Respect for Consent

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The Nature and Scope of Consent in Moral Theory

January 2003: www.freewebs.com/returncc

This paper intends to provide an analysis of the principle of universalization as used in the moral theory of

Immanuel Kant and Jurgen Habermas to justify moral norms and principles. The general idea is to examine the

theoretical features of moral justification in order to argue in favour of recognizing respect for the informed

consent of individuals as a logical property of moral reasoning.

The thesis begins with a description of the core conceptual components of Kants conception of the principle of

universalization and Habermas transformation of that principle. The transformation of the principle reflects the

necessity of agreement, participation and consent in the construction of moral propositions. This paper attempts

to follow the transformation of Kants principle of universalization with a view toward attributing innovations,

pointing to contradictions, comparing descriptions, and mapping transformations between Kant and Habermas.

Kant constructs a moral point of view based on ideas of reciprocity and equality to determine a category of

moral principles that form a fictional realm of ends. The categorical imperative operates to justify principles on

grounds equally valid for everyone. Habermas criticizes Kants conception of validity and replaces it with a

discursive justification based on common interests and grounds equally acceptable to everyone. The transition

from a unilateral monological justification of moral principles to a dialogical consequential analysis introduces a

key element of moral reasoning that is respect for the participation and consent of all individuals, the inclusion

of the other.

Although Habermas uses the universalization principle for the purpose of justifying the content of discourse

ethics, the principle demonstrates reliance on notions of equal respect and respect for the consent of others.

The principle is characterized by the attempt to achieve universal consensus based on assumptions of common

interests and acceptable consequences for each participant. The principle of universalization sets out the

conditions of agreement necessary to achieve a consensus in a norm setting discourse and presupposes respect


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for the consent of others, to let people decide for themselves what agreements they intend to make binding

without coercion or deception.

The argument that consent is a logical property of moral reasoning is based on Habermas modification of Kants

construction of the categorical imperative into a principle that relies on agreement achieved through discourse.

This paper attempts to focus on the features of the principle of universalization and the limitations implicit in

Habermas reformulation. Respect for consent is viewed as a presupposition of Habermas moral reasoning as

well as being a logical consequence of such reasoning in the determination of moral norms or principles.

Although, I argue it is a presupposition and a consequence, its justification lies in recognition of a common

interest and an unavoidable feature of cooperative argumentation.

In the attempt to determine what principles of moral reasoning are acceptable to everyone, the principle of

respect for consent stands out as the operative principle in such a conception as well as a likely candidate for

acceptability based on common interests and acceptable consequences. I argue that an application of Habermas

moral justification suggests that what is acceptable to everyone is that we grant each other equal respect, a

general proposition that entails providing space for each individual to determine independently what moral

propositions they support or disparage. As the key feature of moral agreement such a conception deserves

recognition and a special place in moral reasoning because it serves as the bond between agreements that

establish all other moral propositions. Opposition to the general recognition of the moral principle to respect the

consent of others is considered to be an argument that opposes self-government, a position at odds with moral

reasoning.

Based on the reasoning that the operative principle underlying the use of the universalization principle is the

recognition of the need to achieve the agreement, assent, or consent of participants in the determination of

moral norms, it is a short leap to suggest that actual informed and uncoerced consent of each participant is the

key feature. The consequences of such a view suggest that public authority needs to address standards that are

capable of generating the actual informed and uncoerced consent of the most participants possible in order to

provide support for norms adopted in the regulation of society.


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Both Kant and Habermas attempt to justify claims of necessity for particular propositions, they claim such

propositions are binding on everyone. In the search for moral propositions acceptable to everyone the most

likely candidate for justification is a notion of equal respect based on a principle of informed consent. I suggest

that informed consent is a key feature of the principle of universalization and that it entails logical limitations on

propositions that rely on agreement for justification. Implicit in the recognition of respect for consent is a logical

limit on binding moral prescriptions, they are limited by the nature of the agreement relied on to justify the

moral proposition. Entailed in such a position is the claim that moral principles are only binding on those that

agree to adopt them for as long as such an agreement exists.

Introduction to Kant

In the works of Immanuel Kant, the will is said to bind itself to the dictates of reason because it recognizes the

foundations of morality in the universal form. (Everyone all the same). I will attempt to demonstrate that such a

proposition has been generally transformed in current moral thought to represent the process by which the will

agrees to act in accordance with reasons because it is persuadedby logic or at least the force of the better

argument to adopt moral norms based on reciprocity and equality. (The same to me as you, and everyone all

the same). Much of what Kant attempts to do within moral theory is to demonstrate the binding necessity of

laws of freedom that restrict moral action to principles universally valid for everyone. Habermas transformation

of Kants conception emphasizes the role of participation and consent in the construction and adoption of social

norms in practical discourse rather than practical reasoning. I argue that equal respect for the autonomous

decisions of others is the key feature of such a transformation which as a consequence entails letting informed

individuals choose for themselves what principles or actions they agree to adopt or not.

Kant intended his critical examination of practical reason to lay the foundation for the supreme principle of

morality in the form of the categorical imperative.1 The ground of obligation represented in his moral law was to

1 Kant, Immanuel. Foundations of the Metaphysics of Morals. Ed. Robert Paul Wolff. Trans. Lewis White Beck

(Macmillan Publishing Co.) 1969 pp.3-9.


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be constructed solely from a priori concepts free from empirical explanations connected to the phenomenal

world of sense/appearance.2 For Kant, the determination of the will as commanded by duty has its origin in the

use of practical reason inseparably connected to the concept of a free will. Within a pure practical philosophy, as

opposed to an applied practical philosophy, he asserts the possibility of a pure will separate from the actions and

conditions of human volition tied to empirical or sensual motives. Properly called a metaphysics of moralshis

investigations were based on assumptions relating to the faculty of reason which dictated objective moral laws

existing within an intelligible order of things purged of empirical objects or sensuous motivations.

The faculty of reason

One of Kants contributions to philosophy was the suggestion that reason was a psychological process rather

than a transcendental object. In the Critique of Pure Reason, Kant constructs an idea of reason linked to the

formation and use of principles within the faculty of understanding. In the language of Kant, the faculty of

understanding is used to produce a unity among phenomena according to rules of perception. The faculty of

reason is used to produce a unity among the rules of understanding according to principles. The domain of the

faculty of reason then, is composed of knowledge of principles.3 Principles are general propositions that

prescribe a course of action for particular situations and such prescriptions are sometimes considered to create

corresponding duties. Such reasoning lays the foundation for the claim that our actions may be based on,

conform with, or breach moral principles or duties derived from the faculty of reason.

Kant makes a distinction between practical and theoretical reason to demonstrate categories of reason that

operate in human cognition. Practical reason is concerned with our conduct or actions, including moral conduct,

while theoretical reason is concerned with objects of cognition.4Theoretical cognitions express what is, referring

to the world of appearance, while practical cognitions express what ought to be, they aim to bring an object of

our thought into being though a particular action. Practical cognitions contain principles or imperatives that have

2 Ibid,p.81.

3 Kant, Immanuel. Critique of Pure Reason. Trans. F. Max Muller (Anchor Books, NY) 1966. pp.225-226.

4 Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. p.15.


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fundamental laws not determined by an object of the senses), and act on the basis of pure reason conforming

to the necessary recognition of the universal form of law.

nothing can secure us against the complete abandonment of our ideas of duty and

preserve in us a well-founded respect for its law except the clear conviction that,

even if there never were actions springing from such pure sources, our concern is

not whether this or that was done but that reason of itself and independently of

all appearances commands what ought to be done. Our concern is with actions of

which perhaps the world has never had an example, with actions whose feasibility

might be seriously doubted by those who base everything on experience, and yet with

actions inexorably commanded by reason.8

Kants moral theory is focused on the determining causes of the will. He claims that morality and the categorical

imperative follow by logical necessity once freedom of the will is assumed.9 His moral theory is based on a

particular construction of autonomy where the will is purged of material incentives. Kant views the will as a form

of causality which when aligned with the use of reason is capable of determining itself free from foreign or

external causes.10 The self-legislation of moral commands purged of material incentives is therefore the basis of

all moral laws and necessary duties.11 If the law is not self-legislated then it implies some other interest or

compulsion to obedience rather than a will acting free from the determining causes of the world of sense.

Kant insists that the fundamental principles of morality must originate entirely a priorifrom the use of reason


(Macmillan Publishing Co.) 1969. p.28.

9Ibid.p.74.

10Ibid.p.73.

11 Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. p.33.


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and not spring from the inclinations of men. Kant suggests that if there are objective categorical commands they

are based on grounds that are universal and valid for every rational being. Although people are bound to act

only in accordance with their own will, subject to their own legislation, he claims that the will has been designed

by nature to use reason and legislate universal laws. If an agent acts in accordance with pure reason they

legislate in the universal form because they recognized and respect the ultimate moral law contained in the

categorical imperative. So even though the will is self-legislated, if it is to act morally it must recognize the moral

law and respect it as a law.12

Conditional and unconditional motives

Kant claims that the categorical imperative involves the renunciation of all interests. Kant defined an interest as

the practical motivation of reason, as a cause determining the will. He distinguished between a will that is

interested in action based on principles of reason, and a will that acts from interest directed toward

inclinations.13 He wants to distinguish between motivations based on material incentives and motivations purged

of such considerations. It is by rejecting conditional interests and motives that Kant forms his idea of an

unconditioned pure will. It is important for Kant to derive the moral law from pure reason unmixed with

empirical inducements in order to distinguish between conditional motives based on material incentives or

personal feelings and unconditional motives rooted in recognition of abstract principles intended to bind the will

of every rational being.14

Whatever is derived from the particular natural situation of man as such, or from

certain feelings and propensities, or even from a particular tendency of human

reason which might not hold necessarily for the will of every rational being (if

such a tendency is possible), can give a maxim valid for us but not a law; that is,

it can give a subjective principle by which we might act only if we have the


(Macmillan Publishing Co.) 1969. see. pp.50, 58.

13 Ibid. see pp. 35 F.N.#3., 57, 90, F.N.#4.

14 Ibid. p.33.


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propensity and inclination, but not an objective principle by which we would be

directed to act even if all our propensity, inclination, and natural tendency were

opposed to it.15

Kant believes that any volition dependent on the faculty of desire could be explained by reference to the

empirical conditions for its satisfaction or motivation and therefore could not be the foundation for a necessary

and universal rule. He claims that practical rules that rest on subjectiveconditions are incapable of deriving

universal rules for rational beings and without exception, according to Kant, they revolve around the principle of

ones own happiness.16 Kant is opposed to philosophers who would claim that the highest duty is self-love. He is

careful to make clear that his conception of duty is not derived from empirical sources and rejects claims based

on conditional interests because they cannot be universalized.

The happiness of others, for example, might be an object of the will, but if it were to be the determining ground

of a maxim it would presuppose a natural sympathy or disposition grounded in personal satisfaction which would

be a conditional interest. Kant is unwilling to accept this conditional connection as the determining ground of a

maxim because it would not coincide with his goal of legislating unconditional universal law. Instead, Kant

derives the acceptance of the principle to further the happiness of others from the universalization of the maxim

of self-love. Kant argues that the universal application of the maxim of self-love requires recognition of the

happiness of others. In such a case, the determining ground of the will is the general form of the law and not its

content, it is therefore acceptable on grounds that are equally valid for everyone.17 On this basis Kant claims it is

not the happiness of others, or any particular subjective condition, but the universal form of the maxim (the

happiness of everyone), that is to the determining ground of the will.

Objective principles that constrain the will operate as commandsin the form of imperatives.18 These imperatives

are expressed by ought statements which inform our will to act or refrain from action, although our will may

15 Ibid. p.49.

16 Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. p.34-35.

17 Ibid. p.35.

18 Ibid.p.34.


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not always be inclined to obey just because we know an act to be universally good. For Kant, the more

inclinations there are against performing a duty and the fewer inclinations there are in favour of its performance,

the greater the opportunity to show the intrinsic worth of the commanded action through obedience to reason.

Kant explains the difference between hypothetical and categorical imperatives to sharpen the distinction.

Hypothetical imperatives express the practical necessity of action as a means to achieve some other desired

end, while the categorical imperative is seen as objectively necessary without regard to any other end or

purpose.19 Hypothetical commands are used as a means to another end, represented by principles of skill or

prudence, unlike the categorical imperative which is good in itself rather than good as a means to some other

purpose, possible or actual.

The distinction is explainable as a difference between subjective and objective ends. Any practical principle that

presupposes a tangible object or self-interested motivation as the determining cause of the will under the faculty

of desire is deemed to be a subjective end, while any practical principle in the form of a rule that necessarily

holds for all rational beings is considered objective. Subjective ends possess only conditional worth in relation to

the desire or material incentive that grounds them. Kant believes that a rational being would want to be free of

conditional and transitory ends because they lack absolute worth, a quality possessed by objective ends. 20

Objective ends are only those ends that determine the will of itself by the mere form of the universal rule

grounded in motives valid for every rational being.21 Kant argues that the universal form of the imperative binds

the will through the use of reason insofar as an agent is rational and submits to universal moral laws.

Realm of ends

A rational being who self-legislates duties and obeys universal laws, subject to no will other than his own,

19 Ibid. p.36.

20 Ibid. seepp.24, 52-53.

21 Ibid. p.52 and Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey)

1993. p.19.


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belongs to an imaginary community of rational beings sharing the same standard of judgment, which Kant calls

a realm of ends. The realm of ends is merely possible by analogy with a realm of nature, which is demonstrative

in the absolute laws of physical necessity. Kant proposes to use a realm of nature as a practical idea for

bringing about that which is not actually real but which can become real through our conduct.22 He is careful to

distinguish this idea from a teleological position which claims that a realm of nature is a theoretical idea for what

is real, i.e. the kingdom of god. Each person who binds their will to reason is said to belong to a potential or

fictional realm of endsinsofar as they have subordinated their will to a universal objective perspective.23

According to Kant, if there is to be a supreme practical principle and a categorical imperative for the will it must

be in the form of an objective principle that is necessarily an end for everyone because it is and end-in-itself.

Only an objective principle can be a universal practical law. Because every rational agent thinks of their own

existence as an end-in-itself and not merely as a means to be arbitrarily used by another person, Kant proposes

that it may serve as the ground of an objective principle which is capable of deriving all laws of the pure will.

Kant grounds this principle in the following form : rational nature exists as an end-in-itself. The law takes the

form of the following imperative : Act so that you treat humanity, whether in your own person or in that of

another, always as an end and never as a means only.24

Kant proposes this principle as the supreme limiting condition on freedom of action for each person. In other

words, beings who are ends in themselves are to be objects of respect and our actions toward these objective

ends are to be limited by our respect. If agents want to consider themselves as rational they must share in the

kingdom of ends and treat each other as rational beings who recognize the existence of rational agency as an

end-in-itself.25 In this manner Kant suggests that rational beings are not to be acted upon as if they are

subjective ends of another person because they recognize and respect actions that are objectively necessary.


(Macmillan Publishing Co.) 1969. p.62 FN#17.

23 Ibid. see pp.59, 62 F.N.#17, 65-66.

24 Ibid. see pp.52-54.

25 Ibid. p.55.


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Therefore, all maxims of action should consider the self and others as rational ends in themselves and should

meet the condition of being universally valid for every rational being.26 To treat rational nature as an end-in-itself

is to respect the idea of the dignity of humanity, as dictated by reason, separated from material advantage of

the legislator. A rational agent is viewed by others as possessing moral worth to the degree that such an idea

serves as the absolute and inflexible guide for the agents will.27

Categorical imperative

if I think of a categorical imperative, I know immediately what it contains. For

since the imperative contains besides the law only the necessity that the maxim

should accord with this law, while the law contains no condition to which it is

restricted, there is nothing remaining in it except the universality of law as such

to which the maxim of the action should conform; and in effect this conformity

alone is represented as necessary by the imperative.28

The categorical imperative is grounded in the difference between subjective maxims derived in reference to

material conditions and the idea of conformity to an objective law. According to Kant the categorical imperative

excludes reference to the material of the action and its intended result in an unconditional manner. It is a law

concerned with the form and the principle of autonomy purged of sensuous conditions. The categorical

imperative to act only according to that maxim by which you can at the same time will that it should become a

universal law is seen as an objective unconditional law that is an end-in-itself. In general it is a formula for an

impartial perspective used to guide our will in the exercise of rational autonomy. The resulting practical

legislation is grounded in the use of the rule (law) and the form of universality. 29 The test of a maxim is to

consider whether it could enter into a possible universal legislation without contradiction. In this way a person

considering the acceptability of a course of action would look at the implications of everyone acting under such a

26 Ibid. p.64.

27 Ibid. p.65.

28 Ibid. p.44.

29 Ibid. p.55.


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principle and determine whether they would find such a rule of conduct acceptable and free of logical

contradictions.

Kant makes the assumption that laws of nature and laws of morals are analogous insofar as they share a

universal aspect in the general form and the principle of non-contradiction. He claims that the universality of law

can be properly called the general form of nature. Relying on that analogy, Kant reconstructs the imperative as

follows: Act as though the maxim of your action were by your will to become a universal law of nature.30 In

order to will that a maxim should become a universal law of nature, both the maxim and the will must remain

free from contradiction. Potential universal laws of action are to be tested by agents for any contradictions

because a universal law may not, by definition, conflict with itself. In other words, agents test actions and

maxims relying on the universal form eliminating candidates on the basis of contradiction in order to create a set

of duties which conform to the supreme principle.31 The categorical imperative acts as a fundamental axiom of

morality from which other universal principles may be derived on a logical basis through a systematic application

of the general rule.

From Kant to Habermas

Kants categorical imperative is a method of determining moral principles capable of guiding action. The

categorical imperative rules out maxims of action that are based on material interests, in favour of accepting

unconditional rules of action that are equally valid for every person. The categorical imperative is rooted in the

idea that equal and reciprocal rules may serve as a guide toward the construction of a realm of ends consisting

of acceptable moral principles justified on the basis of grounds equally valid for everyone.

Kant takes the position that universal laws must be capable of being held as if they were laws of nature. The

use of the as if indicates a willingness to imagine a realm of ends where every rational agent accepts, or is

subject to, the same rules of moral action. There is no role for agreement between people or consent in Kants

30 Ibid. p.45.

31 Ibid. see p.48, 63.


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theory because he assumes that reasoning by way of the categorical imperative will always end in the same

result regardless of the context. Kant argues that reason itself prescribes the content of this imaginary kingdom

of ends constructed from the recognition of universal laws that hold necessarily and always. However, faith is

required to support the claim for the existence of objective laws that reason always points without error to the

same as if laws in each and every case. Such a conception does not give enough consideration to different

points of view that may result from independent consideration of moral principles from diverse perspectives.

There is no guarantee that independent consideration of the maxims equally valid for everyone will disclose

objective laws in each and every case.

Kant asserts that we must be able to will that a maxim of our action become a universal law and that such a law

hold without contradiction. The construction of such a rule is subject to criticism that it carries the potential for

paternalistic perspectives rooted in nothing more than an act of the imagination. It is likely that different groups

will accept or reject different principles they consider to satisfy this condition. Debate and argumentation over

which principles to accept and why would likely result. Disagreements could be rooted in consequential

disadvantages that may be seen to result from the uniform application of rules, different groups may experience

different and unequal outcomes. In practice, the determination of moral principles under the categorical

imperative would likely lead to conflicting judgments.

Kant proposes that we act as if objective laws existed. However, there is a problem with proposing binding

objective rules on the basis of asking people to act as if they were laws of nature. The appeal to act as if

undermines the establishment of objective laws because these laws are contingent for their very existence on

the assent of individuals. Although Kant attempts to circumvent the need for consent by relying on a

theoretically infallible reason that binds the will, the use of the as if formulation demonstrates the contingent

nature of moral principles that in effect must rely on the agreement of individuals for their very existence or

appearance in the world. The idea of objective laws based may be infallibly determined by an appeal to the

imagination must give way to the idea that moral principles are created through the social phenomena of

agreement rooted in the consent of individuals giving the law itself no objective grounding other than the

agreement to obey it.


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The main impact of such a perspective on Kants moral theory is to transform the idea of objective laws equally

valid for everyone into a discourse related to principles and their justification. Such a transition points to the

need to communicate with others in the determination of valid grounds and the need to actually consult others

to learn from them what grounds they find valid as a basis for moral theory. Such a position is the starting point

for the moral theory of Jurgen Habermas. The conditions of communication set the framework for a process that

discourages a unilateral application of the principle of universalization and centres on a theory of argumentation

in public debate. Application of a modified principle of universalization is used in public argumentation to

determine equal and reciprocal moral principles based on common interests. Under such a revision what

becomes apparent is that moral principles, including the categorical imperative are not objective entities existing

as laws of nature but rather they are arguments in favour of agreements that aim to achieve cooperation and

equal consideration for all people.

It is the intention of this paper to follow the reasoning of Habermas as he transforms Kants categorical

imperative from an objective law into a notion of universal agreement or assent. The search for grounds equally

valid for everyone becomes a search for common interests shared by everyone. It is on this basis that Habermas

constructs his theory of discourse ethics. Toward this end, I shall undertake an analysis of Habermas conception

of validity in relation to moral principles and claims of necessity that arise under cooperative discourse

conditions. The main object of this paper is to examine the role of consent in moral theory and to suggest that

there are no binding moral obligations except those that we agree to adopt through the informed consent of

participants. The analysis will hopefully demonstrate that what is conceived of as necessary in Kant and

Habermas is actually an operation of individual consent. Even though I suggest that Habermas theory fails to

ground objectively binding moral obligations it does not clear the path for the moral skeptics to claim the non-

existence of core moral norms in favour of ego-centric preferences and inescapable claims of relativism. What

Habermas does succeed in establishing is that some reasons for ethical behaviour are better than others based

on an appeal to common interests and a procedure for evaluating the acceptability of consequences from the

perspective of each participant engaged in an inclusive dialogue.


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Cognitive Perspective

Kants focus on deriving moral principles from the dictates of reason is shifted by Habermas to an exposition of

the cognitive content of moral utterances in the context of communicative action. Habermas study of moral

consciousness takes the form of an analysis of moral discourse. The goal of discourse analysis is to consider

what kind of argument or reasoning is acceptable to support moral decisions. Habermas claims that the study of

a moral vocabulary and the need for rational justification points toward a theory of argumentation that must be

rooted in the everyday level of communication. He proposes that moral phenomena are to be grasped in the first

person performative attitudes of participants in the communicative practices. He grounds moral consciousness in

the fact that moral feelings are apparent in everyday life accessible to us as first person performative attitudes

involved in, for example, the condemnation of a wrong or a violation of underlying normative expectations held

by individuals and members of social groups.

His theory relies on the idea of moral norms that operate to replace the focus on principles. A moral norm or

customary practice is the result of expectations or obligations established between people. Normative rightness

is connected to moral discourse insofar as rational agents attempt to persuade each other to adopt this or that

moral norm. Moral norms carry obligations in the form of being consistent and the accompanying feeling of

being obligated. According to Habermas, norms inform generalized behavioural expectations conforming to rule

governed interaction that impose equal and exceptionless obligations on the group. 32 They exist insofar as they

are established within interpersonal relationships and they are supported by reasons that serve to justify the

moral principle or norm.

Habermas depicts normative rightness as a function of intersubjectively binding agreements based on reasons

rooted in the psychological and emotional dispositions of moral feelings. Within the framework of linguistic

analysis, Habermas claims that feelings relate to the moral justification of actions in normative statements in an

32 Habermas, J. The Inclusion of the Other. Frankfurt (1996). p.55.


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analogous fashion that sense perceptions relate to the justification of facts in descriptive sentences.33 He

distinguishes between descriptive statements and normative statements that operate as analogous but distinct

forms of validity.

Habermas theory of communicative action is based on the observation that participants in argumentation

coordinate their plans of action consensually and evaluate them on the basis of intersubjectively recognized

validity claims. Communicative action for Habermas is when one participant seeks to rationally motivate another

by relying on the bonding effect of an offer of normative validity within a speech act. Obligations arise in regular

conversation by agreement based on pragmatic situation-specific definitions so long as the agreed actions do

not contradict other propositions the actors accept as true at any given point.34

Underlying the shift in focus from the philosophy of consciousness to the philosophy of language in Habermas is

a rejection of the idea of an ultimate justification of a transcendental truth derived from the faculty of reason in

favour of recognition of fallible claims of normative validity and unavoidable pragmatic presupposition of

language use within a shared social context of discourse formations. The external fact of pure reason used by

Kant to justify universal ought statements is rejected by Habermas in favour of a context that highlights the

actual need for argumentation over norms and principles of action within a public discourse. Discourse ethics

relies on public and open argumentation as a necessary condition for the application and justification of

normative statements. It requires more than ruling out maxims of action that contradict the categorical

imperative, it replaces the categorical imperative by a procedure of actual public moral argumentation supported

by reasoned justification.

Justification of Norms

In the tradition of Immanuel Kant and other cognitive philosophers, Habermas investigates in what sense and in

33 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.50.

34 Ibid. see. pp. 58, 59.


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what way moral commands and norms are justified.35 The position of cognitive ethics assumes that certain

actions and norms are capable of reasoned justification in practical discourse through the use of rationality and

the giving of persuasive reasons. For Habermas, the justification of action in terms of valid norms and the

justification of norms in terms of principles worthy of recognition is a process of clarification and communication

that serves to bind the will through the construction of conviction around public reasons.

Modern value skepticism rejects the idea that moral issues can be settled on the basis of intersubjectively

binding reasons.36 They argue that normative statements cannot be justified like descriptive statements as true

or false. On this basis they claim that there is no moral order, moral objects or moral facts.37 By limiting reason

to a form of instrumental rationality, value skeptics base ethical conceptions on the prior acceptance of a goal

followed by a means-end analysis on how to attain the desired outcome. Habermas is motivated to overcome

value skepticism and arguments that suggest morals and norms are based on nothing more than purely

subjective and relative emotional dispositions and attitudes, explainable as preference-based empirical

phenomena. Habermas attempts to construct an alternative basis for the validity of moral norms to overcome

skeptical claims that moral judgments are motivated by rational self-interest or the satisfaction of feelings

justified in a purposive-rational manner.

Habermas, like Kant, is trying to explain the obligatory character of moral duties motivated by rational force

alone. He claims that classical empiricism cannot explain the obligatory force of moral norms in terms of self-

interested preferences just as they cannot explain the fact that actors motivated by moral feelings argue about

moral judgments with reasons. In other words, Habermas proposes to ground the binding character of moral

duties in the recognition that moral feelings express attitudes that imply moral judgmentscontaining cognitive

content.38 In such a fashion he argues against a limited conception of practical reason that restricts it to

operations of instrumental reason in favour of a notion of practical reflection that accepts epistemic reasons

35 Ibid. p.57.

36 Ibid. p.182.

37 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.36.

38 Ibid. p.16.


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within an intersubjective shared social world.39

Habermas asserts that to limit ethical reasoning to the preference based motives of a rational chooser opens

such a position to criticisms of moral relativity and undermines the obligatory nature of moral expectations.

Habermas rejects social contract theory because it is not able to disclose any kind of morally privileged position,

he claims, an agreement among contracting partners motivated by interests can lead at best to an externally

imposed social regulation of conduct, but not to a binding, let alone universalistic, conception of the common

good.40 Agreements between interested parties cannot by themselves ground binding obligations because a

self-interested person could choose to exit from existing agreements whenever they might benefit from such

deviance. For Habermas only reflections on the conditions of communicative agreement, after religion and

metaphysics, can ground the justification of a morality of equal respect and solidarisitc responsibility for

everyone.41

The moral point of view

Habermas begins his search for universal moral principles that may ground a morality of equal respect and

solidaristic responsibility for everyone in the investigation of everyday ethical insights as they relate to the

spontaneous workings of practical reason. He links the normative validity of moral commands and norms of

action to a shared social world that forms a universe of norms.42 The moral validity of a norm is reflected in the

feeling of being obligated and the affective attitudes, such as resentment, that accompany noted transgressions

of established norms within a specific community.43 These norms must be continually reestablished within

legitimately ordered interpersonal relationships in order to exist. They are produced and maintained in society

through individual conviction and institutionalized sanctions. However, to identify the existence of a norm as a

39 Ibid. p.25.

40 Ibid. p.23.

41 Ibid. see pp.15, 23.




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social fact says nothing about whether the norm is worthy of recognition. The expectation that a claim to

normative rightness can be redeemed and discursively justified with reasons is not the result of the mass

acceptance of a norm, but rather a product of the logic of practical discourse.44

Morality is depicted by Habermas as an aspect of public discourse that has emerged from a preexisting

unquestioned background of particular value configurations belonging to collective and individual modes of life.

Principled morality emerges from this established lifeworld as a form of abstract reflexivity that includes the

demand to justify itself in public argumentation. For Habermas, the moral point of view develops when an agent

in the social world adopts the hypothetical attitude of a participant in argumentation split off from the ethical

lifeworld leading to a context-independent moral standard of impartial judgment. Within such a framework moral

development is a process of recognizing the generalizable interests that all participants in discourse share in

common.

The ethical point of view sets the frame for value judgments and evaluative self-understandings of identity

developed within the context of a morally constituted community. First person singular perspectives and first

person plural perspectives generate questions relating to how we understand ourselves as part of a community,

how we should orient our lives, or what is best for me (or us) in the long run all things considered. Individuals

who find themselves within a particular intersubjective shared social life generally accept a shared ethos that

has been proved in practice.45 Habermas claims that attempts at norm justification within a shared ethos

inevitably lead to abstract and general principles that require more than a first person perspective of an

individual acting on the basis of personal preferences. Following the development of moral intuitions set out by

Kohlbergs theory of moral development, Habermas claims that in the later stages of moral development, the

introduction of a reflective hypothetical attitude transforms the unquestioned, habitual, and particular ethical

evaluations into questionable social conventions that need principled justification. The procedure of norm-

justification discourse is a product of the inevitable moralization of a social world become problematic.46 What


45 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998.p.26.



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appears to be objectively rational or objectively desirable within an ethical lifeworld is subsequently viewed

from the hypothetical perspective as the intersubjective recognition of value dependent on the will and free

choice individuals.

For Habermas, practical deliberation is split between moral questions relating to justice, which can be decided

rationally on the basis of generalized and universal interests, and ethical evaluative questions that result in

various arrangements of particular conceptions of the good life related to the identity of groups and individuals.

Questions of the good life have the advantage of being contextual and concrete, posed within the horizon of a

particular social group existing with an accepted cultural identity, while questions of justice are abstract,

divorced of the context of a lifeworld and rely on the persuasive nature of better reasons for their existence.

According to Habermas, the selection of normative issues through deontological abstraction differentiates

hypothetical issues of justice from subjective preferences embodied in evaluative statements. The procedure

sorts through practical issues and selects only those that are capable of rational debate. 47In this manner, moral

questions are dissociated from their contexts and the solutions are dissociated from empirical motives. What

remains is a realm of practical discourse that is abstract and conscious of itself as engaged in a process of

argumentation but one that requires contextual sensitivity in application.

Kant uses practical reason to ground an impartial perspective to judge moral actions and principles through the

use of the categorical imperative, what Habermas calls the moral point of view. A principle or norm of action

was considered free from subjective interests due to the generality and universality of the prescribed law that

regulated matters valid for each individual. The abstract question of what is in the equal interest of all is used by

Habermas to overcome criticisms of relativity inherent in context-bound ethical determinations of what is best

for me or us in the long run all things considered. The ethical perspective that views norms as justified in our

context becomes a claim from the moral point of view to be justified in every context.48 Based on this

reasoning, Habermas asserts that issues of justice can be given priority over evaluative questions relating to the

good life because they embody shared interests. The good that is relevant from the moral point of view is

47 Ibid.p.204.

48 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998.p.37.


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incorporated in an enlarged first person plural perspective of a community that does not exclude anybody.49

Within such an expanded community, Habermas assumes that consensus on underlying norms within a shared

ethos is not possible and so he focuses on rebuilding a consensus on the basis of moral reasoning and the

construction of an impartial point of view. He assumes that the initial impulse to engage in deliberation and work

out a shared ethical self-understanding is doomed to fail in competitive conceptions of the good. He suggests

that participants embroiled in such a discourse want to resolve conflicts without violence, or even compromise,

but through communication and the force of the better argument. 50 In the absence of a substantive agreement

on particular norms, Habermas proposes that each participant may choose to rely on common interests

grounded in the act of cooperative communication which disclose shared presuppositions of reciprocal

recognition. He justifies the necessity of a transition to a fully symmetrical and inclusive communicative relation

with others on the basis that participants are already actually engaged in a cooperative rational discourse that

presupposes the use of such rules.51

If there is no authority for relations of moral recognition higher than the good

will and insight of those who come to a shared agreement concerning the rules that

are to govern their living together, then the standard for judging these rules must

be derived exclusively from the situation in which participants seek toconvince

one another of their beliefs and proposals. By entering into a cooperative

communicate practice, they already tacitly accept the condition of symmetrical or

equal consideration for everyones interest.52

Under assumptions of social and ideological pluralism, Habermas argues that application of Kants categorical

imperative requires a reformulation. What is needed is a transcendental consciousness or a universally valid view

49 Ibid. p.30.

50 Ibid. p.39.

51 Ibid. pp.40-41.

52 Ibid. (Italics original)p.24.


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of the world that considers the implications of adopting a norm from the perspective of each individual.53 The

justification of a law or norm from a single individual point of view in Kants formulation is replaced by a process

of argumentation where many individuals strive to clarify a common interest from multiple perspectives to reach

a joint decision. Consideration of the equal interests of all is undertaken by participants who collectively attempt

to persuade and convince each other that adoption of a proposed norm is in the equal interest of all or equally

good for all concerned.54 The moral point of view as used by Habermas is formulated to consider whether the

consequences of the general observance of a proposed norm are acceptable to each person affected. A norm

may be considered valid only when it embodies a general interest that could be accepted by everybody from the

perspective of each individual.55

Habermas envisions a process of public argumentation where people debate their own needs and wants, but

because these positions are tied to cultural interpretations and intersubjectively shared traditions he argues they

must not be justified monologically. The shift from practical reason in Kant to practical deliberation in Habermas

decontextualizes first person monological determinations of moral principles and submits them to an

intersubjective process of agreement. Similar to Kants originating perspective, each participant is considered a

co-legislator of a norm. However, each co-legislator is asked to adopt an intersubjective perspective to

determine whether a controversial norm can count as generalizable from the point of view of each

participant.56 In other words, each participant has to consider the contributions of others in a cooperative

discourse examining norms oriented toward reaching a communicative agreement searching for common

interests. Instead of binding others to maxims that each can will monologically without contradiction to become

a universal law of nature, individuals must submit their suggestion for a universal maxim to the scrutiny of

others to see if everyone can agree that such a maxim can be a universal norm. The difference for Habermas

involves incorporating the perspective of a participant who contributes to an argument in opposition to adopting

53 Ibid.p.57.


55 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.31 & Habermas, J. Moral Consciousness and Communicative

Action. (M.I.T. Press 1990) 1983. p.181.



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a point of view where the philosopher sees himself as deriving an inevitable theoretical outcome. Such a

reformulation presupposes cooperative argumentation and reciprocal relations where each person can defend

their view and judge for themselves what is in his or her best interest, while remaining open to criticism from

others.

Habermas proposes that impartiality can be achieved through the involvement of a plurality of participants in

public argumentation. The moral point of view as articulated by Habermas discourages Kants monological

approach to making moral judgments in which each individual imagines that everyone adopts the same rule, in

favour of an assumed pluralism that focuses on the conditions of communication in order to ensure that all

interested parties test the acceptability of a norm. The change in focus from the individual to the conditions of

communication transforms the categorical imperative into a discourse-theoretical interpretation formulated as

the discourse principle (D): only those norms can claim validity that could meet with the agreement of all those

concerned in their capacity as participants in a practical discourse.57

Habermas grounds his claim that practical-moral problems must be handled cooperatively and not monologically

in the idea that normative conflicts in everyday life can be traced to disruptions of a pre-existing normative

consensus. Argumentation is seen as the process of repairing a disrupted consensus by either restoring

intersubjective recognition of a validity claims or recognizing a new claim in substitution for an old one.58These

agreements, which express a common will, can only be achieved within a cooperative and reflexive dialogue

aimed at reaching a shared intersubjective agreement.

Habermas claims that principles of general welfare or principles of care are already contained in the meaning of

normative validity. The procedure of ideal role taking associated with the justification of generalizable interests is

linked with emotional dispositions and attitudes like empathy and care for ones neighbour which are seen as

necessary emotional prerequisites for the cognitive operations expected of participants in moral discourse. 59

57 Ibid.pp.33-34.


59 Ibid. p.182.


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Maturity is the integration of cognitive operations and emotional dispositions and attitudes in the process of

justifying and applying norms that overcome the ego-centric position in favour of consideration of the interests

of others.

Discourse ethics then, provides the structure and procedure of a process of argumentation that produces and

uncovers norms for well-ordered interpersonal relations. The main features of an impartial perspective that leads

to insightful will formation entails more than equal treatment, it requires discursive agreements that depend on

participation, individual yes or no responses, and the overcoming of the egocentric perspective. Discourse

ethics proposes to use the moral point of view to enlarge the interpretive perspectives of individuals within an

intersubjective practice of argumentation. A position of impartiality is constructed on the basis of an ideally

extended we-perspective from which all may test in common a controversial norm.60 The moral point of view is

essentially a form of ideal role taking that acts as a procedural form of justification that intends to compel the

universal exchange of roles based on the requirement that all affected parties consider the position of all others

and in particular the consequences of adopting the norm from each perspective.61

Discourse Ethics

Habermas theory of discourse ethics is grounded in the recognition of necessary presuppositions of

communicative action. Communicative action is found in everyday speech oriented toward reaching a shared

understanding of moral action and norms that participants use to consensually coordinate their future plans of

action. Communicative action is a type of discourse that attempts to rationally motivate others to adopt a norm

through an offer to redeem a validity claim in the future. Habermas distinguishes communicative action from

strategic action that attempts to secure compliance or cause a desired behaviour by influencing a person by

means of a threatened sanction or promised reward.

Habermas theory of communicative action proposes that a speaker incurs an obligation to back up a claim made

60 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. see pp.35,38,57-58.



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during discourse when they make a claim that is accepted by the hearer insofar as they both intend to orient

future action around the acceptance and non-contradiction of the accepted claim. Agreements reached within

this dialogue are evaluated on the basis of an intersubjective recognition of validity.62 The use of an

intersubjective claim of validity is to be distinguished from Kants objective recognition of valid laws.

Intersubjective claims are based on a pragmatic mutual recognition and acceptance rather than recognition of

immutable laws of freedom.

Habermas suggests that there are three types of intersubjective claims to validity that can be made about the

world that correspond to descriptive, normative, and personal statements. Descriptive claims of truth refer to

facts about the objective world, normative claims of rightness refer to an interpersonally ordered shared social

world, and personal claims of truthfulness are said to refer to the subjective conditions of an individual. 63Claims

made about descriptive facts or shared social norms give rise to obligations that take the form of an expectation

to redeem the claim in the future through the provision of acceptable reasons. Claims relating to subjective

personal conditions disclose an obligation to act in conformity with the claim. Such a schematic division

demonstrates Habermas desire to construct a distinct set of statements devoted to moral issues in the form of

claims to normative rightness. The normative statements demonstrate the acceptance of a moral norm or

customary practice that operates by condoning specific actions and setting expectations within a moral

community.

The binding nature of the obligation is normative insofar as violations of existing norms produce conflicts and

feelings of resentment. In order to overcome the position of value skeptics who claim that normative statements

fail to disclose truth conditions, Habermas asserts that personal emotional responses generated by violations

of an accepted norm act as analogous truth conditions similar to the validation of descriptive statements. He

states that, feelings seem to have a similar function for the moral justification of action as sense perceptions

have for the theoretical justification of facts.64The obligation entailed by acceptance of a normative claim to

62 Ibid. p.58.

63 Ibid. p.58.

64 Ibid. p.50.


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rightness is a product of implicit or explicit intersubjective agreement that results in a corresponding feeling. The

obligation consists of an agreement to orient future action around acceptance of the claim, the expectation to be

able to provide good reasons for accepting the claim, and an intention to not contradict the claim in the future.

Habermas puts the matter into the following notational form: When we assert p and thereby claim truth for

p we accept the obligation to defend p in argumentation in full awareness of its fallibility against all

future objections.65

I think it important to note that intersubjective agreements do not themselves indicate whether the norm is

worthy of acceptance. The observation that feelings may act similar to truth conditions in normative

statements and the fact that people resent the violation of norms they accept, says nothing about the actual

worth of any accepted norm. Personal emotional responses merely demonstrate the existence of suprapersonal

standards that are capable of uniting within a normative consensus based on an intersubjective agreement, but

they do not settle questions of normative rightness. It is the persuasive nature of the reasons provided that

serve to ground claims of normative rightness.

Argumentation

we engage in argumentation with the intention of convincing one another of the

validity claims that proponents raise for their statements and are ready to defend

against opponents. The practice of argumentation sets in motion acooperative

competition for the better argument where the orientation to the goal of a

communicatively reached agreement unites the participants from the outset.66

Habermas views argumentation as a reflective form of communicative action that seeks to establish norms

motivated by the force of the better argument.67 As a process for reaching a shared understanding,

argumentation is seen as a rule-governed interaction designed to ensure that all concerned take part freely and


66 Ibid. (italics original) pp.43-44.



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equally. Habermas asserts that good faith communication presupposes the speakers acceptance of some basic

discourse rules that operate as necessary pre-conditions for cooperative communication in general. The

presuppositions of communicative action, such as assumed reciprocities between equally competent parties,

serve as pragmatic presuppositions that operate at the procedural level in Habermas theory of discourse

ethics.68 The most important procedural standards being,69

relevant contributions are not excluded,

all participants have an equal opportunity for contribution,

the participants do not lie,

and the communication is free from internal and external coercion in order to ensure that

contestable validity claims are motivated primarily by the force of better reasons.

The presuppositions of communicative action rely on the reasoning of what Habermas calls, transcendental

pragmatics which involves the explication of unavoidable (universal and necessary) presuppositions. The general

idea is that public argumentation makes use of substantive normative rules, such as freedom of opinion, and

they operate as inescapable presuppositions of argumentation. Any attempt to deny or repudiate the minimal

logic of the presuppositions of cooperative discourse involves a mistake or performative contradiction because

to try and contest the presuppositions requires their use and no alternatives are available.70

Once explicated, the necessary presuppositions of communicative action serve as rules of argumentation in

practical discourse that act as a warrant of rightness or fairness for normative agreements which are reached

under fair and equal discursive conditions. If argumentation occurs in bad faith, or it mimics conditions of

68 Ibid. p.100.


70 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.83 and 95.


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oppression in sexist or racist terms, the process of argumentation is seen to have failed to achieve these basic

cooperative agreements among the parties. Discourse ethics then is seen as an idealized form of reciprocity in

the cooperative search for better reasons on the part of a potentially unlimited communication community. It is

modeled on a pattern inherent in the use of language oriented toward mutual understandings.71

With the acceptance of these basic presuppositions we arrive at a procedure of discursive validation in the form

of a collection of rules that operate to construct an ideally inclusive practical discourse aimed at reaching an

uncoerced agreement on the validity of norms that give equal weight to the interests and evaluative orientations

of everybody. A moral obligation attaches, not to the unavoidable presuppositions of argumentation, but to the

norms accepted for the reasons given. Habermas assumes that in the absence of deception and coercion

nothing could convince participants to accept a controversial norm except reasons that each person finds

acceptable.72

Habermas claims that it is often impossible to reach a consensus on moral questions due to a plurality of

ultimate value orientations that ground divergent perspectives. He also claims that it is impossible to force

agreement on theoretical and moral-practical issues either by means of deduction or on the basis of empirical

evidence.73 He asserts that all studies on the logic of moral argumentation end up proposing a moral principle

that acts as a bridging principle to help create consensus between divergent views. The moral principle is used

as a rule of argumentation that bridges the gap between general hypotheses and particular observations. 74 He

claims that philosophers choose a moral principle that is always a derivative of Kants basic insight represented

by the categorical imperative that uses the principle of universalization to justify moral norms and actions on

grounds equally valid for everyone.

71 Ibid. p.163.

72 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. see pp.44-5.

73 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983.(italics original) p.63.

74 Ibid. p.63.


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For Habermas, the fundamental core of cognitive ethics is the justification of moral norms in public

argumentation through the application of the principle of universalization. The principle of universalization helps

to construct a consensus in moral argumentation because it selects only those norms and principles of action

that embody a common interest for all participants. Habermas conceives of the moral principle as a tool that

excludes contested norms that cannot meet with the qualified assentof all who are or might be affected by it.

The moral principle makes agreement on issues possible because it ensures the acceptance of only those norms

that express a generalwill.75 The argument relies on the insight that those moral norms that embody universal

and generalized interests are more readily capable of forming a rational consensus. For example, human rights

are said to embody general universal interests. In this manner, the principle of universalization transcends

appeals to individual interests connected to conceptions of a particular good. Habermas holds that true

impartiality pertains only to that standpoint from which one can generalize precisely those norms that can count

on universal assent because they perceptibly embody an interest commonto all affected. It is these norms that

deserve intersubjective recognition.76

The validity of a claim to normative rightness signifies that a moral norm could win the agreement of all

concerned under the conditions of a public discourse and a joint examination of whether a practice is in the

equal interest of all.77The main feature of the moral principle captured by the principle of universalization is that

it justifies and motivates claims of universal assent. The issue that Habermas points out is whether we can all

will that a contested norm gain binding force under given conditions.78 On this basis Habermas proposes his own

formulation of the principle of universalization (U) - A norm is valid when the foreseeable consequences and

side effects of its general observance for the interests and value-orientations of each individualcould bejointly

75 Ibid. p.63.

76 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. (italics added). p.65.




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accepted by allconcerned without coersion.79 The agreement of all concerned presupposes first, the fallibility of

deliberating subjects who convince one another to recognize a worthy norm and second, the freedom of

legislating subjects who agree to adopt the norm.80The position is in contrast to ethical conceptions that appeal

to ultimate justifications that claim unerring knowledge immune to claims of fallibilism.

Overall, Habermas conceives of a three step process for normative justification. First, practical deliberation is

regarded as the only resource for the establishment of impartial judgment for moral questions captured by the

formulation of the discourse principle (D): Only those norms can claim validity that could meet with the

acceptance of all concerned in practical discourse. Second, a rule of argumentation sets out how norms can be

justified: (U): A norm is valid when the foreseeable consequences and side effects of its general observance for

the interests and value-orientations of each individual could be jointly accepted by all concerned without

coersion. And third, a practice of justification must select norms that are capable of commanding universal

agreement because they embody generalized interests common to everyone.81 In this manner, normatively

binding obligations are justified through the application of the principle of universalization which relies on the

acceptability of general principles, an analysis of the consequences by each participant, and a reciprocal ideal

role exchange that considers the interests of others.82

For Habermas, moral principles derived from the application of the principle of universalization are transformed

into a binding normativity that benefits from the imposition of an impartial perspective. However, he is careful to

make a distinction between the abstract justification of norms and their context-specific application. He claims

that moral norms do not themselves contain rules of application but require an additional competence of

reflective prudence. He argues that a system of internal controls rooted in self-government is required to follow

the convictions established by principled moral judgments.83 Habermas suggests that the weak motivating force

79 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. italics original p.42.

80 Ibid.p.36.

81 Ibid. p.43.

82 Ibid. p.29.

83 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. pp.179-180, 183.


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of moral reasons is a product of the initial separation of moral issues from questions of the good life, and should

be supplemented by coercive positive law.84 Like Kant, Habermas recognizes that we may agree on actions that

are morally right but be inclined to act otherwise anyway.

Habermas conceives of the construction and use of an impartial moral point of view as a product of an ideal role

taking exercise in practical deliberation. Habermas claims the institutionalization of impartial discourse rules and

the practice of joint deliberations help to persuade participants that moral norms are justified because they were

determined within impartial discourse conditions.85 However, although procedural rules may represent a step

forward for impartial decision-making, they are no guarantee that the moral norms adopted as outcomes will be

a reflection of that impartiality. The exercise of ideal role taking may improve understanding of the different

consequences on different groups in the adoption of a norm, but there is no guarantee such a process will lead

to the adoption of a worthy moral norm.

Many democratic forums have institutionalized egalitarian procedures that entitle parties to speak and argue

over partisan interests. These interests do not disappear under reciprocal conditions of perspective sharing.

People often listen to and ignore submissions of dissenting voices on a regular basis within democratic forums.

They simply do not share the same interests and do not agree. Although open and fair procedural rules are an

important part of a decision-making process they do not act as a warrant of impartiality as concerns the

disposition of participants and the content of the norm to be adopted in practice. In other words, the

unavoidable presuppositions of cooperative behaviour disclose impartial procedures but these procedures do not

guarantee a result in the equal interests of all. Habermas conceives of the validity of a moral norm as attached

to the conditions of discourse, but these conditions are not sufficient to guarantee that the individuals involved

refrain from strategic rather than communicative action or that the outcome will not be affected by bias. People

often accept or reject norms on the basis of changing or maintaining the status quo in terms of regulation and

the relationships between the competing interests and groups within society despite claims of egalitarian

consideration of the interests of everyone.

84 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. F.N.#51.p.274.

85 Ibid.p.41.


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Better argument

Habermas makes clear his position that ethical self-understandings lead to irreconcilable differences and yet he

claims that moral issues can be settled by reasons that privilege questions of justice and avoid criticism of moral

relativism. Habermas proposes to use the principle of universalization to bridge the gap between divergent

perspectives. The application of the principle of universalization relies on the force of the better argument to

overcome disagreement through consideration of the consequences of all affected parties coupled with a notion

of consent or acceptability. The conditions of acceptance presuppose that the force of the better argument can

succeed and that reasons can overcome divergent views and criticisms of relativity.

Many historical moral disagreements attest to the difficulty of putting forward a core set of moral norms or

evaluative goods based on conditions that all agree or could agree. In the words of Richard Posner, when the

stakes are high, emotion engaged, information sparse, criteria contested, and expertise untrustworthy a pretty

good description of the democratic process people do not simply yield to the weight of the argument,

especially argument derived from the abstractions of moral or political theory.86 One reason for this is because

disagreements over moral norms and their application conflict in the same manner as ethical evaluative

differences that appeal to separate worldviews for epistemic truth. The only difference is that rather than

contesting divergent views based on questions of what is good for me (or us) they contest divergent views

based on questions that attempt to consider the equal interests of all.

Reaching Agreement

Habermas asserts that only those norms and interests that are capable of universal assent should be selected

for consideration within the moral sphere. There are at least two approaches toward achieving universal assent

that can be found in the thinking of Habermas. The first method conceives of an agreement based on the

generalization of a norm. For example, Habermas grounds the acceptability of the presuppositions of

86 Posner, R.A..The Problematics of Moral and Legal Theory. (Harvard University Press, 1999) paperback ed. 2002. p.104.


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communicative action within discourse ethics on the basis of the assertion that the rules of discourse embody

the common interests of everyone engaged in cooperative argumentation. The second method of approach to

agreement is based on the acceptability of consequences as formulated in the principle of universalization.

Common interests

The generalization of a norm is a method of constructing propositions that are acceptable in general because

they capture a common will. If it can be established that everyone shares a common interest then opposition

to the adoption of a norm should be limited. What is interesting about generalizations of moral norms is the fact

that claims to universal assent can be made from either self-interest or other directed perspectives. Both

approaches aim to reach agreement based on generalized common interests. However, such an approach to

obtaining universal agreement has the consequence of narrowing the scope of moral questions into a search for

what interests are shared in common rather than establishing as Kant attempted, a conceptual standard from

which one could derive an exemplary mode of conduct. Agreements over norms that embody generalized

common interests can be constructed on the basis of self-interest to promote an interest that coincides with the

self-interest of everyone else or through a impartial consideration of the interests of others. Agreement based on

self-interest are not entirely what Habermas had in mind as he attempts to support Kants conception of

autonomy purged of selfish conditional interests.

Kant considered the performance of moral duties that were opposed to self-interest as opportunities to

demonstrate the greater moral worth of a duty. The mere acceptability of a norm from a self-interested

perspective would contradict the categorical imperative. However, as a method of establishing agreement in

Habermas conception, self-interest should not be overlooked. So long as norms are subjected to ideal discourse

conditions, represent a common interest, and result in consequences acceptable to everyone, the norm may be

motivated by either self-interest or the mature consideration of the interests of others.

Foreseeable consequences


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Within a practical discourse, the justification of a norm depends on whether the foreseeable consequences are

acceptable to participants. The requirement of acceptable foreseeable consequences is very close to a condition

that requires moral norms to do no harm based on the reasoning that if a harm or disadvantage were to accrue

to participants it would be rejected. One might also assume that consequences that do no harm would be

acceptable to participants. There may be some overlap between acceptable harms and the condition of do no

harm, but the main insight is that the condition of foreseeable consequence is roughly equivalent to a rejection

of harmful outcomes as defined by the participants themselves. Implicit in this formulation is the operative

principle of respect for the consent of participants. It establishes the condition that norms adopted must not

adversely affect the interests of particular parties otherwise they would not be acceptable.

The idea of foreseeable consequences as a condition of justification is an improvement on Kants monological

formulation that claims to derive principles equally valid for everyone. It requires discourse and consultation with

others in order to determine if the condition has been fulfilled, which is absent from Kants thinking. The

advantage of this formulation is that it avoids making assumptions that equate equal treatment with equal

outcomes and makes the search for consequences, which may be different for particular groups, a priority. The

disadvantage of this formulation is that moral norms must be uncontroversial to be accepted.

In the context of social regulation, the adoption of a normative claim enforced in public will likely always

produce winners and losers in terms of resource allocation or political agendas. It is also possible that a moral

norm might be worthy of recognition but have unacceptable consequences for a particular group. For example,

if a moral proposition entailed sharing material wealth with those less fortunate, many rich people operating on

the level of an ego-centric perspective would find such a proposition unacceptable. The fact that a privileged

group would deem the norm unacceptable would be a ground for denying the norm in Habermas conception of

universalization. Such a norm could be challenged on the basis of its unpopularity rather than on the basis of its

moral worth. Some moral norms may be worth observing despite the fact that they are controversial and

unacceptable to, for example, materially privileged groups.


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The basic moral phenomenon is the binding force of norms87

There are two types of necessity encountered in the moral philosophy of Habermas. The first relates to the

binding nature of moral norms that are expressed in social obligations and personal emotional feelings related to

social expectation. The second type of necessity encountered in Habermas is found in the form of unavoidable

presuppositions of cooperative language rules. Habermas tries to rehabilitate the objective necessity that Kant

ascribes to his categorical imperative through the recognition of the presuppositions of communicative action

within discourse ethics.

Limitations of agreement

Remember Kants application of the categorical imperative that claims a necessity for the laws of freedom based

on the proposition that asks us to act as if the laws were necessary laws of nature. I argued that Kants realm

of objective ends is not necessary at all but contingent on the agreement of interested parties who agree to act

as if. Asking one to hold laws as if they were necessary laws amounts to little more than asking one to agree

to uphold a law, first in our imagination, then in the world. In order to exist the objective end relies on the

agreement of individuals for its very appearance. To make a claim of necessity adds very little to change the

nature of the moral command that relies on agreement for its existence. From this perspective, Habermas had

no alternative choice but to transform the categorical imperative into a justificatory procedure that is dependent

on the consent of individuals for validity - because it is only through consent that moral norms may be

constructed.

The obligation to observe a norm is a product of an intersubjective agreement in the form of a social

expectation that invites censure for those who fail to observe the norm. Participants of first person perspectives

report normative emotional responses rooted in a perceived consensus and public agreement. On the basis of



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this observation, it would appear that the claim of a binding normative obligation is logically limited to those

concrete individuals that are informed as to the consequences of accepting the norm and actually consent to

adopt the norm. The scope and application of norms is limited to the informed consent of individuals because it

is only on the basis of consent that individuals could incur an obligation through agreement to observe a norm in

the first place. The informed consent of individuals sets the framework for incurring obligations achieved

through discourse.

Entailed in the theoretical transition in moral theory from objective recognition of laws to intersubjective

recognition is the logical conclusion that norms are valid when they are implicitly or explicitly agreed upon. Moral

norms are constructed with the intent of meeting with the qualified assent of all concerned. In cases of

uniformed consent, or plain rejection, the enforcement of a norm may be seen as peer pressure inconsistent

with the logical jurisdiction of a valid norm. In the context of moral theory, what basis of validity may be claimed

for a norm if it failed to achieve universal agreement and on what grounds could a norm be extended in

application to regulate the behaviour of those who are not aware of or have explicitly rejected the norm?

Further, what are we to do with the claim of a binding norm that extends over time where an individual changes

their mind?

The transition from Kants objective claims of ontological rightness to Habermas deontological intersubjective

claims is an implicit recognition of the principle of consent that logically limits statements about binding norms to

recognition of an agreement that is subject to change over time. Habermas conception of validity is based on

the idea that public discourse can clarify and communicate reasons that serve to build a consensus on normative

issues over time. But if the validity of a norm is tied to the consent of individuals, moral theory cannot ignore the

implications of that freedom. It would logically follow that the binding force of norms is limited to the concrete

individuals who enter into discourse and establish and maintain that consensus by agreement. Under such

conditions, the application of a norm is limited in application to those people who are informed and actually

consent. Universal assent may never be achieved in fact, although some principles are more likely than others to

achieve a greater consensus based on features that promote agreement.


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Claims that moral norms or principles are binding must be limited to the actual informed consent of concrete

participants who have clarified the content of their agreement and are persuaded by the moral reasoning. To

claim that moral norms are binding on those who disagree is a logical contradiction because moral norms are

based on the consent of others in an ideally inclusive community. When, as inevitably occurs in life, some

participants reject th

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Respect for Consent