this is part of the point of Forst’s view that people should be accorded a right to justification that calls for justifications that meet RGA. But just how demanding and doctrinally selective can a conception of moral respect become before it fuses with normative, evaluative, or other content that renders it the subject of reasonable disagreement? Even if we conceptually tie reasonableness to moral respect—so as to taking it that it is unreasonable not to morally respect others—it does not follow that it is unreasonable to reject constructivist interpretations of moral respect. And that this is so can (and should) be conceded even where we take it that such conceptions are right, or particularly plausible: for that a view is right does not mean that those who do not accept it are unreasonable, nor does its plausibility entail the unreasonableness of people who are not like-minded.

In short, even if reasonableness is conceptually tied to moral respect, it does not follow that it is unreasonable to reject a commitment to discursive respect. There is more than one kind of discursive standing; and, as I assumed all along, there is reasonable controversy about the justificatory status of acceptability. Prior to further argument, then, to construe moral respect as discursive respect is to construe moral respect in terms that are reasonably contentious. If that is so, no conception of moral respect as discursive respect can provide a categorical, reasonably non-rejectable foundation for human rights—even if we agree that it is unreasonable not to morally respect all affected others, and even if we take it that we should accord them discursive respect.

5. On Moral Concern and Discursive Respect

Let me substantiate this further by considering the relationship between moral concern and discursive respect. Evidently, they can come apart. This is plain where we include beings in the scope of moral concern that lack a capacity for (direct) discursive inclusion, such as non-human animals. But they can come apart even in the case of people. For instance, some forms of constructivism accord discursive respect to subsets of affected people only, without accordingly restricting the scope of moral concern. Take Rawls-type political liberalism. Arguably, political liberals accord discursive respect, or constitutive discursive standing, only to people who are reasonable in a special, substantive sense. But political liberals do not deny that unreasonable people matter morally, and they insist that the unreasonable should be engaged in non-justificatory political arguments that aim to persuade them not to reject reasonable principles. Thus, political liberalism accords to the unreasonable discursive standing, yet a standing of the weak, derivative kind.^{Footnote 33} Logically (though perhaps not ethically) this is unobjectionable. That (i) Paul should be included in the scope of moral concern and that (ii) Paul has a capacity for inclusion in the scope of discursive respect does not by itself entail (iii) that Paul must be acted toward on grounds he can accept—construed in terms of constitutive discursive standing. Since (i) and (ii) leave open how we are to respond to the presence of the relevant capacity in Paul, (iii) does not follow unless we supply an additional view to the effect that the presence of the relevant capacity in Paul is a reason to accord to him constitutive discursive standing.

What sort of views can tie moral concern to discursive respect? How does the former, if crossed with the recognition of suitable discursive capacities in others, commit us to the latter? One answer that springs to mind is this: moral concern, we have seen, involves a commitment to protecting or supporting others, or their good. Thus, to have any determinacy, such concern must draw on some notion of what it takes to protect or support others, or their good. A self-suggesting source of a link between moral concern and discursive respect thus are conceptions of the good that place a premium on constitutive discursive standing. Moral concern does commit us to discursive respect if we take it to be a good not only that we be interacted with on grounds that we can accept, but also that we interact with others on grounds that they can accept (where the goodness of these grounds is taken to depend on their acceptability).

For just one example of such a conception of the good, take Postema’s view that people desire to be recognized as “robust” moral selves, or as people who are governed by an “ideal of reasonableness” and so are interested in pursuing not just aims “that they judge as worthy, but … in pursuing aims that are worthy.”^{Footnote 34} Even though Postema does not use these terms, he argues that this desire asks us to accord to one another discursive respect and that this commits us to robust, constructivist public justification. Lesser recognition, he insists, is inadequate for us.^{Footnote 35} However, this latter claim holds only to the extent that people attach importance to being seen by others as getting moral-political matters right (rather than other matters) and so it depends, amongst other things, on how deeply invested they are in such matters and on how much room they give them in relation to their other aims, commitments, or attachments. Of course, it also depends on whether sharing a practice of constructivist public justification is a suitable means to the end of securing that recognition—which it can be only if such justification is, or is seen to be, able to establish that things really “are worthy.” Plainly, the comparisons, rankings and value judgments that these things call for, as well as the constructivist conception of justification that goes with it, invite reasonable disagreement. This suggests that robust moral selfhood is not a Rawls-type primary good, or a thin, reasonably non-rejectable good.^{Footnote 36} Rather, it is a reasonably contestable conception of the good.

I hasten to add that while views of the good that place a premium on constitutive discursive standing are reasonably contestable, this may not be true of views like:

1. (8) It is an important good that I (or we) be interacted with on grounds I (or we) could accept.

2. (9) It is an important good that I (or we) interact with others on grounds they could accept.

(8) and (9) mark recipient-centered and author-centered views of the good of discursive standing. As they do not discriminate between derivative and constitutive forms of that standing, all they might call for are actions that are based on grounds that are good and for this reason acceptable (say, at least by the right-minded). Now, acting on grounds that are good is something we are committed to anyway if we are reasonable. Understood as views about derivative discursive standing, then, (8) and (9) seem to reflect different sides of the good of interacting reasonably—a good that, it seems, reasonable people cannot coherently reject.

Here is another observation on the status of constitutive discursive standing: what value this standing has for its recipients can vary depending on what it takes for grounds (reasons, or principles) to be suitably acceptable to them. Any conception of discursive respect must attach some interpretation to the idea of acceptability at its core, and different interpretations yield conceptions of discursive respect that differ in purchase.^{Footnote 37} Discursive respect has much purchase for you if I am to regard the fact that you are now committed to reject my reasons, given your actual views and volitions, as showing that they are not suitably acceptable to you—suitably acceptable, that is, as called for by discursive respect. Discursive respect can have little purchase for you if I take my reasons to be suitably acceptable to you so long as I see reason to believe that you would not reject them if you considered them in what I take to be the right light—say, even if it is incoherent for you to accept them or to ever consider them in that light. And, evidently, there is much middle ground between an actualist view of discursive respect that takes a simple rejection as showing that the needed kind of acceptability does not obtain, and a counterfactualizing view that can end up neutralizing the impact of well-considered rejections where they do not meet exclusionary threshold-tests of some sort or other. Part of what we do in calibrating the purchase of discursive respect, then, is to settle what baseline normative impact people’s actual views and volitions have on the grounds that, we take it, may govern interactions with them. Arguably, we thereby also link discursive respect to some view of the minimum degree of deliberative competency that, we believe, others must have for their rejections of our grounds to constitute reasons to doubt our grounds, or to even exercise, as Forst sometimes puts it, a “veto.”^{Footnote 38}

Now, we saw earlier that, while moral concern commits us to discursive respect where we suppose a conception of the good that places a premium on constitutive discursive standing, such conceptions are the subject of reasonable disagreement. More such disagreement is inevitable where we consider not only whether this standing is a good, but account for, or calibrate, what purchase it should have—be this disagreement about the merits of the practices of reasoning that different calibrations call for, or the desirability of the forms of life they enable, or the plausibility of the ideas of deliberative competency that they encapsulate. This corroborates further that a commitment to (calibrated) discursive respect is reasonably contestable. Even if reasonableness is tied to moral respect and requires us to accord to others discursive standing, it remains reasonably contestable whether we should also accord them discursive standing of the strong, constitutive variety—where this is the standing for which a Forst-type right to justification calls. In addition, even if we agree that it is unreasonable not to accord others constitutive discursive standing, or a Forst-type right to justification, we can still reasonably disagree as to what purchase this standing should have. Thus, we should conclude that Forst’s argument from moral respect does not provide a reasonably non-rejectable foundation of human rights.

6. Constructivist Reasonableness?

None of the above argues that we should not accord to other people discursive respect, or a right to justification. Instead, the above suggests that neither our validity claims, nor the commitment to respecting others morally, makes it unreasonable for us not to accord to others these things. For all we have seen, Forst’s approach is subject to fatal non-sequiturs: it remains open why what this approach appeals to as a reasonably non-rejectable foundation of human rights indeed is reasonably non-rejectable.

From a hermeneutic standpoint, non-sequiturs of this deep kind sometimes herald the presence of tacit suppositions. This brings me to Forst’s idea of reasonableness. I supposed all along that RGA and a commitment to discursive respect can reasonably be rejected. Evidently, Forst disagrees. He takes it that reasonable people recognize that they have an “unconditional duty” to justify themselves to others in accordance with a “principle of justification” to the effect that practical views, widely conceived, must “be justified in precisely the manner referred to by their validity claims.”^{Footnote 39} However, he seems to from the outset suppose:

1. (10) Reasonable people recognize that others have a right to justification (understood as a right to constitutive discursive standing, or discursive respect).

2. (11) Reasonable people accept the requirement of reciprocally and generally acceptability.^{Footnote 40}

If a constructivist idea of reasonableness like this is supposed, Forst’s constructivism might escape the problems noted here. Perhaps an account of the practice of raising validity claims can be reconstructively adequate even if it is true only of pro-constructivist ways to participate in this practice if only they are competent or reasonable. And perhaps an idea of moral respect as discursive respect can provide a categorical foundation of human rights if a commitment to discursive respect is part of what defines us as reasonable in the first place. Let us consider, then, whether Forst’s constructivism may suppose a constructivist idea of the reasonable.

A first concern is this: Forst’s constructivism aspires to provide a categorical, reasonably non-rejectable foundation of human rights, and it offers as such foundations a Forst-type right to justification and RGA. Now, if Forst’s constructivism can coherently suppose (10) and (11), he may be able to claim that these things are ‘reasonably’ non-rejectable. But this does not accomplish what Forst is after. Surely, categorical foundations of human rights (or of anything else) are not foundations that are ‘reasonably’ non-rejectable in terms of just any doctrinal conceptions of the reasonable—and, evidently, there are many competing conceptions of the notion^{Footnote 41}—but in terms of a conception of the reasonable that we truly should or must accept (whatever it may be). At the same time, Forst’s constructivist idea of the reasonable is the subject of reasonable objections if constructivism is the subject of such objections, and this, if anything, puts this idea in need of justification.^{Footnote 42} Why, then, should we accord to all affected others equal constitutive discursive standing? Even if Forst can coherently suppose (10) and (11), prior to answering this question, his account justifies human rights not categorically, but—much like its ‘ethical’ counterparts—at best hypothetically by grounding them in a commitment to the good of (equal) constitutive discursive standing—a good, though, that is reasonably contested and that stands in need of justification.

However, it is unclear that Forst’s constructivism can coherently suppose (10) and (11). With this, I turn to a second concern: it seems self-undermining for Forst to suppose a constructivist conception of reasonableness if indeed all affected others have a right to justification—assuming, that is, we adopt a deep view of that right, or of discursive respect. To see why this is so, consider first that conceptions of discursive respect can differ in their depth in the order of justification. Discursive respect varies in depth depending on the level of thought, argument, or decision-making, at which a commitment to the constitutive discursive standing of other people is expressed.^{Footnote 43} This commitment can be applied at many different levels of thought, including, but not limited to, these (they are listed in the order of increasing depth):

1. (i) the selection of reasons for action: e.g., R is a good reason to do A only if R is suitably acceptable as such a reason to all affected others;

2. (ii) the justification of first-order practical principles: e.g., for principles of justice to be valid, they must be suitably acceptable to all affected others;

3. (iii) the selection of standards of practical justification: e.g., for anything to qualify as a standard of the correctness (or rightness, validity, reasonableness) of political principles, it must be suitably acceptable to all affected others.

4. (iv) standards of reasoned thought: for any stretch of thought to be genuinely reasoned or reasonable, it must be such that it could coherently be accepted to all others for whom it is to count.^{Footnote 44}

Forst for the most part takes it that the right to justification imposes a constraint on the selection of first-order principles and reasons, substantive policies, or political institutions. But there is no a priori reason to leave things there, and Forst himself does not. The right to justification asks us to recognize others as “worthy of being given adequate, justifying reasons in matters that affect them,”^{Footnote 45} rather than in matters that exclusively are located at a particular level of thought. Accordingly, Forst takes this right to impose a constraint on the justificatory foundations to which an account of human rights appeals; after all, he rejects justifying human rights on reasonably contested, ‘ethical’ grounds since these are not equally acceptable to all relevant others.

Prior to further argument, then, Forst’s right to justification does its normative work at any level of thought at which other-affecting moral or political validity claims are being raised. Now it is plain that it can significantly affect people which ideas of reasonableness a polity treats as basic enough to suppose in public political discourses. Politically basic ideas of the reasonable play an important and complex role in the political and discursive inclusion of people as equals, insiders, or as ‘right-minded’; accordingly, discrediting dissenters as ‘unreasonable’ often is part of attempts to stifle, override or neutralize their voices. Other things being equal, then, a Forst-type right to justification should be deep enough to impose constraints on the ideas of reasonableness that we suppose in moral-political justification. However, for better or worse, a constructivist idea of the reasonable is not reciprocally acceptable to all affected others—there are prima facie reasonable people who (rightly or wrongly) cannot in fact accept constructivism coherently. This is so at least if we take it, as Forst does, that reasonable disagreement about a view rules out its reciprocal and general acceptability.^{Footnote 46} If all this is so, then it is self-undermining for Forst’s constructivism to presuppose a constructivist idea of the reasonable.

It is better aligned with the inclusivist spirit of the view that all affected others should be accorded equal right to justification if moral-political justification builds on an idea of the reasonable that abstracts from purported, doctrinal elements of reasonableness that are the subject of persistent and intelligent controversy. Elsewhere, I have made suggestions as to what content such an idea of the reasonable might have.^{Footnote 47} For example, it might have content associated with the meaning of the word ‘reasonable’ (as it is used in relation to people in their capacity as moral-political agents). As Moore points out, as per the meaning of the word, ‘reasonableness’ involves a commitment to a practice of reason-giving and reasonable people take it that others are worthy of reason-giving and at least some minimum consideration.^{Footnote 48} But this implies neither that reasonable people are committed to a constructivist practice of reason-giving, nor that they must accord to others constitutive discursive standing, rather than discursive standing of the weaker, derivative kind. There may be more content that may be built into a suitably inclusive, non-doctrinal idea of the reasonable.^{Footnote 49} But whatever content we may build into this idea, it may not by itself entail that RGA and the commitment to discursive respect are reasonably non-rejectable—especially if this idea, or justification practices that comply with it, are to cohere with the view that all affected people have an equal and deep right to justification.