|公 法 评 论
MORALITY AND ETHICAL LIFE:
DOES HEGEL'S CRITIQUE OF KANT APPLY TO DISCOURSE ETHICS?
Northwestern University Law Review, Volume 83 (Fall 1988 / Winter 1989).
Symposium on Law and Social Theory.
In recent years Karl Otto Apel and I have begun to reformulate Kant's ethics by grounding moral norms in communication, a venture to which I refer as "discourse ethics." n2 In this paper I hope to accomplish two things: first, to sketch the basic idea of discourse ethics, and second, to examine Hegel's critique of Kantian moral philosophy. In Part I, I will deal with two questions: What is discourse ethics, and what moral intuitions does discourse ethics conceptualize? The complicated matter of how to justify discourse ethics will only be addressed in passing. In Part II, I will turn to the question of whether Hegel's critique of Kantian ethics applies to discourse ethics as well. The criticisms Hegel levelled against Kant as a moral philosopher are many. From among them I will single out four which strike me as the most trenchant. First, Hegel objected to the formalism of Kantian ethics: Since the moral principle of the categorical imperative requires that the moral agent abstract from the concrete content of duties and maxims, its application necessarily leads to tautological judgments. n3 Second, Hegel objected to the abstract universalism of Kantian ethics: Since the categorical imperative enjoins separating the universal from the particular, a judgment considered valid in terms of that principle necessarily remains external to individual cases and insensitive to the particular context of a problem in need of solution. n4 Third, Hegel attacked the impotence of the mere ought: Since the categorical imperative enjoins a strict separation of "is" from "ought," it necessarily fails to answer the question of how moral insight can be actualized in practice. n5 Fourth and finally, Hegel objected to the terrorism of pure conviction (Gesinnung): Since the categorical imperative severs the pure postulates of practical reason from the formative process of spirit and its concrete historical manifestations, the imperative necessarily recommends to the advocates of the moral worldview a policy that aims at the actualization of reason and sanctions even immoral deeds, so long as they serve higher ends. n6
A. What is Discourse Ethics?
First, I want to comment briefly on the general nature of Kantian moral philosophy. It has all of the following attributes. It is deontological, cognitivistic, formalistic, and universalistic. Wanting to limit himself strictly to the class of justifiable normative judgments, Kant was forced to choose a narrow concept of morality. Classical moral philosophies had dealt with all the issues of the "good life." Kant's moral philosophy deals only with problems of right or just action. To him, moral judgments serve to explain how conflicts of action can be settled on the basis of rationally motivated agreement. Broadly speaking, they serve to justify actions in terms of valid norms and, in turn, to justify the validity of norms in terms of principles worthy of recognition. In short, the basic phenomenon that moral philosophy must explain is the normative validity (Sollgeltung) of commands and norms of action. This is what is meant by saying a moral philosophy is "deontological." A deontological ethics conceives the rightness of norms and commands on analogy with the truth of an assertortic statement.
It would be erroneous, though, to equate the moral "truth" of normative statements with the assertortic validity of propositional statements, a mistake made by intuitionism and value ethics. Kant does not make this mistake. He does not confuse theoretical with practical reason. As for myself, I hold the view that normative rightness must be regarded as a claim to validity that is analogous to a truth claim. This notion is captured by the term "cognitivist" ethics. A cognitivist ethics must answer the question of how to justify normative statements. Although Kant opts for the grammatical form of an imperative ("Act only according to that maxim by which you can at the same time will that it should become a universal law"), his categorical imperative, in fact, plays the part of a principle of justification that discriminates between valid and invalid norms in terms of their universalizability. The result is that what every rational being must be able to will is justified in a moral sense. This is what one means when one speaks of an ethics as being "formalistic." Discourse ethics replaces Kantian categorical imperative by a procedure of moral argumentation. Its principle postulates: Only those norms may claim to be valid that could meet with the consent of all concerned, in their role as participants in a practical discourse. n7 While retaining the categorical imperative after a fashion, discourse ethics scales it down to a principle of universalization. In practical discourses, this principle of universalization plays the part of a rule of argumentation. It postulates: For a norm to be valid, the consequences and side-effects of its general observances for the satisfaction of each person's particular interests must be freely accepted by all. Finally, an ethics is termed "universalistic" when it alleges that a moral principle, far from reflecting the intuitions of a particular culture or epoch, is valid universally. As long as the moral principle is not justified -- and justifying it involves more than simply pointing to the Kantian "fact of pure reason" -- the ethnocentric fallacy looms large. We must prove that our moral principle is not just a reflection of the prejudices of the adult, white, well-educated, western male of today. This is the most difficult part of the ethics, a part that I cannot expound in this paper. Briefly, the thesis discourse ethics puts forth in regard to its universality is this: Anyone who seriously undertakes to participate in argumentation, by that very undertaking, implicitly accepts general pragmatic presuppositions which have a normative content. The moral principle can then be derived from the content of these presuppositions of argumentation, provided one knows at least what it means to justify a norm of action. n8 These, then, are the deontological, cognitivist, formalist, and universalist assumptions that all moral philosophies of the Kantian type have in common. Let me make one more remark concerning the procedure I call practical discourse.
The viewpoint from which moral questions can be judged impartially is called the "moral point of view." Formalistic ethical theories furnish a rule explaining how something is looked at from the moral point of view. John Rawls, for example, recommends an original position, where those concerned meet as rational and equal partners who decide upon a contract, not knowing their own or each others' actual social positions. n9 G. H. Mead for his part recommends a different procedure that he calls ideal role-taking. It requires that any morally judging subject put herself in the position of all who would be affected if a problematic plan of action were carried out, or if a controversial norm were to take effect. n10 As a procedure, practical discourse is different from these two constructs, the Rawlsian and the Meadian. The argumentation carried out in discourse insures that all concerned in principle take part, freely and equally, in a cooperative search for truth, where nothing coerces anyone except the force of the better argument. Practical discourse is an exacting form of argumentative decisionmaking. Like Rawls' original position, it is a warrant of the rightness (or fairness) of any conceivable normative agreement that is reached under these conditions. Discourse can play this role because its idealized, partly counterfactual presuppositions are precisely those that participants in argumentation do in fact make. Because participants in argumentation do in fact make these presuppositions, resorting to Rawls' fictitious original position with its "veil of ignorance" is unnecessary. Practical discourse can also be viewed as a communicative process that exhorts all participants simultaneously to ideal role-taking. Thus, practical discourse transforms what Mead viewed as individual, privately enacted role-taking into a public affair, practiced intersubjectively by all involved. n11
B. What Moral Intuitions Does Discourse Ethics Conceptualize?
How can it be argued that the procedural explanation that discourse ethics provides of the moral point of view -- in other words, of the impartiality of moral judgment -- constitutes an adequate account of moral intuitions, which are after all substantive in kind? This is an open question that needs to be addressed.
"Moral intuitions" are intuitions that instruct us on how to best behave in situations where it is in our power, by being thoughtful and considerate, to counteract the extreme vulnerability of others. In anthropological terms, morality is a safety device compensating for a vulnerability that is built into the socio-cultural form of life. The basic facts of such a socio-cultural form of life are the following: Creatures that are individuated only through socialization are vulnerable and morally in need of considerateness. Competent subjects -- competent in both a linguistic and a behavioral sense of the term -- are constituted as individuals by growing into an intersubjectively shared lifeworld; and the lifeworld of a language community is reproduced in turn through the communicative actions of its members. This explains why the identity of the individual and that of the collective are interdependent; they form and maintain themselves together. Built into the consensus-oriented language use of social interaction, there is an inconspicuous necessity for participants to become more and more individuated. Conversely, everyday language is also the medium by which the intersubjectivity of a shared world is maintained. n12 Thus, the more differentiated the structures of the lifeworld become, the easier it is to discern the simultaneous growth of the autonomous individual subject and his dependence on interpersonal relationships and social ties. The more the subject becomes individuated, the more he becomes entangled in a densely woven fabric of mutual recognition, and this means a fabric of reciprocal exposure and vulnerability. Unless the subject externalizes himself by participating in interpersonal relations through language, he is unable to form that inner center that is his personal identity. This explains the almost constitutional insecurity and chronic fragility of personal identity -- an insecurity that is antecedent to cruder threats to the integrity of life and limb.
Moral philosophies of sympathy and compassion have discovered that this profound vulnerability calls for some guarantee of mutual consideration. n13 This considerateness has the twofold objective of defending the integrity of the individual and of preserving the vital fabric of ties of mutual recognition through which individuals reciprocally stabilize their fragile identities. No one can maintain his identity by himself. Consider even the often believed solitary act of suicide, for example. Notwithstanding the view of Stoic philosophy that held that this final, desperate act reflects the imperious self-determination of the lone individual, the responsibility for suicide can never be attributed to this individual alone. Actually, this seemingly loneliest of deeds enacts a fate for which others collectively must take some of the blame, the fate of ostracism from an intersubjectively shared lifeworld.
Since moralities are tailored to suit the fragility of human beings who are individuated through socialization, they must always solve two tasks at once. Moralities must emphasize the inviolability of the individual by postulating equal respect for the dignity of every one. But they must also protect the web of intersubjective relations of mutual recognition by which these individuals survive as members of a community. To these two complementary tasks correspond the principles of justice and solidarity, respectively. The first postulates equal respect and equal rights for the individual, whereas the second postulates empathy and concern for the well-being of one's neighbor. Justice in the modern sense of the term refers to the subjective freedom of inalienable individuality. Solidarity refers to the well-being of associated members of a community who intersubjectively share the same lifeworld. William Frankena distinguishes a principle of justice or equal treatment from a principle of beneficence that commends us to advance the common weal, to avert harm and to do good. n14 In my view, it is important to see that both principles have one and the same root. This root lies in the specific vulnerability of the human species, which individuates itself through socialization. Morality therefore cannot protect the rights of the individual without also protecting the well-being of the community to which the individual belongs.
The fundamental motif of an ethics of compassion can be pushed to the point where the link between the two moral principles become clear. In the past, these principles have served as core elements of two contrary traditions in moral philosophy. Theories of duty have always centered on the principle of justice, whereas theories of the good have always emphasized the common weal. Hegel was the first to argue that we misperceive the basic moral phenomenon if we isolate both aspects, assigning opposite principles to each. His concept of ethical life Sittlichkeit is an implicit criticism of two kinds of one-sidedness, one the mirror image of the other. Hegel opposes the abstract universality of justice manifesting itself in the individualist approaches of the modern age, in rational natural right theory, and in Kantian moral philosophy. No less vigorous is his opposition to the concrete particularism of the common good that pervades Aristotle and Saint Thomas. The ethics of discourse picks up this basic Hegelian aspiration -- in order to redeem it with Kantian means.
This idea is not so stunning if one keeps in mind that discourses, treating as they do problematic validity claims as hypotheses, represent a reflective form of communicative action. To put it another way, the normative content of the pragmatic presuppositions of argumentation is borrowed from that of communicative action, onto which discourses are superimposed. This is why all moralities coincide in one respect: The same medium, that is, linguistically mediated interaction, is both the reason for the vulnerability of socialized individuals and the key resource they possess to compensate for that vulnerability. Every morality revolves around equality of respect, solidarity, and the common good. Fundamental ideas like these can be reduced to the relations of symmetry and reciprocity presupposed in communicative action. In other words, the common core of all kinds of morality can be traced back to the reciprocal imputations and shared presuppositions actors make when they seek understanding in everyday situations. n15 Admittedly, their range in everyday practice is limited. While equal respect and solidarity are present in the mutual recognition of subjects who orient their actions to validity claims, normative obligations usually do not transcend the boundaries of a concrete lifeworld, be it that of a family, a neighborhood, a city, or a state. There is only one reason why discourse ethics, which presumes to derive the substance of a universalistic morality from the general presuppositions of argumentation, is a promising strategy: Discourse or argumentation is a more exacting type of communication, going beyond any particular form of life. Discourse generalizes, abstracts, and sketches the presuppositions of contextbound communicative actions by extending their range to include competent subjects beyond the provincial limits of their own particular form of life.
These considerations address the issue of whether and why discourse ethics, although it is organized around a concept of procedure, can be expected to say something relevant about substance as well and, more important perhaps, about the hidden link between justice and the common good, which have traditionally been divorced, giving rise to an ethics of duty on the one hand and an ethics of the good on the other. On the strength of its improbable pragmatic features, practical discourse, or moral argumentation, serves as a warrant of insightful will-formation, insuring that the interests of individuals are given their due without cutting the social bonds that unite them intersubjectively. n16
In his capacity as a participant in argumentation, everyone is on his own and yet embedded in a communication context. This is what Apel means by an "ideal community of communication." In discourse, the social bond of belonging is left intact despite the fact that the consensus required of all concerned transcends the limits of any actual community. The agreement made possible by discourse depends on two things: (1) the individual's inalienable right to say yes or no, and (2) the overcoming, by him, of his egocentric viewpoint. Without the individual's uninfringeable freedom to respond with a "yes" or "no" to criticizable validity claims, consent is merely factual rather than truly universal. Conversely without emphatic sensitivity by everyone to everyone else, no solution deserving universal consent will result from the deliberation. These two aspects -- the autonomy of inalienable individuals and their embeddedness in an intersubjectively shared web of relations -- are internally connected, and it is this link that the procedure of discursive decision-making takes into account. The equal rights of individuals, and the equal respect for the personal dignity of each, depend upon a network of interpersonal relations and a system of mutual recognition. Thus, while the degree of solidarity and the growth of welfare are indicators of the quality of communal life, they are not the only ones. Just as important is the fact that equal consideration be given to the interests of every individual in defining the general interest. Going beyond Kant, discourse ethics extends the deontological concept of justice by including in it those structural aspects of the good life that can be distinguished from the concrete totality of specific forms of life.
For all its affinities with Kant's moral theory, discourse ethics is rather different. Before going on to consider Hegel's objections to Kantian ethics, I want to focus briefly on three differences that strike me as important.
First, discourse ethics gives up Kant's dichotomy between an intelligible realm comprising duty and free will, and a phenomenal realm comprising inclinations, subjective motives, political and social institutions, and so on. n17 The quasi-transcendental necessity with which subjects involved in communicative interaction orient themselves to validity claims is reflected only in their being constrained to speak and act under idealized conditions. The unbridgeable gap Kant saw between the intelligible and the empirical becomes, in discourse ethics, a mere tension manifesting itself in everyday communication as the factual force of counterfactual presuppositions. Second, discourse ethics rejects the monological approach of Kant who assumed that the individual tests his maxims of action foro interno or, as Husserl put it, in the loneliness of his soul. The singularity of Kant's transcendental consciousness simply takes for granted a prior understanding among empirical egos in the plural; their harmony is pre-established. In discourse ethics it is not. Discourse ethics prefers to view shared understanding about the generalizability of interests as the result of an intersubjectively mounted public discourse. There are no shared structures preceding the individual, except the universals of language use. Third, Kant's unsatisfactory handling of a specific problem of justification -- when he evasively points to the alleged "fact of pure reason," arguing that the effectiveness of the "ought" is simply a matter of experience -- is improved upon by discourse ethics. Discourse ethics solves this problem by deriving a principle of universalization from the universal presuppositions of argumentation.
A. On the Formalism of the Moral Principle.
Neither Kantian ethics nor discourse ethics lays itself open to the charge that, since it defines the moral principle in formal or procedural terms, it can only make tautological statements about morality. Hegel was wrong to imply that these principles postulate logical and semantic consistency, and nothing else. In fact they do postulate the employment of a substantive moral point of view. The issue is not whether normative statements must have the grammatical form of universal sentences. The issue is whether we can all will that a contested norm gain binding force under given conditions. n18 The content that is tested by a moral principle is generated, not by the philosopher, but by real life. The conflicts of action that come to be morally judged and consensually resolved grow out of everyday life. Reason as a tester of maxims, as was conceived by Kant, or actors as participants in argumentation, as is contained in the notion of discourse ethics, find these conflicts. They do not create them. n19
There is a somewhat different sense in which Hegel's charge of formalism does ring true. Any procedural ethics must distinguish between the structure and the content of moral judgment. Its deontological abstraction segregates from among the mass of practical issues in general precisely those that lend themselves to rational debate. They alone are subjected to a justifactory test. In short, this procedure of abstraction and justification differentiates normative statements about the hypothetical "justice" of actions and norms from evaluative statements about subjective preferences that we articulate in reference to our notion of what the good life happens to be, which in turn is a function of our cultural heritage. Hegel believed it was this tendency to abstract from the good life that made it impossible for morality to claim jurisdiction over the substantive problems of daily life. He has a point, but his criticism overshoots its aim. To cite an example, human rights obviously embody generalizable interests. As such, they can be morally grounded in terms of what all could will. And yet, nobody would argue that these rights, which represent the moral substance of our legal system, are irrelevant for the Sittlichkeit of modern life.
In the back of Hegel's mind was a theoretical question that is rather more difficult to answer: Can one formulate concepts like universal justice, normative rightness, the moral point of view, and others, independently of any vision of the good life? Noncontextual definitions of a moral principle, I admit, have not been satisfactory up to now. Negative versions of the moral principle seem to be a step in the right direction. They heed the prohibition of graven images, refrain from positive depiction and, as in the case of discourse ethics, refer negatively to the damaged life instead of pointing affirmatively to the good life. n20
B. On the Abstract Universalism of Morally Justified Judgment.
Neither Kantian ethics nor discourse ethics lays itself open to the objection that a moral point of view based on the generalizability of norms leads to the neglect, if not the repression, of existing conditions and interests in a pluralist society. As interests and value orientations become more differentiated in modern societies, the morally justified norms that control the individual's scope of action in the interest of the whole become ever more general and abstract. Modern societies are also characterized by the need for regulations that impinge only on particular interests. While these matters do require regulation, a discursive consensus is not needed; compromise is quite sufficient in this area. Let us keep in mind, though, that fair compromise in turn calls for morally justified procedures of compromising.
Hegel's objection sometimes takes the form of an attack on rigorism. A rigid procedural ethics, especially one that is practiced monologically, fails, so the argument goes, to take account of the consequences and side-effects that may flow from the generalized observance of a justified norm. Max Weber was prompted by this objection to counterpose an ethics of responsibility to what he termed Kant's ethics of conviction. The charge of rigorism applies to Kant. It does not apply to discourse ethics, since the latter breaks with Kant's idealism and monologism. Discourse ethics has a built-in procedure that insures awareness of consequences. This comes out clearly in the formulation of the principle of universalism, which requires sensitivity to the results and consequences of the general observance of a norm for every individual.
Hegel is also right in another respect, too. Moral theories of the Kantian type are specialized. They focus on questions of justification, leaving questions of application unanswered. An additional effort is needed to undo the abstraction (from particular situations and individual cases) that is an inevitable part, at least initially, of the process of justification. No norm contains within itself the rules for its application. Moral justifications however are pointless unless the decontextualization of the general norms used in justification is compensated for in the process of application. Like any moral theory, discourse ethics cannot evade this difficult problem. The problem may be stated as follows: Does the application of rules to particular cases necessitate a separate and distinct faculty of prudence or judgment that would tend to undercut the universalistic claim of justificatory reason because it is tied to the parochial context of some hermeneutic starting point? The neo-Aristotelian way out of this dilemma is to argue that practical reason should forswear its universalistic intent in favor of a more contextual faculty of judgment. n21 Since judgment always moves within the ambit of a more or less accepted form of life, it finds support in an evaluative context that engenders continuity between questions of motivation, empirical issues, evaluative and normative issues.
In contrast to the neo-Aristotelian position, discourse ethics is emphatically opposed to going back to a stage of philosophic thought prior to Kant. Kant's achievement was precisely to dissociate the problem of justification from the application and implementation of moral insights. I would like to argue that even in the prudent application of norms, principles of practical reason take effect. Suggestive evidence is provided by certain classical notions, for instance the principles that all relevant aspects of a case must be considered and that means should be proportionate to ends. Principles such as these promote the idea of impartial application, which is not a prudent but a moral point of view.
C. On the Impotence of the "Ought."
Kant is vulnerable to the objection that his ethics lacks practical impact because it dichotomizes duty and inclination, reason and sense experience. The same cannot be said of discourse ethics, for it discards the Kantian theory of the two realms. The concept of practical discourse postulates the inclusion of all interests that may be affected; it even covers the critical testing of interpretations through which we come to recognize certain needs as our own interests in the first place. Discourse ethics also reformulates the concept of autonomy. In Kant, autonomy was conceived as freedom under self-given laws, thus involving an element of coercive subordination of subjective nature. In discourse ethics, the idea of autonomy is intersubjective. It takes into account the fact that the free actualization of the personality of one individual depends on the actualization of freedom for all.
In another respect Hegel is right. Practical discourse does disengage problematic actions and norms from the substantive Sittlichkeit of their lifeworld contexts, thus, subjecting them to hypothetical reasoning without regard to existing motives and institutions. This causes norms to becomes removed from the world (entweltlicht) -- an unavoidable step in the process of justification, but also one for which discourse ethics might consider making amends. For unless discourse ethics is undergirded by the thrust of motives and by socially accepted institutions, the moral insights it offers remain ineffective in practice. Insights, Hegel rightly demands, should be transformable into the concrete duties of everyday life. This much is true: Any universalistic morality is dependent upon a form of life that meets it halfway. There has to be a modicum of congruence between morality and the practices of socialization and education. The latter must be such as to promote the requisite internalization of superego controls and abstractness of ego-identities. In addition, there must be a modicum of fit between morality and socio-political institutions. Not just any institution will do. Morality thrives only in an environment in which post-conventional ideas about law and morality have already been institutionalized to a certain context.
Moral universalism is a historical result. It arose, with Rousseau and Kant, in the midst of a specific society that possessed corresponding features. The last two or three centuries have witnessed the emergence, after a long "see-sawing" struggle, of a directed trend toward the realization of basic rights. This process has led to, shall we cautiously say, a less and less selective reading and utilization of the universalistic meaning that norms which pertain to fundamental rights do have; the process testifies to the "existence of reason," if only in bits and pieces. Without these fragmentary realizations, the moral intuitions that discourse ethics conceptualizes would never have proliferated the way they did. To be sure, the gradual embodiment of moral principles in concrete forms of life is not something that can safely be left to Hegel's absolute spirit. Rather, such embodiment is chiefly a function of collective efforts and sacrifices made by socio-political movements. Philosophy would do well to avoid haughtily dismissing these movements and the larger historical dimension from which they spring.
D. On the Subject of Virtue and the Way of the World.
Neither Kantian ethics, nor discourse ethics exposes itself to the charge of abetting, let alone justifying, totalitarian ways of doing things. This charge has recently been taken up by neo-conservatives. The maxim that the end justifies the means is utterly incompatible with both the letter and the spirit of moral universalism -- even when it is a question of politically implementing universalistic legal and constitutional principles. A problematic role is played in this connection by certain notions held in the philosophy of history by Marxists and others. Realizing that the political practice of their chosen "macro-subject" of society is sputtering, if not paralyzed, they delegate revolutionary action to an avantgarde with proxy functions. The error of this view is to conceive of society as a subject-writ-large, and then to pretend that the actions of the avant-garde need not be held any more accountable than those of the higher-level subject of history. In contrast to any philosophy of history, the intersubjectivist approach of discourse ethics breaks with the premises of the philosophy of consciousness; the only higher-level intersubjectivity it acknowledges is that of public spheres.
Hegel rightly sets off action under moral laws from political practice that aims to bring about, or at least to promote, the institutional prerequisites for general participation in moral reasoning of a post-traditional type. Can the realization of reason in history be a meaningful objective of intentional action? As I argued earlier, the discursive justification of norms is not a warrant for the actualization of moral insight. This problem, the disjunction between judgment and action on the output side, to use computer jargon, has its counterpart on the input side: Discourse cannot by itself insure that the conditions necessary for the actual participation of all concerned are met. Often, crucial institutions are lacking that would facilitate discursive decisionmaking. Often, crucial socialization processes are lacking, so that the dispositions and abilities necessary for taking part in moral argumentation cannot be learned. Even more frequent is the case where material living conditions and social structures are such that moral-practical implications spring immediately to the eye and moral questions are answered, without further reflection, by the bare facts of poverty, abuse and degradation. Wherever this is the case, wherever existing conditions make a mockery of the demands of universalist morality, moral issues turn into issues of political ethics. This raises the important question: How can a political practice that is designed to realize the conditions necessary for a dignified human existence be morally justified? n22 The kind of politics at issue is one that aims at changing a form of life from moral points of view, although it is not reformist and can therefore not operate in accordance with existing laws and institutions. The issue of revolutionary morality, which incidentally has never been satisfactorily discussed by Marxists, either Eastern or Western, is fortunately not an urgent one in our type of society. Not so moot are cognate issues like civil disobedience, which I have discussed elsewhere. n23
In sum, I argue that Hegel's objections apply less to the reformulation of Kantian ethics itself than to a number of resulting problems that discourse ethics cannot resolve with a single stroke. Any ethics that is at once deontological, cognitivist, formalist and universalist ends up with a relatively narrow conception of morality that is uncompromisingly abstract. This raises the problem of whether issues of justice can be isolated from particular contexts of the good life. This problem I believe can be solved by discourse ethics. A second difficulty, however, makes its appearance as well, namely, whether practical reason may be forced to abdicate in favor of a faculty of judgment when it comes to applying justified norms to specific cases. Discourse ethics, I think, can handle this difficulty too. A third problem concerns whether it is reasonable to hope that the insights of a universalistic morality are susceptible of translation into practice. Surely the incidence of such a morality is contingent upon a complementary form of life. This list by no means exhausts the possible problems consequent from discourse ethics. I have here mentioned only one more: How can political action be morally justified, when the social conditions in which practical discourses can be carried on and moral insight can be generated and transformed do not exist but have to be created? I have so far not addressed two other problems that flow from the self-limitation of every nonmetaphysical point of view.
Discourse ethics does not see fit to resort to an objective teleology, least of all to a countervailing force that tries to negate dialectically the irreversible succession of historical events -- as was the case, for instance, with the redeeming judgment of the Christian God on the Last Day. But how can we live up to the principle of discourse ethics that postulates the consent of all, if we cannot make restitution for the injustice and pain suffered by previous generations -- or if we cannot at least promise an equivalent for the day of judgment and its power of redemption? Is it not obscene for present-day beneficiaries of past injustices to expect the posthumous consent of slain and degraded victims to norms that appear justified to us in light of our own expectations regarding the future? n24 It is just as difficult to answer the basic objection of ecological ethics: How does discourse ethics, which is limited to subjects capable of speech and action, respond to the fact that mute creatures are also vulnerable? Compassion for tortured animals and the pain caused by the destruction of biotopes -- these surely are manifestations of moral intuitions that cannot be fully satisfied by the collective narcissism of what, in the final analysis, is an anthropocentric way of looking at things.
At this point I want to draw only one conclusion from these skeptical considerations.
Since the concept of morality is limited, the self-perception of moral theory
should be correspondingly modest. It is incumbent on moral theory to explain
and ground the moral point of view. What moral theory can do and should be
trusted to do is clarify the universal core of our moral intuitions, thereby
refuting value skepticism. What it cannot do is make any kind of substantive
contribution. By singling out a procedure of decisionmaking, it seeks to make
room for those involved, who must then, under their own steam, find answers
to the moral-practical issues that come at them, or are imposed upon them,
with objective historical force. Moral philosophy does not have privileged
access to particular moral truths. In view of the four big moral-political
liabilities of our time -- hunger and poverty in the Third World; torture
and continuous violations of human dignity in autocratic regimes; increasing
unemployment and disparities of social wealth in Western industrial nations;
and finally the self-destructive risks of the nuclear arms race -- in view
of real provocations like these, my modest opinion about what philosophy can
and cannot accomplish may come as a disappointment. Philosophy cannot absolve
anyone of moral responsibility, including philosophers. Like everyone else,
they face moral-practical issues of great complexity, and the first thing
they might profitably do is get a clearer view of the situation in which they
find themselves. The historical and social sciences can be of greater help
in this endeavor than philosophy. On this note, I want to end with a quote
from Max Horkheimer from the year 1933: "What is needed to get beyond
the utopian character of Kant's idea of a perfect constitution of humankind,
is a materialist theory of society." n25
n1 This Article is taken from a collection of essays by Jurgen Habermas entitled MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION that will be published by MIT Press in 1989.
n2 See Karl Otto Apel's essays in PRAKTISCHE PHILOSOPHIE/ETHIK (D. Bother and G. Kadelbach eds. 1984) [PRACTICAL PHILOSOPHY/ETHICS]. See also Habermas, Discourse Ethics, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION (forthcoming).
n3 In Hegel's words:
But the content of the maxim remains what it is, a specification or singularity,
and the universality conferred on it by its reception into the form is a merely
analytic unity. And when the unity conferred on it is expressed in a sentence
purely as it is, that sentence is analytic and tautological.
G. W. F. HEGEL, NATURAL LAW 76 (T. M. Knox trans. 1975).
The same formalism manifests itself in the fact that any maxim at all can take the form of a universal law. As Hegel put it: "There is nothing whatever which cannot in this way be made into a moral law." Id. at 77.
n4 Again, in Hegel's words:
The moral consciousness as the simple knowing and willing of pure duty is
. . . brought into relation with the object which stands in contrast to its
simplicity, into relation with the actuality of the complex case, and thereby
has a complex moral relationship with it. . . . As regards the many duties,
the moral consciousness in general heeds only the pure duty in them; the many
duties qua manifold are specific and therefore as such have nothing sacred
about them for the moral consciousness.
G. W. F. HEGEL, PHENOMENOLOGY OF SPIRIT 369-70 (A. V. Miller trans. 1977).
The counterpart to abstracting from the particular is hypostatizing the particular, for it becomes unrecognizable in the form of the universal: "By confusing absolute form with conditioned matter, the absoluteness of the form is imperceptibly smuggled into the unreal and conditioned character of the context; and in this perversion and trickery lies the nerve of pure reason's practical legislation." G. W. F. HEGEL, supra note 2, at 79.
n5 Hegel wrote:
The moral consciousness . . . learns from experience that Nature is not concerned
with giving it a sense of the unity of its reality with that of Nature. .
. . The non-moral consciousness . . . finds, perhaps by chance, its realization
where the moral consciousness sees only an occasion for acting, but does not
see itself obtaining, through its action, the happiness of performance and
the enjoyment of achievement. Therefore, it finds rather cause for complaint
about such a state of incompatibility between itself and existence, and about
the injustice which restricts it to having its object merely as pure duty,
but refuses to let it see the object and itself realized.
G. W. F. HEGEL, supra note 3, at 366.
n6 In the Phenomenology of Spirit Hegel devotes a famous section entitled "Virtue and the Way of the World" to a discussion of Jacobian moral zeal (Gesinnungsterror). In it he shows how morality can be turned into a means to bring "the good into actual existence by the sacrifice of individuality." Id. at 233.
n7 K. H. Ilting seems to have missed the fact that the notion of what can be consented to merely operationalizes what he himself calls the "imposability" of norms. Only those norms are "imposable" for which a discursive agreement among those concerned can be reached. See K. H. ILTING, Der Geltungsgrund moralischer Normen, in KOMMUNIKATION UND REFLEXION 629 (W. Kuhlmann and D. Bohler eds. 1982) [COMMUNICATION AND REFLECTION].
n8 The concept of the justification of norms must not be strong, otherwise the conclusion -- that justified norms must have the assent of all concerned -- will already be contained in the premise. I committed such a petitio principii in Discourse Ethics, supra note 1.
n9 J. RAWLS, A THEORY OF JUSTICE 136 (1971) ("The idea of the original position is to set up a fair procedure so that any principles agreed to will be just.").
n10 G. H. MEAD, Fragments on Ethics, in MIND, SELF, AND SOCIETY 379-89 (1934). The concept of ideal role-taking also underlies Kohlberg's theory of moral development. See also H. JOAS, G. H. MEAD: A CONTEMPORARY RE-EXAMINATION OF HIS THOUGHT 121-22 (1985).
n11 Practical discourse can fulfill functions other than critical ones only when the subject-matter to be regulated touches on generalizable interests. Whenever exclusively particular interests are at stake, practical decisionmaking necessarily takes the form of compromise. J. HABERMAS, LEGITIMATION CRISIS 111 (T. McCarthy trans. 1975).
n12 J. HABERMAS, The Theory of Communicative Action, in 2 LIFEWORLD AND SYSTEM 58 (1987).
n13 Schopenhauer is one such philosopher. Compare my critique of Arnold Gehlen:
The profound vulnerability that makes necessary an ethical regulation of
behavior as a counterpoise is rooted not in the biological weakness of humans,
in the newborn infant's lack of organic faculties, or in the risks of an over-lengthy
rearing period, but in the cultural systems that are constructed as compensation.
The fundamental problem of ethics is guaranteeing mutual consideration and
respect in a way that is effective in actual conduct. That is the core of
truth in any ethics of compassion.
J. HABERMAS, Imitation Substantiality, in PHILOSOPHICAL-POLITICAL PROFILES 120 (1983).
n14 W. FRANKENA, ETHICS 45 (1973).
n15 This is an old topic of action theory. See Gouldner, The Norm of Reciprocity, AM. SOC. REV. 161-78 (1960).
n16 Michael Sandel has justly criticized Rawls for saddling his construct
of an original position with the atomistic legacy of contract theory. Rawls
envisions isolated, independent individuals who, prior to any sociation, possess
the ability to pursue their interests rationally and to posit their objectives
monologically. Accordingly, Rawls views the basic covenant not so much in
terms of an agreement based on argumentation as in terms of an act of free
will. His vision of a just society boils down to a solution of the Kantian
problem of how the individual will can be free in the presence of other individual
wills. Sandel's own anti-individualist conception is not without problems
either, in that it deepens further the separation between an ethics of duty
and an ethics of the good. Over against Rawls' presocial individual, he posits
an individual who is the product of his community; over against the rational
covenant of autonomous individuals, he posits a reflective awareness of prior
social bonds; over against Rawls' idea of equal rights, he posits the idea
of mutual solidarity; and over against equal respect for the dignity of the
individual, he posits the advancement of the common good. With these traditional
juxtapositions Sandel blocks the way to an intersubjectivist extension of
Rawls' ethics of justice. He roundly rejects the deontological approach, returning
to a teleological conception that presupposes an objective notion of community.
Sandel writes, "For a society to be a community in the strong sense,
community must be constitutive of the shared self-understandings of the participants
and embodied in their institutional arrangements, not simply an attribute
of certain of the participants' plans of life." M.J. SANDEL, LIBERALISM
AND THE LIMITS OF JUSTICE 173 (1982).
Clearly, totalitarian (i.e. forcibly integrated) societies do not fit this description -- which is why Sandel would have to explicate carefully what the normative content is of key notions like "community," "embodied," and "shared self-understanding." He does not do so. If he did, he would realize (as in the case of A. MACINTYRE, AFTER VIRTUE (1981)) just how onerous a burden of proof neo-Aristotelian approaches must bear. Such approaches must demonstrate how an objective moral order can be grounded without recourse to metaphysical premises.
n17 K.O. APEL, Kant, Hegel und das aktuelle Problem der normativen Grundlagen von Moral und Recht, in KANT ODER HEGEL 597 (D. Henrich ed. 1983)[KANT OR HEGEL].
n18 See G. PATZIG, Der Kategorische Imperativ in der Ethikdiskussion der Gegenwart, in TATSACHEN, NORMEN, SATZE 155 (1980) [FACTS, NORMS, SENTENCES].
n19 The controversial subjects Kant focused on, that is, stratum-specific "maxims of action" in early bourgeois society, were not produced by law-giving reason, but simply taken up by law-testing reason as empirical givens. If one realizes this, then Hegel's attack on Kant's example of the deposit given into safekeeping becomes groundless. See I. KANT, CRITIQUE OF PRACTICAL REASON 286 (L. Beck trans. 1949).
n20 Conversely, one might ask critically what evidence there is for the suspicion that universal and particular are always inextricably interlocked. We saw earlier that practical discourses are not only embedded in complexes of action but also represent continuations of action oriented to reaching understanding, at a higher plane of reflection. Both have the same structural properties. But, in the case of communicative action there is no need to extend the presuppositions about symmetry and reciprocity to actors not belonging to the particular collectivity or lifeworld. By contrast, this extension into universality does become necessary, indeed forced, when argumentation is at issue. No wonder that ethical positions starting from the Sittlichkeit of concrete forms of life, such as the polis, the state, or a religious community, have trouble generating a universal principle of justice. This problem is less troublesome for discourse ethics, for the later presumes to justify the universal validity of its moral principle in terms of the normative content of communicative presuppositions of argumentation as such.
n21 See E. VOLLRATH, DIE REKONSTRUKTION DER POLITISCHEN URTEILSKRAFT (1977) (RECONSTRUCTION OF POLITICAL JUDGMENT).
n22 J. HABERMAS, THEORY AND PRACTICE 32 (J. Viertel trans. 1973).
n23 J. HABERMAS, DIE NEUE UNBERSICHTLICHKEIT (1985) (part of this collection of essays is translated in A NEW CONSERVATISM (Shierry Weber Nicholsen trans. 1989)) (the German title may be translated THE NEW OBSCURITY). Problems of this kind do not lie on the same plane of complexity as the objections discussed earlier. First, the relationships among morality, law, and politics had to be clarified. While these universes of discourse may overlap, they are by no means identical. In terms of justification, post-traditional ideas about law and morality are structurally similar. At the heart of modern legal systems are basic moral norms that have attained the force of law. On the other hand, law differs from morality, inter alia, in that the target group of a law -- those who are expected to comply with a legal norm -- are relieved of the burdens of justifying, applying, and implementing it. These chores are left to public bodies. Politics, too, has an intimate relation to morality and law. Basic political issues are moral issues. And exercising political power is tantamount to making legally binding decisions. Also, the legal system is for its part tied up with politics via the legislative process. As far as the field of public will-formation is concerned, the main thrust of politics is to pursue collective ends in an agreed-upon framework of rules rather than to redefine this framework of law and morality.
n24 See H. PEUKERT, SCIENCE, ACTION, AND FUNDAMENTAL THEOLOGY (1984); Lenhardt, Anamnestic Solidarity, 25 TELOS (1975).
n25 Horkheimer, Materialismus und Moral, in 2 ZEITSCHRIFT FUR SOZIALFORSCHUNG 175 (1933) (JOURNAL FOR SOCIAL RESEARCH), reprinted in 1 M. HORKHEIMER, KRITISCHE THEORIE 31 (1968) (CRITICAL THEORY).