Ratio Juris. Vol. 12 No.

4 December 1999 (44553)

A Short Reply
JRGEN HABERMAS

I. We have heard brilliant expositions of two widely diverging traditions in moral and legal philosophy, neither of which even touches the Kantian tradition (from which my own position emerges). One tradition reaches back from Popper to Hume, the other from Thomas to Plato. Such strong traditions (in the sense of MacIntyre; cf. MacIntyre 1981) form almost closed discourses. It is not easy to bridge the wide gaps between them. Therefore, I cannot really start a discussion but rather mention some of the difficulties I see inherent in each of those two approaches. (1) The empiricist tradition, as exemplified by the paper of Professor Weinberger, leads to a non-cognitivist position in moral and legal theory which reduces normative sentences to first-person sentences expressing either emotions, or just preferences and decisions. From this point of view we have to re-describe, and thereby, I would add, distort the intuitions from which we in fact act. Non-cognitivist theories do not provide a correct account of the basic facts of the moral phenomenology of everyday life. We do have arguments in moral and legal conflicts, and we mutually expect from each other to be able to provide reasons for or against a controversial course of action. We also assume that we can learn in the moral domain, depending on the specific enlargement (cf. Mead 1962) or decentering of social perspectives (cf. Piaget 1932). This applies to legal reasoning as well. Let me add two remarks. Empiricist approaches struggle in the first place with an adequate explanation of what it means to distinguish between the legitimacy or rational acceptability of legal norms and their enforceability or mere acceptance. Reasons for recognizing a norm as just or legitimate are different in type from prudential considerations that motivate actors to avoid the sanctions they would face in case of violation. Unless we adopt some cognitivist position that allows for properly normative reasons, I would furthermore not know how to defend the superiority of a constitutional state, with democratic
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procedures of legitimation, against any kind of authoritarian state, claiming some foundationalist or fundamentalist source of legitimacy. Otherwise we are stuck with a comparison in terms of an empirical analysis, e.g., sociological descriptions of different institutional features or psychological attitudes. A defence of my discourse approach would require a discussion of more basic issues. Professor Weinberger relies on a deductive model of justification and a semantic kind of analysis. But there is no privileged set of (either observational or a priori) propositions that would provide a solid base for deduction, a base foundation that is independent of a given context or language, and immune from competing interpretations. I share, instead, with Wittgenstein and pragmatism, a holistic model of justification that denies the availability of final or knock-down arguments. The holistic model can, however, escape relativist consequences only in view of the selectivity of a process of argumentation, the procedural features of which ground the presumption of the rational acceptability of outcomes. The communicative rationality embodied in rational discourse remains, however, inaccessible from a semanticist point of view which relegates all pragmatic features to empirical analysis. From a participants point of view, the practice of giving and taking reasons (cf. Brandom 1994) does produce a push and pull of a rational, not just of an empirical, kind. This is why only a pragmatic radicalization of a half-hearted linguistic turn will yield the right theory of argumentation. A further issue of controversy is the correspondence concept of truth, on which Weinbergers argument depends. I mention these issues in order to remind you of the gap dividing empiricist and non-empiricist approaches in the field of normative theory. (2) My disagreement with Professor Finnis conception touches on similarly deep issues. He seems to share the Platonist idea that some kind of contemplationor intellektuelle Anschauungis the telos of knowledge, while discursive reasoning provides a path leading to this end. The contemplation or intuitive grasp of goods or hypergoods (cf. Taylor 1989a, 1989b) is then what we are expected to achieve in ethical reasoning. Such an approach raises, first, the usual question for an epistemological justification of moral realismhow it might be possible for a knowing subject to grasp an independently existing order of moral values. It raises, secondly, the practical question of how to make this ontological assumption compatible with the fact of pluralism (cf. Rawls 1971) and the liberal demand of an equal right of everybody to pursue ones own conception of good. Finally, I would like to know whether moral insights depend on a privileged access to the truth and, if so, how this aristocratic epistemology would change a normative selfunderstanding of modernity that is best articulated in terms of egalitarian universalism. As to the particular issue of the moral admissibility of abortion, let me just mention that the language of killing the unborn begs the question. What
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is at issue is the question whether abortion means killing a person. Because controversial descriptions of the case at hand cannot be disentangled from the specific context and language of those comprehensive doctrines held by opposing parties, liberals like Rawls, Dworkin and myself tend to propose to step one up in the level of abstraction and to look for a solution that fits a prior rightnamely, the equal right of every citizen (or member of whatever ethnic, religious or intellectual community) to develop, maintain and pursue a thick conception of a good life of her own. II. The discussion between Robert Alexy and me is in a way an attempt to clean up our own house. I am still not quite clear about the role of what Alexy calls general practical discourse. Here, different types of argumentprudential, ethical, moral, legal argumentsare supposed to come in one package. I have the suspicion that this conception is not sufficiently sensitive for the desired separation of powers. Once the judge is allowed to move in the unrestrained space of reasons that such a general practical discourse offers, a red line that marks the division of powers between courts and legislation becomes blurred. In view of the application of a particular statute, the legal discourse of the judge should be confined to the set of reasons that legislators either in fact put forward or at least could have mobilized for the parliamentary justification of that norm. The judge, and the judiciary in general, would otherwise gain or appropriate a problematic independence from those bodies and procedures that provide the only guarantee for democratic legitimacy. As for the problems raised by Massimo La Torre, the problem he is addressing disappears as soon as one avoids a cognitivist position that implies moral realism in one or the other version. Rawls theory is an example of a constructivist conception of moral cognitivism. I share the basic idea but pursue a slightly different strategy. I try to develop the system of rights from the historical model of constitution-making through an analysis of the constitutive features of such a practice. The performative meaning of the act of constitution-making is to find a solution for one problem: While sharing the intention to regulate their common life legitimately with the means of positive law, which basic subjective rights should the participants in such an enterprise mutually attribute to each other? The cognitivist assumption is introduced in terms of the discourse principle which is supposed to meet the condition of legitimacy, while constructivism is introduced with the process conception of a common legislative practice that requires a specific legal code as the medium through which its rational infrastructure must be implemented. The only normative idea which is constitutive for this process of constructing a legitimate legal order is an intersubjectivist version of autonomy (in
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the sense of Kant and Rousseau). This idea can be traced back to fundamental relations of mutual recognition built into any kind of communicative action and interaction. Everybody acquires his or her basic moral intuition by growing up in a family regulated by communicative actions (only if the communication is not systematically distorted). We look at each other in reciprocal ways, face each other as vulnerable beings, learn how to treat each other on equal grounds, to acknowledge each other as deserving mutual respect and being in need of mutual help. This kind of elementary normativity is rooted in the communicative infrastructure of all forms of sociocultural life. I do not mind if you call this a kind of natural law, neither am I nervous about a naturalist fallacy, if we commit the fallacy in the right waynot as observers, looking outside into the world for states and events, but as participants in discourse, reflecting on the set of unavoidable presuppositions of our performance. When speakers try to come to an understanding with each other about something in the world, pragmatic features of reciprocity and mutuality can be read off from the performance of speech acts and their communicative roles or perspectives. But this moral substance is of a formal or procedural nature. I would like to stress several distinctions: (1) The form of communication that qualifies rational discourse in general can be analyzed in terms of necessary pragmatic presuppositions (publicity and inclusion, equal communication rights, truthfulness and absence of compulsory constraints from within and outside the actual setting). These formal pragmatic features are constitutive for a practice of argumentation that is designed for the cooperative search for truth. They differ from (2) specific patterns of argumentation that characterize various types of discourse (pragmatic, ethical, moral, legal discourse, etc.) as well as from (3) various patterns of institutionalization that grant certain people at certain times and places the normative expectation that they can take up and pursue certain issues by means of rational discourse. Forms of institutionalization depend on (4) the type of problems to be solved or the matter in need of regulation: An academic conference or a seminar discussion differs from a legal discourse, while legal discourses assume different forms depending on the context (of a court-procedure, a talk between lawyer and client, a discussion among legal scholars, etc.). We may finally (5) distinguish formal from an informal institutionalization, depending on whether a discourse is institutionalized through legal means. Thus modern legal systems contain a special code for the regulation of court procedures, which reflects both the logic of a discourse of application and the distribution of typical roles among participants (judges and jury, attorneys and defendants, etc.). In institutions other than the court, e.g., in legislative bodies, there is no distinct place for an impartial judge. The purpose of legislation requires the predominance of the logic of a discourse of justification, where we have only participants of equal standing.
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Concerning La Torres objections, let me now briefly answer in the sequence of those questions. ad 1): Contemplation vs. debate. Throughout the history of Western philosophy we observe a competition between two ideals of knowledge. Starting with Plato, one side tends to privilege contemplation, a kind of intellectual intuition for the immediate grasping of ideas; starting with Aristotle, the other side gives primacy to the discursive chain of reasoning, the flow of arguments, the logical connection between propositions, etc. These people justify their position in terms of powerful criticisms of one or the other version of the myth of the given. To cut a long story short: I do think that Aristotle, Thomas, Hegel, Peirce, and Pragmatism in general, got it right. By no means, however, do these deny the reflective nature of thinkingquite the contrary. They only maintain that reflection derives from an internalization of dialogue. This conception of the discursive nature of knowledge also provides an account of its fallible nature. ad 2): Language without persons? This is not an implication of the linguistic turn against mentalism. Both Hegel and Humboldt have developed a conceptual frame for an intersubjectivist notion of the person, who is at the same time conceived as member of a community and irreplaceable individual. In my own words, speaking and acting subjects are socialized in, and share, the life-world which is in turn reproduced through their communicative practices. ad 3): Morality vs. ethical life. The language of goods and the language of rights are supposed to capture quite different intuitions. You can speak about goods only by referring to something which is evaluated from the particular perspective of some individual or collective actor, while moral judgements require an impartial evaluation of what is equally good for everybody. Even if you include universal goods, or hypergoods, which are presumably acceptable for everybody, there is a first person singular or plural reference built into the language game of evaluating goods. Moral norms, on the other hand, can be justified only from an impartial point of viewa viewpoint embodied in the We-perspective of the community of those who join in a cooperative competition for what is rationally acceptable to everybody. ad 4): The fact of pluralism. This is a fact in all secularized societies. Those sets of values that are the most relevant ones for personal or collective identities cannot reasonably find the equal recognition of all citizens. This is why we have to separate particular conceptions of the good, forming inherent parts of competing world-views, from moral conceptions of justice that are expected to be equally shared by everybody. Such moral notions can be defended in the light of public reasons on the presumption that they are acceptable for everyone. The conditions for entering a rational discourse require participants to assume an undogmatic attitude, to treat all relevant norms and traditions hypothetically, to be open to objections, to be honest and to yield to the
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forceless force of the better argument, to learn from others and to view from their perspectives. The requirements of mutual perspective-taking are usually inconspicuous in empirical or theoretical discourse; but in practical discourse, your own feelings and interests, your existential needs and questions of identity come in. Kant was still a philosopher of the 18th century. But as soon as the new historical consciousness made us aware of the world-disclosing function of different languages and world-views, we realized the painful task of narrowing distances between different cultures, languages and forms of life. But again, the practice of argumentation puts all the burdens of openmindedness upon the shoulders of the participants: Wherever they fail to meet the demanding conditions of rational discourse, we dont have any rational discourse. III. Let me now respond to Danilo Zolos paper, to this postmodern version of a Carl-Schmittian type of neo-realism, in three steps. I will first refer to the change in international relations since World War I and raise some objections to the neo-realist picture. I will secondly propose a three-layered scenario for a future Weltinnenpolitik or global domestic politics. I will finish with a remark on the intercultural discourse on human rights. ad 1): Neo-realism. Classical international law or Vlkerrecht is designed for a system of independent nation states that enjoy the right to go to war (ius ad bellum). They are at the same time supposed to act according to their raison dtat, that is: to follow more or less rationally the brute imperatives of sheer collective self-maintenance. As a consequence of the growing interdependence of global society and transnational economy, this Westphalian system has in fact changed and still keeps rapidly changing. There is an obvious cumulation of those problems, that even powerful states can no longer cope with in a single-handed manner (international security and peace-keeping, large scale ecological threats, wide-ranging technological risks, proliferation of war technology, organized crime such as transnational trade with weapons, drugs, etc.). Besides the UN, sometimes under its umbrella, there has emerged a dense and fast-growing network of international organizations, conferences and arrangements. We face in the meantime supranational entities of a new type, global regimes and procedures, even non-governmental organisations operating across national borders. The traditional line between foreign and domestic economic policies, in particular, has been blurred, while both the autonomy and sovereignty of formerly independent nation states have become increasingly undermined. Not that the neo-realist doctrine would totally ignore this obvious shift in the pattern of international relations. But it does not describe it as a shift in paradigm. By virtue of a rather pessimistic image of man and a surprisingly opaque notion of politics, the proponents of this approach underestimate the
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degree and relevance of the change. They misinterpret the transition from an international to the postnational constellation as a move towards a dubious kind of universalism. Abstract regulations seem to be imposed on the vital interests of nation-states, thus distorting the natural mechanism of their particularist competition. In fact, however, it is the other way round. Humanitarian and military interventions by the UN or by regional regimes respond to a decay in the authority of conflict-ridden nation states that are close to falling apart and therefore compensate their weakness by repression, identity politics and expansionist adventures. The trend towards a substitution of the law of the peoples by a new cosmopolitan law mirrors a significant moral lesson from the crimes against peace and humanity that overshadow the twentieth century. With the atrocities of total warfare, ethnic cleansing and genocide, with the unforeseen event of the Holocaust, the nation state has definitively lost the innocence that the architects of international law and non-intervention had attributed to its subjects, the sovereign powers. ad 2): A scenario for global domestic politics. In these circumstances it is much more realistic to strengthen the weak institutions of the world community and to pursue human rights policies, pushing for a further and more effective institutionalization of a cosmopolitan law that allows for interventions in the inner affairs of the nation state, protects nationals against human rights violations by their own government and persecutes functionaries who commit crimes in the service of their office or in the course of their business. The institutionalization of cosmopolitan law does not require the establishment of a world government based on a monopoly of the means of legitimate violence held by a global state. On a global scale I would instead envisage a multi-level political system with a thoroughly reformed world organization at the top level, domesticated nation states on the bottom level and a horizontal network of transnational regimes in between. The legal competences and political powers of the United Nations should be extended and become more effective, but only within strictly limited functionnamely, in the fields of peace-keeping, human rights politics and protection against global ecological, technological and criminal risks. More important for a future politics of global internal affairs, pertaining to economic and social policies as well, is the middle level of new institutional arrangements for the world-wide coordination of national policies. Agreements must be reached between, and implemented by, transnational regimes (of global player of the format and weight of, e.g., the European Union). This kind of global arrangements depends on bargaining processes in the looser framework of transnational regimes, of standing conferences, settled procedures, regular summits, etc. But the institutionalization of this most important part of world politics can only work if governments on the national level are perceived, from within their national arenas, as cooperative members of a world community rather than
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independent actors. National governments can only afford a value-added pursuit of interests, once the inclusion of higher order value-orientations in their frame of reference is approved, even pushed by their voters. The valueorientations of the peoples themselves must also become more and more inclusive. Such an expansion of civic solidarity beyond national borders certainly depends on a fortunate constellation of several factorsamong them the pressure of transnational social movements. These movements might be motivated by the perception of imminent risks, the global range of which has already willy-nilly unified mankind from behind its back. ad 3): The intercultural discourse on human rights has given rise to several readings that differ, at least in some Asian and some Islamic countries, from prevailing Western interpretations. Western countries will learn from further discussions also more about the blind spots of their ownabout their distorted understanding and selective practice of human rights in the past and, maybe, at present. But I am equally convinced that the normative substance of those rights which emerged in the West will withstand the usual accusation that it is merely a reflection of Western traditions. There is a simple reason why human rights, which have been universally accepted in the wording of the UN-Declaration and further resolutions of the General Assembly, will eventually find universal recognition also in their substance. They express a more or less compelling response to the very same problems that Europe has faced since the eighteenth century, and which other regions or cultures cannot escape facing today. As a consequence of secularization, the pluralism of world views requires religious tolerance and a separation of the state from religious backgrounds. Furthermore, as a consequence of the globalization of capitalism, the typical decentralization of private decision and the regular increase in social and economic disparities require the individualism of a modern legal structure that is both based on and tamed by civic liberties and welfare-rights. Johann-Wolfgang-Goethe University Faculty of Philosophy Dantestrasse 4-6 D-6000 Frankfurt am Main 11 Germany References
Brandom, R. 1994. Making It Explicit: Reasoning, Representing, and Discursive Commitment. Cambridge, MA: Harvard University Press. MacIntyre, A. C. 1981. After Virtue: A Study in Moral Theory. Notre Dame, IN: University of Notre Dame Press. Mead, G. H. 1962. Mind, Self, and Society: From the Standpoint of a Social Behaviorist. Ed. Ch. W. Morris. Chicago, IL: University of Chicago Press. Piaget, J. 1932. The Moral Judgment of the Child. Trans. M. Gabain. Glencoe, IL: Free Press.
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Rawls, J. 1971. A Theory of Justice. Cambridge, MA: Belknap. Taylor, Ch. 1989a. Cross-purposes: The Liberal-Communitarian Debate. In Liberalism and the Moral Life. Ed. N. Resenblum, 15982. Cambridge, MA: Harvard University Press. . 1989b. Sources of the Self: The Making of the Modern Identity. Cambridge, MA: Cambridge University Press.

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