Theory of Justice and Morality

May 15, 2002

“Self-preservation has, like all other impulses, a bad conscience”1 - Horkheimer/Adorno.

Preface

This paper is my attempt to absorb and reconstruct the diverse perspectives and

points of view relating to competing theories of justice as outlined by Jurgen Habermas in

The Inclusion of the Other. The primary aim of this paper is to describe the Habermasian

argument in a coherent manner, so that I might better understand and distinguish between

the various ideological positions outlined in The Inclusion of the Other. The secondary

purpose of this paper is to develop my own perspective and theoretical framework toward

a theory of justice in order to satisfies my hermeneutical search for self-understanding.

My first obstacle in understanding Habermas was to distinguish his original thesis

from the content of other philosophers. In this material Habermas uses the details of

philosophy like Rawl’s theory of justice and Kant’s moral philosophy as point of

departure for insights relating to his theory of communicative action. At times, however,

it is difficult for me to distinguish between his material and that of others.

Introduction

1
Horkheimer/Adorno. Dialectic of Enlightenment. NY (1944). P.92

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 Habermas compares various conceptions of “justice” from historical, analytical,

and social perspectives revealing arguments and disagreements about the content of

“morality” and the validity of public actions. He argues in favour of adopting a theory of

communicative action and discourse ethics within a proceduralist view of legitimate state

action.

The Inclusion of the Other, begins as a search for legitimacy and quickly turns to a

conversation about speech acts and truth conditional utterances. Habermas begins his

theory of justice with an exploration of the philosophy of morality, and ends with the co-

originality of the rule of law and popular sovereignty. He argues for a theory of justice

congruent with principles implicit in cooperative communication networks.

Paying particular attention to insights generated from communicative maxims and

principles derived from observation of cooperative language rules, Habermas claims to

use these presuppositions of communicative action and practical discourse as standards to

measure the democratic nature of the modern legal system. Overall, he argues for an

administrative system justified to the extent that rules of procedure are in congruence

with communicative principles.

Political Principles

Habermas proposes that constitutional states derive authority and legitimacy from

the application of two political principles, namely popular sovereignty and the rule of

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law. The principles of popular sovereignty are embodied in communication and

participation rights, while the rule of law is expressed in rights of private and public

autonomy.2

He envisions a popular sovereignty protected by procedural rules as the best way

to justify political authority and the application of the rule of law. The administrative

programs are necessary to create conditions for civil and voluntary associations, and civil

and voluntary associations are necessary to create conditions for legitimate public

administration. In this way, the rule of law and popular sovereignty are seen as co-

original and interdependent, they providing support for each other.

The need for a theory of justice arises when people find themselves confronted

with administrative structures that would govern their public or private behaviour. In the

modern era, whether in the form of commonplace regulation like a traffic ticket, or the

cries of large numbers of people unable to free themselves from poverty, democratic

governments must provide public reasons for administrative actions. According to

Habermas, the use of administrative coercion and/or intervention, or lack thereof, make a

basic political consensus among citizens absolutely necessary.

The Role of the Legal System

Our modern legal system relies on principles of justice to function. These

principles find expression in the form of positive law. In democratic forums, political
2
Habermas, J. The Inclusion of the Other. Frankfurt (1996). pp.258-259.

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interests communicate and transmit their values through the exercise of positive law. In

other words, legal positivism is subjected to justification under the guise of statutory

authority.

The use of positive law puts the medium of language at the centre of any

discourse about regulation or legitimation. In other words, the use of positive law links

cooperative communication principles found within the study of linguistic pragmatics to

the interpretation, implementation, regulation and legitimation of positive law.

Public opinion worked up via democratic procedures into communicative power

cannot itself “rule” but can only channel the use of administrative power in a specific

direction3. Legality and thereby legitimacy is bestowed performatively on acts that can

demonstrate they were the result of formal procedures relating to justice within specific

institutional boundaries and conditions.4 And although public administration is governed

by constitutional law, Habermas reminds us that our political system remains at the mercy

of other functional mechanisms such as the revenue-production of the economic system

to survive.5

According to Habermas, in addition to enshrining universal moral principles, a

legal system is a means by which a people can reflect a unique cultural identity while also

regulating shared social interaction. The creation of the artificial status of “legal person”

3
Ibid p.250.
4
Habermas J. Legitimation Crisis. Frankfurt (1973). P.99.
5
Habermas, J. The Inclusion of the Other. Frankfurt (1996). pp.252.

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with enforceable rights and freedoms, and corresponding obligations set the limits for

individual and state action in western democracies.

As far as I can gather, the term “public administration” is used by Habermas to

refer to the democratic features of constitutional states such as government by political

parties, a functioning Parliament, and formal elections. In this paper, I intend to use the

term “public administration” to refer to the legislative, the executive, and the judicial

branches of the state, which may increase the scope and application of the term in the

present usage.

Legitimation Crisis

Debate over principles of justice can begin with descriptions of existing de facto

conditions. The constitutional law system in Canada was received mainly from the British

legal tradition. Principles of fundamental justice are applied in particular ways to regulate

and legitimate the actions of individuals and government.

From the historical perspective of a theory of justice, Habermas distinguishes

between ancient and modern assumptions about legitimacy concerning state action.

Legitimacy was undermined in the modern era when the rejection of religious dogma

became tied to merchantile adventures looking to free themselves of unfounded technical

constraints. The rejection of religious dogma undermined the traditions of ancient

religion in favour of a modern scientific rationality. Philosophers and political theorists

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have tried to provide substitutes for the missing traditional justifications of norms and

principles ever since.

Public debate appears to have, or at least holds the potential to have some impact

on our world. In the past, theories of justice have been tied to claims of autonomy,

authority, morality, neutrality, impartiality, religion, metaphysical truths, utilitarianism,

democracy, liberalism, positivism, proceduralism, and discourse ethics to name a few.

Behind each new claim is the power to enforce or promote a theory of justice along with

a specific ideology tailored to meet the demands of public justification.

Prior to the legitimation crisis, moral norms and principles were viewed as

elements of a rational “order of things,” imbued with value or as part of an exemplary

way of life leading to salvation. Eventually, the “objective” reason embodied in religion

was displaced by the “subjective” reason of the human mind. Modern theories of justice

were satisfied with the attempt to justify or persuade people to invest in particular ideas

of public administration and conceptions of community and the identities that inform

them.

Despite the lack of consensus on values rooted in a socially accepted worldview,

people continue to appeal to moral convictions and norms that each think everyone else

should accept. Habermas points out that people continue to debate moral questions with

reasons they take to be compelling, regardless of whether a mere modus vivendi would be

sufficient for cooperation.

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The Rise of Science

Modernity can be characterized as a preoccupation with empirical methods. When

the people of Europe came out of the dark ages, ancient religion had long held sway over

their actions. The application of empirical science to all areas of human activity was

thought to be a general method of discovering the enlightened truth. It was thought that

scientific rationality would be capable of disclosing rules or natural laws capable of

governing even our social organization. Rational thought soon became synonymous with

a process of deduction within a clear and distinct philosophical framework directed

toward the application of technique in our physical world in endless repetition and

sequence.

The nature of ideology is expressed in a particular group that holds a particular

interest and coupled with power they motivate actions which are directed toward change

in the world. The fundamental choice facing people today is whether countries will

struggle against each other for wealth and power, or work together for security and

mutual advantage.6

Reasons

6
United States Proposals, Dept. of State Pub. No. 2411, at 1-2 (1946) as quoted p.38, Jackson, J. H., Legal
Problems of International Economic Relations, cases, materials and text. 3rd ed. West Publishing Co. MN
1995.

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 From the analytical perspective of a theory of justice, Habermas begins by

investigating everyday ethical insights as they relate to the spontaneous workings of

practical reason. If we want to be considered as bearers of communicative rationality, we

must make our argumentation accessible to others and that process consists of giving

reasons. We ask ourselves what might be the best way to solve social conflicts and avoid

violence. This process of clarification evidently binds the will by building conviction

around public reasons supported by others.

Kant defines aesthetics as opposed to logic as a critique of taste which relies on

norms in the form of a model or standard of judging which consists in general agreement

(consent).7 He defines logic as rules relating to the agreement of cognition with the laws

of the understanding and of reason (empirical verification). Habermas claims that Hume

first clarified a distinction between “is” and “ought,” a distinction perhaps analogous to a

division between facts and norms. Husserl made a similar distinction claiming that

“essences and facts (are) incommensurable, one who begins his inquiry with facts will

never arrive at essences.”8 These distinctions are difference between various conceptions

of descriptive and assertive statements.

Habermas claims that the distinction between “is” and “ought” signifies the

impossibility of logically deriving prescriptive sentences or value judgments from

descriptive sentences or statements.”9 Such an insight points to a gap between speech acts

7
Kant, I. Immanuel Kant’s Logic: A Manual for Lectures. Trans. Hartman and Schwarz. General
Publishing Company, Ltd. Toronto. 1974. p.17.
8
Satre quoting Husserl in Sartre, J.P. The Emotions, Outline of a Theory. Citadel Press : NY. 1948. p.9.
9
Habermas J. Legitimation Crisis. Frankfurt (1973). p.102 Habermas references K. Popper, The Open
Society and its Enemies, 2vols. (Princeton, 1950), vol. 1 chap. 5, “Nature and Conventions.”

8
that are capable of empirical verification and consequently true, and those that are

incapable of empirical congruence, and are therefore no more than assertions with

reasons attached.

A theory of justice would do well to establish a distinction in language use

between factual statements and statements of a non-factual nature. A clear description of

how the current system operates consisting of only factual statements, i.e. statements

open to empirical verification, could easily be set apart from sentences of an assertoric

nature.

Political “science” and social domains rarely dwell on issues capable of congruent

empirical verification. Public social activities (statements) are predominantly assertoric in

nature. If belief in legitimacy is conceived as an empirical phenomenon without an

immanent relation to truth, the grounds upon which it is explicitly based have only

psychological significance.10

I consider the difference between the two basic types of cognition process in the

brain, deductive and inductive reasoning, analogous.11 One is based on conventions of

deduction and the other relies on the performance of pragmatic inference skills.

Deductive processes limit themselves to conventions of logic, and reason, while inference

based pragmatic skills involve the whole person, emotions, imagination, and reason in the

building up of a “hunch.”
10
Habermas J. Legitimation Crisis. Frankfurt (1973). P.97 Habermas explicating Max Weber’s Concept of
Legitimation.
11
Mayer, Richard. Thinking, Problem Solving, Cognition 2nd Ed. Freeman and Company (New York 1992).

9
 Pragmatic insights claw back a tremendous amount of ground from prior matters

held to be scientific. The various conceptions of justice, the nature of ethics and morality

and the alternative approaches to describing metaphysical, rather than factual terms, is the

proper domain of a theory of justice.

From this perspective, science, the proponent of the empirical method, is limited

in operation and function to description and as such cannot offer any value statements

capable of guidance in the public sphere. All value statements become assertoric in

nature.

The nature of assertoric language is that it is performative. In such a context,

concepts such as legitimate and valid are reducible to the concept of persuasion. Such a

skeptical perspective places a burden on authority to justify action in the face of

descriptive truth and a residue system of norms broadly assertoric in nature.

Legitimacy and Persuasion

In such a context, a person evaluating a theory of justice would be inclined to ask

who constructed the standard, for what reasons, and whose values are included and

excluded in it. Human beings will have different values reflected in different standards.

Acceptance of different values does not imply that all values are of equal worth.

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 Speech act theorist suggest that “truth” is reserved for language that expresses

propositions capable of empirical verification. This implies that the validity and

legitimacy of assertoric statements has no more meaning than the contents of persuasive.

From this perspective, claims to legitimacy for statements beyond correspondence with

facts are merely persuasive.

In the context of deductive statements legitimate and valid are terms of reasonable

factual certainty, in the context of assertoric statements legitimacy and validity, without

recourse to a comprehensive worldview that discloses the absolute “truth,” mean

unproven in fact but persuasive nonetheless. If it was capable of empirical verification it

would submit to an accurate and independently verifiable description.

A confusion between the deductive nature of validity and an attempt to apply the

same process to assertoric statements creates the illusion that in such context “validity”

remains unchanged. Such is not the case. Again, to be legitimate is merely to be

persuaded that the position is legitimate, it is not legitimate in the same way a deductive

process can claim validity. To give reasons is an attempt at persuasion and nothing more.

Habermas views as valid any law arrived at through appropriately regulated

procedures of deliberation. Thus the legitimacy of a legal order in his perspective

depends on the institutionalization of the forms of political communication necessary for

rational political will formation.

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Ethical Conceptions of the Good

Philosophers engage in argumentation aimed at engendering agreement or consent

in public debate. Consent is the final arbitrator of legitimacy in a theory of justice, and for

that reason a theory of justice should canvas all available conceptions of legitimacy in an

attempt to find the one that holds the greatest potential for actual universal consent.

I would argue that if any ethical good were a suitable candidate it would have to

be geared toward minimizing the opportunity for coercion and/or intervention particularly

in the form of paternalism. It would have to be detailed enough so as not to be vague, but

compassionate enough so as not to be oppressive.

The first person expression of ethical imperatives crystallizes valuable social

information for transmission to new generations. The following Christian maxims serve

to limit our behaviour and simultaneously provide us with a pragmatic context-dependent

“concrete” test by which to do it. If we required above all other testing a test to ensure

that our behaviour conformed with the golden rule under a theory of justice perhaps near

universal consent could be gathered together. “Whatever you wish that men would do to

you, do so to them.” Matthew 7:12, and the golden rule “…thou shalt love thy neighbour

as thyself,” paraphrased from the third book of the old testament. These ethical maxims

can be applied in a manner that is universal in the sense of a constant imperative and

concrete.

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 The ethical imperative is not universal in the sense of (U) because no one is

required to consider the perspective of each participant in the discourse. However, a

strong formulation of the ethical imperative would likely intend that an individual limit

his behaviour at all times.

Neither is the imperative generalizable. It is intended to apply in “concrete”

situations, it is intended to apply to your personal behaviour. It does not require that you

consider its application to every situation. It does not act in the equal interest of all. What

it does do is provide individuals with daily opportunities to judge and/or improve

themselves.

A Moral Conception of Justice

Morality has been described as the bad conscience that “plagues” us when we act

against our better judgment.12 Ethical intuitions have been directly incorporated into all

religious conceptions. Religions can be seen as records of how ancient people

conceptualized and transmitted ethical insights derived from a shared sense of solidarity

arising from their confrontation between self and others in the form of responsibility.

Habermas distinguishes between a morality originating in self-interest and a

morality originating in community rules. The presence of others is also the catalyst for

12
Habermas, J. The Inclusion of the Other. Frankfurt (1996). P. 35.

13
insights into the origin of communicative ethics which Habermas uses to oppose the

liberal condition of self-interested instrumentality.

Habermas places a high value on morality claims that create values of justice

from a process of abstract generalization. His faith is derived by the mental skill to create

universal and impartial positions. It should be noted however that there may be some

evidence to suggest that the notion of impartiality is merely the exercise of one value

among others. In other words, the absence of value is a value choice.

The “moral point of view” has been explained in terms of various principles or

procedures, be it the categorical imperative or G.H. Mead’s ideal role-taking. The moral

point of view is aimed at an agreement or an understanding that satisfies our intuitions

concerning equal respect and mutual solidarity with everybody.

Habermas defines the discourse principle (D), according to which 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.13 The main point concerning

morality is that the reflexive application of the universalization test calls for a form of

deliberation in which each participant is compelled to adopt the perspective of all others

in order to examine whether a norm could be willed by all from the perspective of each

person.14

13
Hab p.34 IoO(1996) quoting FN #50 Habermas, “Discourse Ethics: Notesnon a Program of Philosophical
Justification,” in Moral Consciousness and Communicative Action, p.66.
14
P.33. IoO (1996)

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 Kant assumes that in making moral judgments each individual can project himself

sufficiently into the situation of everyone else through his own imagination. Habermas

suggests that the “moral point of view can only be realized under conditions of

communication that ensure that everyone tests the acceptability of a norm…from the

perspective of his own understanding of himself and of the world.”15

Critique of Ethical Positions

According to Habermas however, any theory that attempts to privilege a specific

conception of the good beyond a discourse of self-understanding, relying on its own logic

of argumentation, remains bound to its context of discovery in a specific way. The ethical

point of view is an exercise in practical reason engaged in the process of hermeneutic

self-clarification of questions which arise in either a collective form of life or during an

individual life history. He suggests that the “authenticity” of a life-project could be

understood as a higher-level validity claim analogous with the claim to truthfulness of

expressive speech acts.16

The main problem with a position based on an ethical self clarification is that it is

tied to a particular concrete horizon. Habermas claims that consensus on issues of

political justice can no longer be based on a settled traditional ethos for the whole of

society. For Habermas, this means that any construction of an ethical good is based on

historically situated reason subject to fallability and the claims of pluralism. To argue in

15
p.33
16
Habermas, J. The Inclusion of the Other. Frankfurt (1996). P. 27.

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favour of an consensually based ethical conception of a theory of justice is to be placed in

the position of trying to refute the logic of pluralism, entrenched as it is.

In much of Habermas’s discourse, pluralism is referred to as a fact. Pluralism is

premised on the idea that different communities will want to define unique and to some

degree mutually exclusive values in relation to their particular socio-cultural horizons.

Habermas argues that solidarity is a process of communicative practices oriented toward

mutual understanding based on the recognition of fallible claims to validity, but he does

extend its application toward a theory of justice.

For Habermas, ethical conceptions of the good reflect fallible anthropological

assumptions and valuations which are controversial. Habermas holds the view that a

globally shared conception of the good is improbable and he offers a critique of an

attempt to construct a formal conception of the good.

He claims that ethical conceptions distinct from “morality” in the Kantian sense

involve contradictions because any attempt to explain the concept inevitably entails

privileging certain basic contents. As well, any attempt to create a detailed ethical

conception would entail an intolerable form of paternalism, while an empty conception

abstracted from all local contexts would undermine the concept of the good.

The reasoning that follows from this assumption supports his emphasis of

procedural legitimation over liberal conceptions rooted in possibility of achieving a

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consensus on political traditions of free and equal citizens. For Habermas, any description

of the good is an attempt to promote exclusive valuations that express themselves

paternalistically. If a person rejects the good in question, in this view, they will have it

applied to them anyway. By carefully limiting his validity claims to procedural domains

Habermas avoids the criticisms involved in the promotion of a particular conception of

the good.

The assumptions of pluralism tends to exclude examination of specific values that

might serve as a basis for a starting position in relation to a theory of justice, tied as it

would be to a particular socio-cultural horizon. However, ideologies have been and will

be constructed and implemented in the political sphere that might have the potential for

generating universal consensus.

In Liberalism, for example, the social contract is supposed to provide a procedure

for reaching agreement based solely on the enlightened self-interest of the participants. A

veil of ignorance is used in an attempt to provide the conditions required for impartial

judgment of practical questions by mutually disinterested though free and equal parties.

In this view, the contracting parties need only consider whether it is advantageous

or rational for them in light of their desires and preferences to adopt a rule of action or a

system of such rules. Participants are assumed to be purposive-rational (ie. seek their

rational advantage) or to be guided by ethical conceptions of the good from concrete

17
horizons. It is generally accepted today that self-interest is a particular impoverished view

of humanity that unduly narrows the range of actual human decision making.

Rawl’s theory of justice serves as a context for Habersmasian insights generally

advocating discourse ethics and communicative action as an alternative position to

contrast with liberal theories of the state.

The corresponding conception of validity is captured by a principle of

universalization which state that only those moral norms are valid that are such that all

those affected by their general observance could freely accept their anticipated

consequences for the satisfaction of everyone’s interests. Habermas’s theory of morality

is an example of appealing to the possibility of a larger consensus than could otherwise

be obtained by focusing on competing and apparently mutually exclusive ethical

conceptions of particular worldviews.

Conclusion

In the competition for persuasion, Habermas sets out three main sources of

ideological consent for mass agreement about legal norms from an ever-widening

possible audience. The concepts of rationality associated with each ideology reflect

contents of positivism, historicism, and pragmatism.17 Liberal conceptions of positivism

build from a set of shared cultural conventions, including equal participation and an

attempt at an impartial system within its own contextual horizon. The operational aspects
17
Habermas, J. Theory and Practice. Frankfurt (1973). P.262.

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of historicism are rooted in universalization of particular ethics which transcend their

situation and become concepts of morality, and by definition qualify for a potentially

larger agreement. The third source of consent, is pragmatic. Habermas limits his

conception of pragmatism and the insights of cooperative maxims to procedural aspects

of argumentation in the hope of attracting the consent of an even larger anticipated

audience.

My general intuition is that any theory that subordinates personal ethics to

systems and abstract rules is intolerable. I can’t help but wonder throughout this exercise

if ethical conceptions of positional horizons are capable of finding an ethic that is capable

of near universal agreement in the form of love or compassion. What would our political

systems look like it we subjected assertoric validity claims to an addition burden which in

this case would be the exercise of authority in congruence with an ethic of care.

Bibliography

Grant, G. English-Speaking Justice. Toronto 1974

Habermas J. Legitimation Crisis. Frankfurt (1973).

Habermas J. The Postnational Constellation. Frankfurt (1998).

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

Habermas, J. Theory and Practice. Frankfurt (1973).

Habermas, J. Moral Consciousness and Communicative Action, (Cambridge, MA, 1990)

Horkheimer/Adorno. Dialectic of Enlightenment. NY (1944).

Sartre, J.P. The Emotions, Outline of a Theory. Citadel Press : NY (1948).

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