Rebooting Discourse Ethics

Professor Joseph Heath

Department of Philosophy

University of Toronto

[draft – please do not quote without permission]

One of Jürgen Habermas’s strengths as a philosopher has always been his lack of dogmatism,

with respect to both the literature that he draws upon and his own theoretical commitments. Indeed,

there is a sharp distinction between Habermas’s early work (Knowledge and Human Interests era) and

later work (post-Legitimation Crisis), because of his wholesale abandonment of the philosophical

framework that structured his view prior to his adoption of a communication-theoretic perspective.

While there is no doubt something refreshing about this willingness to engage in revision of his

position, in response to both criticism and developments in the field, it can also create pitfalls for the

unwary. Even though Habermas is unusually flexible in his views, like most philosophers he does not

go out of his way to draw attention to his own inconsistencies. This, combined with the fact that his

philosophical views are somewhat labile, can create serious problems of interpretation. For example,

while Habermas abandoned the construct of the “ideal speech situation” shortly after having proposed

it, this abandonment took the form of simply not mentioning it.1 It was only after two decades, during

which time commentators continued to attribute the view to him, that he explicitly distanced himself

from it.2

In this paper, I will argue that a similar interpretive difficulty afflicts the reception of

Habermas’s discourse ethics program. In particular, I will try to show that the conception of discourse

ethics that runs from Legitimation Crisis through to the papers collected in Moral Consciousness and

Communicative Action is subject to major revision in the paper, “On the Pragmatic, the Ethical and the

Moral Employments of Practical Reason,” written in 1988. Thus the view of discourse ethics that

informs the discussion in Between Facts and Norms is incompatible with the earlier conception. Given

the centrality of the discourse ethics project to Habermas’s theory as a whole, this discontinuity is

sufficient to warrant a distinction between Habermas’s “middle” and “later” work.3 The central

difference has to do with the status of the universalization principle and its relationship to the

“rightness” validity claim that is supposedly raised in all speech acts. The middle period view is

structured by a desire to provide a weak-transcendental defense of the the universalization principle.

The later revision, however, essentially undercuts the basis of this argument, because it severs the

conception of practical discourse from the analysis of speech acts.

There is another aspect of the discourse ethics program that falls by the wayside in the transition

from the middle to the late period. This is the connection, or the relationship of mutual support, that

Habermas saw between the discourse ethics program and empirical research in moral psychology. The

Moral Consciousness and Communicative Action volume contains two lengthy papers, one in which

Habermas lays out the philosophical foundations of discourse ethics, another in which he tries to show

how this theory derives “indirect confirmation from a developmental psychology of moral

consciousness.”4 Yet it is striking how little reference is made to the latter set of concerns in recent

discussions, either by Habermas or his commentators. The connection to empirical psychology, or to

empirical research in general, seems to have dropped out of the program. This is, I will argue, another

consequence of the revisions that get made in the transition from the middle to the late view. Once the

close connection between the discourse ethics project and the account of speech acts is severed, the

potential for empirical confirmation begins to wane. It has not helped that the project in developmental

psychology Habermas sought indirect confirmation from – Lawrence Kohlberg's – has itself

encountered important empirical challenges, primarily from research spearheaded by Eliot Turiel.

As a way of responding to these two difficulties, I would like to propose a “reboot” of the

discourse ethics program. This can be achieved in two steps. First of all, I will argue that the program

should be returned to its middle period formulation. This can be done by adopting a more Durkheimian,

and less Kantian, formulation of the role that practical discourse plays in sustaining systems of

communicative action. The second step involves showing how this restored version of the discourse

ethics program can be formulated as an empirical research hypothesis, with respect to post-Kohlbergian

work in moral psychology (in particular, the burgeoning literature on the evolution of human sociality).

The result is a program that is no longer encumbered by sterile debates about the role of performative

contradiction, or the correct formulation of the universalization principle, but can plausibly claim to

provide insight into the role that language-dependence in the human species plays in the development

and entrenchment of increasingly pro-social behavior patterns within our institutions.

Discourse Ethics: The Background

The relationship between Habermas’s discourse ethics program and the theory of

communicative action is complex, and therefore presents multiple points of entry for the interpreter.

One way of approaching it is to start with the fundamental pragmatics of communication. The human

capacity for complex speech, in Habermas’s view, developed because of the way that it enhances our

ability to manage social interactions. From this perspective, there are three fundamental things that one

can “do” with words – three ways of deploying communication in order to alter the outcome of an

interaction. One can either state facts about the world, announce an intention to act in a particular way,

or else instruct someone else to act in a particular way.5 Thus there are three primitive classes of speech

act, corresponding to these fundamental pragmatic categories: assertions, imperatives, and avowals.6

Habermas subscribes to what is known as a “use” theory of meaning, i.e. he believes that the

meaning of speech acts is given by the role that they play in the language games in which they are

embedded. These language games are rule-governed practices, where each “position” can be

characterized in terms of the commitments and entitlements that follow from it. The compositional

structure underlying the semantic content of expressions is given by the inferential relations among

these expressions and the justification-conditions of a particular utterance. A speaker’s grasp of the

meaning of an utterance consists in a grasp of the reasons that could be given in support of it, along

with the consequences that follow from it. Thus meaning is determined by use, but the use in question

is essentially use in an inferential practice.

Where Habermas differs from other thinkers in this tradition, like Ludwig Wittgenstein, Michael

Dummett and Robert Brandom, is that he thinks there are three rather different types of inferential

practice, corresponding the three different fundamental classes of speech act. A speaker, in producing

an assertion, an imperative, or an avowal, takes on rather different types of commitments, and claims a

different type of entitlement, depending upon the type of speech act produced. In each case, there is a

commitment to provide, when called upon, good reasons in support of the utterance produced. But the

type of reason varies according to the utterance type. The way that one defends an assertion differs

from the way that one defends an imperative. In the former case, one tries to show that a particular state

of affairs obtains. In the latter case, one tries to show that one is entitled, or normatively authorized, to

issue a particular directive.

Habermas uses the term “validity claim” to refer to the different types of commitment that are

undertaken through such utterances. Thus assertions are said to raise a “truth claim,” imperatives a

“rightness claim” and avowals a “sincerity claim.” (Each speech act necessarily raises a validity claim,

because validity claims specify the justification-conditions that constitute the meaning of the

utterance.) Each different validity claim has associated with it a different type of argumentative

practice, or “discourse,” in which the relevant set of commitments and entitlements are examined,

contested, discharged or retracted. Thus the way that one goes about defending a truth claim is different

from the way that one goes about defending a rightness claim, or a sincerity claim. Failure to recognize

this generates all sorts of confusion. For example, Wittgenstein’s behaviorism about pain can be seen as

motivated by his analysis of the expression “I’m in pain,” in terms of the reasons one could give in

support of an assertion with this content, as opposed to the way that one would go about establishing

the sincerity of an avowal. This is what led him to think that the semantic content of the expression

must be tied to the publicly observable behavior, such as writhing about, rather than inner episodes,

such as a pain sensation. The problem came from a failure to recognize that the “standard of proof” or

acceptability is much lower (or at least different) in the case of avowals than assertions.

Similar problems afflict our understanding of rightness claims, in Habermas’s view. Imperatives

are associated with sui generis claims to normative rightness. Too often, however, philosophers trying

to reconstruct the basis of normative validity translate imperatives into claims about what one ought to

do, then analyze them using the standards of assertoric discourse. This is what leads to the sterile

impasse of moral realism. (This is, of course, a language-theoretic version of the familiar Kantian idea

that practical reason operates within a different conceptual framework from theoretical reason, and that

confusing the two is the prime source of “metaphysics,” in the pejorative sense of the term.) In

Habermas’s view, this tendency to assimilate all speech acts to assertion, and to treat every type of

validity claim as a type of truth claim, is part of a larger scientistic bias that permeates Western culture.

It is the same bias that generates the tendency to equate rational action with instrumentally rational

action. If “reason” consisted of nothing other than the capacity to evaluate truth claims, then it would

serve no greater purpose than to inform us of the most effective means to the realization of our

antecedently given ends, and homo economicus would in fact constitute the ideal of human rationality.

Imperatives and avowals differ from assertions, however, in that these types of speech act generate

commitments that directly constrain the range of action-alternatives that are available, both for the

speaker and – insofar as they are accepted – by the hearer. Thus the two non-assertoric speech act types

constrain the scope of purely instrumental deliberation, by generating what Habermas calls

consequences that are “relevant to the future interaction sequence.”

In Habermas’s view, it is these commitments – intracommunicative in origin, but constraining

the set of extra or non-communicative interactions – that resolve the “Hobbesian problem of order” that

would be produced by a system of purely instrumental action. One their own, however, these

communicatively generated commitments generate only very weak constraints, when it comes to

bridling what Hobbes called “men’s ambition, avarice, anger, and other passions.”7 Furthermore, they

are always exposed to the risk of dissensus, because it is always open to anyone to challenge any of the

claims that have been raised. Thus a social order based upon communicatively achieved consensus

would be both fragile and improbable. There are two factors, however, that attenuate these difficulties.

The first is simply the ability to construct systems of incentives, to add some coercive power to the

mix. The second is more important for our purposes. It has to do with the fact that communicative

action always takes place against a vast background of taken-for-granted presuppositions – the

lifeworld – that inform every agreement, but are seldom subject to explicit thematization and debate.

This takes the form not only of culturally transmitted knowledge, but also behavior patterns –

institutions, social norms and roles – that arise as explicitly negotiated interaction patterns settle into

routine habits, and finally personality structures. One can think of “social norms” as a sedimentation of

past imperatives – lists of “dos” and “don’ts” that have become taken-for-granted, and that structure

everyday social interaction.

So where does discourse ethics fit into all this? Habermas’s initial suggestion was that language

– or more specifically the set of rules that govern practical discourse – imposes structural constraints on

the reproduction of the lifeworld (TCA 86), and that these structural constraints are responsible for the

evolution of universalistic moral codes (what modern Westerners tend to think of as morality tout

court). There are two components to this. First, increased differentiation between the three classes of

validity claim generates the process of disenchantment, demagicalization, demythologization, or what

Weber simply called rationalization, of culture. In its early stages, Habermas claims, human cultures

are integrated through a symbolic order that seamlessly blends together questions of truth, rightness

and sincerity. In particular, natural events are seen as responsive to moral qualities (e.g. disease as a

punishment for sin), while moral questions are resolved through reference to mere facts (e.g. “nature”

or tradition is appealed to as a justification for particular obligations). This symbolic order, however, is

linguistically reproduced, which means that it is constantly exposed to the sort of demands for

justification that are an built-in feature of the linguistic medium (starting with the child’s insistent

repetition of “why? why?”). As a result, gradually over time, the illegitimacy of certain “intermodal

transfers of validity” (e.g. from truth to rightness), leads to a differentiation of spheres of validity

within the culture. Questions about how things are become increasingly distinguished from questions

about how things ought to be, and so the unified body of knowledge that we now refer to as “religion,”

or the “religious worldview” starts to break down into the separate domains of science, morality, and

aesthetic experience. Recognition of what eventually came to be called the “naturalistic fallacy” is a

consequence of this rationalization process.

Meanwhile, there is a parallel process of rationalization going on within each separate sphere of

validity. In the domain of rightness claims, the decline in the authority of tradition, along with a

growing sense that nature no longer provides an authoritative template for the organization of human

affairs, means that individuals are increasingly forced to rely upon discursively achieved consensus as

the only basis for defending or revising contested norms. Issuing an imperative involves raising a

rightness claim, committing the speaker to providing some sort of justification for the content of the

imperative if called upon to do so. Thus contestation of an imperative, accompanied by a request for

justification, is a move that is available, in principle, to any participant in a process of communicative

action. While initially language was simply the medium through which a (relatively preemptory)

response would be offered, increasingly it becomes a resource that must be used in order to repair the

consensus that has been disrupted by the critical inquiry.8 People have to be argued into accepting

proposed institutional arrangements. The logic of discourse, however, is such that any individual can

block agreement simply by withholding consent. Thus the need for linguistically achieved consensus

puts universalistic pressure on systems of norms, by forcing individuals either to find justifications for

their practices that can appeal to the widest possible constituency, or to revise their practices, so that

they are susceptible to such forms of justification. The most obvious impact of this is a gradual

breakdown of the in-group/out-group distinction that characterizes premodern moral codes (or what has

sometimes been described as the “expanding circle” of moral concern1).

Thus in Habermas's view, the development of modern science goes hand-in-hand with the

emergence of universalistic moral codes. There is, according to this view, considerable truth to the

familiar story about how the struggle against Aristotelianism (or scholasticism, its Christian variant)

was central to the scientific revolution, and in particular, the triumph of the experimental method. The

central problem with Aristotelianism was its fixation on teleological concepts, and teleological modes

of reasoning. Experiment and observation had traditionally been discouraged, not because people didn't

think you could get information this way, but because they thought that these sorts of investigations

produced the wrong type of information. Observation could only tell you about efficient causes,

whereas it was the final cause of a particular event that provided real insight. Explaining what purpose

the event served was the way of situating it within the larger providential order, and therefore of

explaining why it really happened. From a modern perspective, this entire framework involves a

category error, the result of concepts that are appropriate to the sphere of practical reason (viz.

intentionality), being read into “blind” natural processes.9 Thus the conceptual bifurcation of questions

about how things are from how they ought to be laid the groundwork for the emergence of the

mechanistic (i.e non-teleological) worldview that became the hallmark of modern science.

Yet in the same way that the differentiation of ought from is questions revolutionized our

understanding of what is, it transformed our way of thinking about what ought to be just as profoundly.

In particular, the growing differentiation of “facticity” (that which happens to be the case) from

“validity” (that which ought to be the case) radically undermined appeals to authority and tradition,

when it came to determining the structure of social institutions. One way of expressing this is to say

that premodern worldviews were conservative in a way that is impossible from a modern perspective,

1 Singer.

because the fact that things were done a certain way used to be considered a legitimate argument in

favor of the claim that they ought to be done that way. From a modern perspective, we are inclined to

read such arguments as enthymematic, with a suppressed premise explaining why the mere fact that

something is done a particular way provides some reason to think that it ought to be done that way. In

the modern world, according to Habermas, all traditionalism has become neotraditionalism. Rather than

treating tradition as authoritative, people now provide rational arguments in favor of assigning

authority to tradition. This is not really traditionalism, it is indirect-strategy rationalism, since the

authority of tradition is, in this case, entirely inherited from the authority of the arguments that speak in

favor of deferring to tradition. (In this respect, Burkean conservativism is just as modern a view as

Kantian rationalism.)

This is a very common story. What is distinctive in Habermas's telling of it is that he does not

regard it simply as a process of “enlightenment,” or of people figuring out the way that things really

are. The central process of differentiation of value spheres is a consequence of the structure of language

playing itself out in the domain of cultural reproduction. We interpret this as a rationalization process –

a gain in conceptual clarity, the overcoming of error – because rationality is language-dependent. But

that doesn't mean it is a process through which we figure out how things have been all along. Our

realist intuitions are nothing but a reflection of the inescapability of our own perspective, as language-

dependent creatures.10 Furthermore, because of the role of language in the reproduction of social order,

increased social complexity drives these sorts of cognitive gains, by requiring more sophisticated

communicative performances. (Indeed, one can see here a theme that reflects the influence of the

“sociology of knowledge” on Habermas’s thinking.) Thus tensions that were always latent within

premodern worldviews become manifest, not because people one day started thinking harder, but

because of the increased burdens that were placed upon language as a medium of social integration.

Problems that were once taken to be minor issues – just details in the overall worldview, to be worked

out someday – suddenly become major issues – capable of undermining confidence in the worldview as

a whole – because over time much more came to depend upon which way the solution went.

One can see in this analysis (presented in The Theory of Communicative Action) the general

contours of the “discourse ethics” program – although at this point it remains implicit, as Habermas had

not provided any explicit statement of what came to be seen as the central ideas. According to the early

outline, there is a close connection between language, the structure of practical discourse, and modern,

secular moral codes (what philosophers tend to think of as simply “morality”). The connection,

however, is indirect. The most basic moral phenomenon, in Habermas's view, is not a specifically moral

phenomenon, but is rather just the binding force of social norms. “The normatively integrated fabric of

social relations is moral in and of itself, as Durkheim has shown”(MCCA, 164), he says. Thus some of

the puzzles that have preoccupied moral philosophers, such as how morality is able to serve as a

constraint on the pursuit of self-interest, or how moral beliefs are able to motivate agents, are not

specific to the domain of morality; they are actually general questions about why individuals conform

to any sort of social norm. Table manners and courtship rituals are, from this perspective, just as

mysterious as truth-telling and promise-keeping. Thus one can either think of all social institutions as

having a moral dimension, as Durkheim did, or else refine one's use of the term somewhat, in order to

limit it to a subset of norms possessing some special characteristic (e.g. prohibiting harm to others, or

having over-riding importance). If one adopts the Durkheimian usage, one is naturally endorsing an

extremely pluralistic view about what can count as a “moral code” – it will be whatever various people,

in various different cultures, at different point in time, have taken themselves to be under a moral

obligation to do. And then, just as religious believers are committed to the view that the overwhelming

majority of religious beliefs held by different people at different points in time are false, the person

who thinks that there are right and wrong answers to moral questions will be committed to the view

that the overwhelming majority of humanity has been wrong about morality, throughout most of human

history. In particular, all of the ideas that modern, secular, post-Enlightenment intellectuals tend to

think of as central to morality (e.g. minimizing cruelty and suffering, promoting cooperation and other

types of pro-social behavior, respecting the equality of persons), turn out to be not only absent from the

moral codes of many societies – including our own, going back a few hundred years – but positively

discouraged in some cases by the moral code. To take just one example, blood feuds are a paradigm

instance of a normatively enforced collective action problem, one that inflicts a considerable amount of

suffering, and hinges upon an in-group/out-group status differential. Yet many such feuds are clearly

perpetuated because individuals are engaged in what is sometimes called “altruistic punishment” – they

are engaged in costly retaliatory behavior, because they consider themselves morally obliged to do so.

Indeed, often the only way to really understand these behavior patterns – in particular, their often

remarkable persistence – is to take seriously this self-understanding of the participants.

It may be helpful, in this respect, to distinguish between “bad morality” and “good morality” –

where “good morality” is any sort of a moral code that we (modern, post-Enlightenment intellectuals)

would be willing to endorse, from a frankly parochial perspective. Good morality is typically taken to

have the following set of characteristics. First, it is “universal,” in the sense that it assigns to (at least)

all members of the human race primary moral standing. All persons are taken to be a potential source of

moral claims upon us (and thus have what Kant called “dignity”). Second, the content of the moral

code embodies interests that are generalizable, or that reflect what all can will in common – it doesn't

arbitrarily or flagrantly favor the interests of some above the interests of others. Some sort of

reciprocity or symmetry conditions are built into it. And finally, it contains procedural aspects, that

gives interacting individuals some say over what moral obligations they are subject to (e.g. harm can be

vitiated by consent, promises can create obligations, etc.). If one were to take a representative sample

of philosophical theories debated under the rubric of “normative ethics,” including the central strains of

Kantianism, utilitarianism and virtue theory, one would see that they all share these three

characteristics.11

Discourse ethics, in its earliest incarnations, is best understood as a cultural-evolutionary

account of how bad morality gets transformed into good morality. Human societies (as far as we know)

all started out with “bad morality.” One plausible account suggests that this is due to the influence of

what Robert Boyd and Peter Richerson have called our “tribal social instincts.” If one looks at our

closest primate relatives, one can see two central mechanisms capable of sustaining (limited) sociality:

kin selection, which favors limited altruistic dispositions that benefit immediate family, and reciprocal

altruism, which favors limited forms of cooperation in dyadic or small-group interactions. There is

nothing in the reproductive biology of humans that would lead one to suspect that we are much

different, with respect to these two central mechanisms. Thus one can see, throughout most of human

history, social structures that are not much more complex that what one finds in other primate societies

– small tribes of not more than 150 individuals, with an informal dominance hierarchy contested by

familial and coalitional alliances, engaged in constant, low-level warfare with their neighbors. The

moral codes, unsurprisingly, tend to match the social structures, and are therefore parochial, patriarchal,

hierarchical, and exhibit no particular aversion to violence, especially to members of the out-group.

Our biological dispositions, in other words, give us “bad morality.”

What distinguishes us, however, from our closest primate relatives is the extent to which

culture-dependence allows us to develop patterns of interaction that would not be sustainable on the

basis of purely biological selection. Thus large portions of the human race have made the transition,

within very recent history (i.e. the last 10,000 years), from being a merely social to being an ultrasocial

species, dependent upon (and benefiting from) cooperation in very large groups. The fact that this is

such a recent occurrence strongly suggests that it is a cultural phenomenon, or more specifically, that

the behavior patterns that sustain it are transmitted through the cultural inheritance system. Cultural

transmission, however, is subject to a number of constraints. Although it is clearly different from

genetic transmission, in the sense that it allows us to sustain phenotypes that are not “adaptive” in the

biological sense, it is also not a blank slate, which would permit the transmission of any sort of content.

Human infants, for instance, are highly imitative, which is perhaps the central mechanism of cultural

transmission. Yet they do not imitate just anything, or anyone. There are a set of very powerful biases,

which make certain types of content, or certain sorts of persons, more likely to be imitated. Thus there

are, within the field of human universals, some that are straightforwardly biological (e.g. all humans

use facial features as the primary means of distinguishing among individuals), and some that are

cultural, yet universal because they reflect structural features of how the cultural inheritance system

functions.

What Habermas's analysis draws attention to is the fact that language serves an important role

as a medium of cultural reproduction. Children imitate what they see, but they also (sometimes!) do

what they are told. Language, however, is not a fully transparent medium. Nor it it a filter that

completely blocks certain types of content. It is instead better understood as a source of bias (in the

statistical sense), one that makes certain sorts of content more likely to be reproduced than others. Its

effectiveness depends upon a key functional criterion – the extent to which the society depends upon

explicit communication as a way of achieving society integration. This is why the growth of social

complexity is accompanied – in general and in the long run – by a shift away from “bad” toward

“good” morality. Management of complexity requires linguistic resources, simply because it forces

individuals to master a set of increasingly fine distinctions, contemplate hypothetical or counterfactual

scenarios, and often externalize memory in the form of written records. All of these are language-

dependent, or language-intensive operations.12 Yet as language becomes more important, the biases that

it imposes upon cultural reproduction acquire greater significance.

What sort of content does language privilege? According to Habermas, it privileges precisely

the characteristics that are constitutive of what I have been calling “good morality”: universality,

generalizability, and formalism. This is a downstream consequence of the reason-giving practices that

are constitutive of linguistic meaning. Hence the idea of a “discourse ethics”. Morality, according to

this view, is not derived from language, or from the presuppositions of discourse. On the contrary, for

Habermas morality is fundamentally an element of shared culture (or the “lifeworld”). Its content is

inherited, not deduced. Discourse is important, however, because it is responsible for the particular

character that morality has in our society (or in modern societies generally).13 Thus, for example, the

reason that similar moral ideas (such as the golden rule, in its various incarnations) show up in different

cultures, and in every major religious tradition, is that these different cultures are all reproduced using

the linguistic medium, which has the same structural characteristics in all of these different cultures,

and therefore results in a set of moral codes that exhibit a certain family resemblance.

Discourse ethics: the official program

What has been sketched out so far can hardly be described as a program in philosophical ethics

– indeed, it is not intended to be. Habermas's initial motivation in formulating the thesis had much

more to do with the explanatory and sociotheoretic ambitions of his early work, in particular, his

attempt to develop a “two track” reconstruction of historical materialism.14 His central objective was to

show that rationalization involved more than just scientific-technical progress, or improved

instrumental rationality. He wanted to show that one could discern analogous processes of

rationalization in the moral and (to a lesser extent) the aesthetic sphere. The analysis of practical

discourse allowed him to characterize the rationalization process in the moral sphere as one in which

various constraints that were always latent in the structure of practical discourse began to exert their

effects on the broader set of social norms. Against a background of patriarchal, nepotistic, hierarchical,

and parochial norms, the gradual pressure exerted by discourse – the need to identify generalizable

interests, in order to achieved an unforced consensus – became felt. Morality, in this respect, “works

itself pure” in the same way that the common law has been said to.

As a program in philosophical ethics, “discourse ethics” received its initial formulation in the

paper, “Discourse Ethics: Notes on a Program of Philosophical Justification,” which was published two

years after The Theory of Communicative Action.15 It is here that the now-famous discourse (D) and

universalization (U) principles received their first explicit statement. The article, however, is subject to

widespread misunderstanding. There are two central obstacles. First, Habermas does not present a self-

standing argument in this paper. He is instead trying to rephrase his more general position, in such a

way as to bring it into dialogue with major currents of thought in philosophical ethics. Second, he

adopts his usual indirect strategy of exposition, presenting his own view by way of commentary on the

work of others. This has led to serious confusion between his view and Karl-Otto Apel’s, which he

distances himself from in the paper, but not emphatically enough to make the distinctive features of his

own view clear to all readers.

The expression “discourse ethics” is due to Apel, and confusion between Habermas's position

and Apel's remains a serious problem in the literature. What Apel is committed to, however, is a far

more Kantian version of discourse ethics – or at least more so than what Habermas was initially willing

to countenance. Apel takes as his point of departure a view, inspired by Charles Sanders Pierce, that

regards truth as an idealization of rational acceptability, specifically, as the object of a consensus by an

“ideal speech community.” This conception of truth generalizes easily to moral questions, resulting in a

sort of “public contractualist”16 account of moral judgment. Normative claims are correct just in case

they could be agreed upon by all. Anyone who utters a speech act, however, or even performs an

intentional action, tacitly makes a commitment that certain claims could be redeemed under ideal

conditions: “everyone, even if he merely acts in a meaningful manner – e.g., takes a decision in the face

of an alternative and claims to understand himself – already implicitly presupposes the logical and

moral preconditions for critical communication.”17 Thus the agent is committed, as part of the

transcendental presuppositions of rational agency, to act in a way that is justifiable to others. This claim

allows Apel to derive what he calls a transformed version of Kant's categorical imperative.

Anyone who denies this, according to Apel, becomes embroiled in what he calls a

“performative contradiction.” This is a speech act whose content contradicts its own illocutionary force.

The classic example, from Peter Strawson, is the person who says “it's going to rain, but I don't believe

it.” The speech act fails because its content seeks to undo one of the commitments associated with the

production of an assertion, yet without that commitment, the speaker simply fails to make a claim with

that content. According to Apel, a person who declares “I shall make an exception of myself” with

respect to the maxim governing his action is doing the same thing. The pragmatic consequence of the

speech act is that he commits himself to justifying his maxim to others. The content of the speech act,

however, articulates a maxim that precludes the possibility of justification to others, and thus seeks to

negate the pragmatic consequences of the speech act. Thus the speech act also fails.

There are a number of holes in this argument, which need not detain us here, simply because

Habermas does not endorse large segments of it. What he finds valuable in Apel's approach is the very

general idea that one might replace the concept of “practical reason” in Kantian ethics with that of

“practical discourse.” This is in keeping with the post-linguistic turn idea that one should investigate

the structure of thought, not by analyzing categories of consciousness, but by examining the

preconditions of meaningful speech. The commitment of universalizability, when dealing with practical

questions, might arise, not because of some internal connection to features of practical reason such as

freedom and autonomy, but rather from requirements of our linguistic practices. The priority of

language over consciousness, in explaining the structure of thought, would then account for the internal

connection that Kant posited between rationality and morality. Beyond this general idea, however,

Habermas takes few of the specifics of his argument from Apel. There are three major points of

divergence: first, he does not derive the universalization principle from the requirement of consensus

that supposedly governs the redemption of validity claims; second, he denies that one can derive a

general moral principle directly from the presuppositions of discourse; and third, he assigns a different

role to performative contradiction, denying that they constitute a useful strategy for responding to the

skeptic, or that they provide an “ultimate justification” for the universalization principle.

With respect to the first point, the central difference between Habermas and Apel is that

Habermas takes universalization to be a rule of argumentation, whereas Apel treats is as a criterion of

rightness. The analogy that Habermas is initially drawn toward is between universalization in practical

discourse and the principle of induction in theoretical discourse. Indeed, Habermas initially introduces

the universalization principle through an explicit analogy to the role that Stephen Toulmin ascribes to

induction in his theory of argumentation.18 According to Toulmin, induction is not a formally valid

inference rule, it is instead a pragmatic rule that allows us to move from a set of observed facts to some

sort of a generalization. In Habermas’s view, this type of pragmatic inference is valid when dealing

with truth claims. When dealing with rightness claims, however, different pragmatic rules apply.

“Norms of action appear in their domain of validity with the claim to express, in relation to some

matter requiring regulation, an interest common to all those affected and thus to deserve general

recognition.”(TCA 1:19). Habermas claims that this knowledge (what it “means to justify a norm of

action,”(MCCA 86)), combined with acceptance of the “universal and necessary communicative

presuppositions of argumentative speech,” implies a principle of universalization (U): that a valid norm

is one in which “all affected can accept the consequences and the side effects its general observance

can be anticipated to have for the satisfaction of everyone’s interests (and these consequences are

preferred to those of known alternative possibilities for regulation.)”(MCCA 65). Again, this is not a

formally valid rule of inference. It is a “bridging principle,” one that allows us from move from a

discussion of the interests at stake in a particular interaction to a more general claim about the “interest-

regulating norm” that should govern our conduct with respect to it. It is the rule that is being tacitly

presupposed whenever individuals have finished presenting their conflicting demands to one another,

and begin to move forward to a consensus, saying “okay, this is what we should do.”

Thus Habermas's universalization principle differs from the categorical imperative (and even

more so, principles such as T.M. Scanlon’s principle of reasonable rejectability, or the “golden rule” in

its various guises) in that it does not imply any specific moral obligations, just as the principle of

induction does not imply any specific generalizations or theories. Furthermore, principle (U) would

never appear as a premise in any sort of moral argument, and participants in practical discourse would

have no particular reason to mention it, or to develop any sort of explicit formulation of it. Habermas's

account of (U) is an exercise in what Robert Brandom called “expressive rationality” – rendering

explicit that which is implicit in everyday inferential practices. Indeed, Habermas presents his account

of discourse ethics as a contribution to metaethics, not normative ethics. It is quite explicitly intended

as an intervention in the debate between moral cognitivists and non-cognitivists, not (for example)

deontologists and consequentialists.19 “The moral intuitions of everyday life are not in need of

clarification by the philosopher,” he writes. “In this case the therapeutic self-understanding of

philosophy initiated by Wittgenstein is for once, I think, appropriate”(98). The central objective of

moral philosophy, as Habermas conceives it, is extremely limited, viz. to help resolve some of the

“confusions that it has created in the minds of the educated” by promoting various forms of value

skepticism (MCCA 98). Along these lines, he criticizes Rawls for attempting to derive a specific theory

of justice from his characterization of the original position (66). These “substantive parts of his study”

should have been put forward, Habermas claims, in the voice of a participant in discourse, rather than

that of a philosophical expert (66).

The second important difference is that Habermas does not treat (U) as a moral norm, and he

does not think that it can be applied directly in everyday life. This is the most dramatic difference

between his position and Apel’s. Apel's view is rather similar to Alan Gewirth's, in that it starts from the

conditions of rational agency, or of rational action, then tries to show that some sort of a moral

commitment is an implicit consequence of this structure of agency or action.20 It does this by tying

rationality to argumentation, argumentation to discursively achieved consensus, and then consensus to

a type of universalizing moral principle. Jari Niemi has summarized the view in the following way:

“the thesis is that anyone who partakes in human linguistic communication at all is thereby necessarily

involved in argumentation, and by being necessarily involved in argumentation, must presuppose

certain rules of argumentation that turn out to have the status of moral norms..” “If this approach is

successful, then certain moral norms are also inescapable, because the general rules of argumentation

just are so many moral norms.”(258)

This is a fair summary of Apel’s view. Unfortunately, Niemi does not present it as a summary of

Apel’s view, but rather as an account of “the foundations of Jurgen Habermas's discourse ethics.” Yet

not only is it not what Habermas says, it the explicit opposite of what Habermas says. Because there is

so much confusion on this score, Habermas's full statement of his own position is worth quoting in full.

He illustrates the architectonic of his own position using the example of a “principle of freedom of

option,” which he takes to be a rule that prevails in practical discourse. Transcendental-pragmatic

argument may force the skeptic to acknowledge that discourse is governed by a set of principles with

implicit moral content, such freedom of opinion. However, this has no direct moral relevance:

[W]hat the skeptic is now forced to accept is no more than the notion that as a participant in a

process of argumentation he has implicitly recognized a principle of freedom of opinion. This

argument does not go far enough to convince him in his capacity as an actor as well. The validity

of a norm of action, as for example a publicly guaranteed constitutional right to freedom of

expression, cannot be justified in this fashion. It is by no means self-evident that rules that are

unavoidable within discourses can claim to be valid for regulating action outside of discourses.

Even if participants in an argumentation are forced to make substantive normative

presuppositions... they can still shake off this transcendental-pragmatic compulsion when they

leave the field of argumentation. The necessity of making such presuppositions is not transferred

directly from discourse to action.(MCCA 85-86).

Thus Habermas says (pace Apel) that one cannot derive “basic ethical norms directly from the

presuppositions of argumentation. Basic norms of law and morality fall outside the jurisdiction of

moral theory; they must be viewed as substantive principles to be justified in practical

discourses”(MCCA 86).

Niemi is certainly not alone in having ignoring these disclaimers; many of Habermas's

commentators have done the same. One suspects that a certain amount of this is motivated by

puzzlement over what the discourse ethics program is supposed to accomplish, if not the derivation of

some sort of moral principle that will be relevant to everyday life. What is the point of a

universalization principle that governs only practical discourse, but doesn't “claim to be valid for

regulating action outside of discourses”? More generally, if basic norms of morality “fall outside the

jurisdiction of moral theory,” what is the point of doing moral theory?

What is missing from these perspectives is a grasp of the broader socio-theoretic context that

informs Habermas's theory, and in particular, the basic Durkheimian idea that we get our morality – our

concept of what is right and wrong – from our culture, from the ambient set of social norms. Morality

is not derived from first principles, nor does it rely upon any sort of underlying generative mechanism.

Morality is a complex cultural artifact. It is, however, reproduced linguistically, which means that

language, and by implication, discourse, serves as a filter that biases reproduction of social norms. This

means that the intralinguistic norms governing discourse do have extralinguistic import, but only

indirectly, insofar as they bias cultural evolution. So while (U) cannot be used to derive any specific

duties, or motivate any specific actions, it nevertheless leaves its imprimatur upon the system of norms:

The point of the discourse ethical justification of the moral point of view is that the presumed

normative content of this epistemic language game is transmitted only by a rule of argumentation

to the choice between norms of action, which – together with their moral validity claim – are

introduced into practical discourses. A moral obligation cannot follow solely from the

‘transcendental’ constraint of unavoidable presuppositions of argumentation; rather it attaches to

the special objects of practical discourse, that is, to the input of norms to which the reasons

mobilized in deliberation refer.21

It is for this reason that Habermas does not feel obliged to justify (U), in the way that Apel does.

This accounts for the differences in the way that the two make use of the notion of “performative

contradiction,” which is the final major axis of misunderstanding for interpreters. Habermas agrees

with Apel that these contradictions help to identify inescapable presuppositions, and thus

“demonstrating the existence of performative contradictions helps to identify the rules necessary for

any argumentation game to work; if one is to argue at all, there are no substitutes”(95). However, the

appeal to performative contradiction cannot be used to provide any sort of justification or foundation

for these rules. Indeed, he criticizes Apel’s “stubborn retention of the claim of transcendental

pragmatics to ultimate justification.”(96). In his view, “the fact that there are no alternatives to these

rules of argumentation is what is being proved; the rules themselves are not being justified.”(95)

Furthermore, any proposed articulation of the content of these rules is falsifiable.(97) Thus the central

function of the search for performative contradictions is not to justify the universalization principle, but

simply to provide a “guide” for “the identification of pragmatic presuppositions of argumentation that

are inescapable and have a normative content.”(96-97). The overall procedure is governed by a

“maieutic method” that involves identifying presuppositions and casting this “pretheoretic knowledge

in an explicit form”(97).

Again, these reservations that Habermas has about Apel’s approach have been ignored by many

commentators. Part of this no doubt involves the same sort of puzzlement about what Habermas’s

argument is supposed to accomplish, if not something along the lines of what Apel proposed. In

particular, Habermas seems to block the two obvious venues through which the pragmatic

presuppositions of discourse could be extended to govern action outside of a purely discursive context.

First, he argues that (U) is only a rule of argument, not a moral principle, and so governs only

discourse, not everyday life. Second, he denies that (U) can be justified through a performative

contradiction argument, and thus denies that a moral skeptic could somehow be forced to acknowledge

the authority of a universalization principle, or that he is committed to it merely by virtue of acting

intentionally.22 It is only when individuals enter into the game of practical discourse that they become

subject to such a rule. What is there to be said, then, to the person who simply opts not to enter into this

game? Discourse ethics, as Habermas construes it, seems to have nothing to say to the rational egoist.

This puzzlement is, to a certain degree, understandable. In order to see the force of Habermas’s

position it is necessary to look beyond the “Discourse Ethics” paper, in order to see the fit between the

program outlined there and the broader ambitions of the theory of communicative action. In the paper

that follows it, “Moral Consciousness and Communicative Action,” Habermas says the following:

Only when we return to the level of action theory and conceive of discourse as a continuation of

communicative action by other means can we understand the true thrust of discourse ethics. The

reason we can locate the content of (U) in the communicative presuppositions of argumentation is

that argumentation is a reflective form of communicative action and the structures of action

oriented toward reaching understanding always already presuppose those very relationships of

reciprocity and mutual recognition around which all moral ideas revolve in everyday life no less

than in philosophical ethics.(130).

The crucial connection lies in the fact that “in reaching understanding about something in the

world, subjects engaged in communicative action orient themselves to validity claims, including

assertoric and normative validity claims.”(100) Social norms are mediated and reproduced through the

production of imperative speech acts. These imperatives raise a rightness claim, in the same way that

assertions raise a truth claim. Such a claim is not just conventionally bound up with the utterance, it is

necessarily associated with it, because the meaning of the utterance is given by its justification-

conditions. In the case of imperatives, this means that the hearer’s understanding of the speech act

consists in a grasp of the conditions under which the rightness claim could be redeemed in practical

discourse, which is to say, how they could be shown to embody a generalizable interest. Thus it is

Habermas’s speech act theory, along with his analysis of how discursively raised validity claims

resolve the problem of order, that provides the connection between the norms governing practical

discourse and constraints that individuals are subject to in everyday life. This is why he is able to

eschew the more traditional philosophical argumentation strategies that Apel deploys. People act

morally, in Habermas’s view, not because they want to avoid performative contradictions when called

upon to justify their actions, but because they are respecting the prevailing set of social norms, and

these norms have built in to them already – by virtue of the linguistic medium in which they are

reproduced – a commitment to discursive redeemability. 23

What is central to this argument, and the transcendental-pragmatic analysis it is intended to

support, is not the specific details of any proposed reconstruction of the rules of discourse (which may

explain why Habermas is less than detail-oriented in the reconstructions he proposes, since all three

times that he presents the (U) principle he formulates it differently24). What matters is the claim that all

imperatives raise rightness claims, and that these are meaning-constitutive.25 This is the important part

of the transcendental argument, since it is what establishes the claim that “there is no form of

sociocultural life that is not at least implicitly geared to maintaining communicative action by means of

argument, be the actual form of argumentation ever so rudimentary and the institutionalization of

discursive consensus building ever so inchoate”(100). This explains why a rational egoist cannot

simply opt out of practical discourse.26 This is also why Habermas goes to great lengths to defend the

claim that all imperatives necessarily raise rightness claims. In particular, it is why he defends the

implausible view that threats, which often have the grammatical form of imperatives, are not really

imperatives, but actually concealed assertions (disjuncts, of the form “do this, or I will do that”).27 The

reason for taking this line is that he does not want to admit that there could be a practice of imperative-

giving that did not commit the speaker to a defense of the validity claim in a practical discourse –

because then there could be forms of life that were not geared toward maintaining communicative

action by means of argument, or at least not argument governed by a universalization principle.

Seen from this perspective, it is easy to see why Habermas does not spend too much time and

effort on the exact formulation of (U) – why he does not even provide the derivation from the rules of

discourse that he alludes to. He does not intend to derive any specific moral obligations from (U).

Indeed, he obviously thinks that a lot is compatible with it, because all imperatives, and hence all social

norms, are taken to be redeemed in a practical discourse structured by (U). Specific examples that

Habermas gives, in The Theory of Communicative Action, include a flight attendant telling a passenger

on an airplane to stop smoking (TCA 1:300-301) and a professor asking a seminar participant to get

him a glass of water (TCA 1:306). Habermas is quite specific that the order to stop smoking raises “a

claim to normative validity” (TCA 1:301). The initial order, of course, is made against a specific

institutional background (first and foremost, “the safety regulations for international air travel”[TCA

1:300]). However, “one who doubts the validity of the underlying norms has to give reasons – whether

against the legality of the regulations – that is, against the lawfulness of its social force [Geltung] – or

against the legitimacy of the regulation – that is, against its claim to be right or justified in a moral-

practical sense”(TCA 1:301). This is not particularly implausible, since it should be easy to show that

non-smoking regulations of this sort reflect a generalizable interest. Similarly, all sorts of culturally

specific norms could be “justified in a moral-practical sense.” The particular rules that we group

together under the heading of “table manners,” for instance, are not universal, and are perhaps not

universalizable in the strict Kantian sense, but one can see how a case could be made for any one of

them in a practical discourse governed by (U). Table manners in general serve a variety of interests that

are shared by all, such as showing respect for others, acting in a predictable fashion, showing deference

to the needs of others, pacification of distributional conflict, etc. Many of these objectives are

consistent with a certain degree of conventionality in the specific rules that are adopted. For instance,

the interest in predictability is served by having a set of rules that is common knowledge among all

parties to the interaction (e.g. the order in which dishes are served). A rational defense of such a norm

need not produce a “sufficient reason” for it, it merely needs to serve the interest in question and attract

no obvious objections. Thus the fact that it is conventional is no impediment to its being morally

justifiable. It is also worth noting, in this context, that the need for agreement generated by (U) is

limited in scope to all those who are affected by a norm. This raises obvious philosophical difficulties

about who can be said to be affected (e.g. what counts as a “harm”), but it shows that cultural

variability is also no obstacle to universalizability, in the sense that Habermas intends it.

Discourse Ethics: The Later View

Habermas begins to drift away from this “middle period” formulation of the discourse ethics

program over the course of the 1980s. What must be regarded as the decisive break occurs in the paper

“On the Pragmatic, the Moral and the Ethical Employments of Practical Reason,” in which he

distinguishes between three different types of practical discourse. It is the basic architectonic sketched

out in this paper that informs the discussion in Between Facts and Norms, where Habermas essentially

abandons the Durkheimian ideas that informed his earlier work in favor of more orthodox Kantianism.

There are at least five major points on which Habermas changes his mind.

1. The most important revision involves what Mattias Kettner has called “the diversification of basic

types of discourse,” in particular, the introduction of “ethical” discourses as a particular employment of

practical reason. From the beginning Habermas had struggled to find a place in his architectonic for

axiological questions, i.e. claims about the good life, or what he calls “ethical-evaluative” questions.

His initial impulse, at the beginning of The Theory of Communicative Action, was to assimilate

“discussions of value standards” to sincerity claims, and to argue that “aesthetic criticism provides the

model” for understanding them (TCA 1:42). Thus ethical-evaluative discussions were rather sharply

distinguished from “practical” discourses, in which the “rightness of moral norms” and the validity-

claims associated with imperatives were to be tested (TCA 1:42). In later work, however, he reverses

himself on this point, and begins to treat ethical and moral questions on par, as the subject of different

types of practical discourse. What is particularly important is that he distinguishes them in terms of

their degree of universality, not in terms of their logical form (i.e. axiological vs. deontological).

According to this new schema, therefore, the “rightness claim” raised by a particular imperative,

despite its deontic form, could be associated with either an ethical or a moral claim, depending upon

whether the norm in question is justifiable with reference to what is “good for us,” or rather through

reference to some broader principle of justice that everyone could assent to. Table manners and

smoking regulations will obviously be relegated to the realm of the ethical. Indeed, Habermas even

suggests that the type of cognitive resources deployed by individuals in resolving Kohlberg-type

dilemmas (such as whether to defraud an insurance company in the case of acute need28) are

fundamentally ethical, not moral.

2. Habermas begins to limit the output of moral discourses to a set of extremely abstract, high-level

universal norms. Thus the rather loose sense of universalizability, in terms of which a no-smoking rule

or a rule of etiquette could be universalizable, gets replaced by a much stricter notion. The types of

principles that can be justified in moral discourse – i.e. discourse governed by the (U) principle – are

“equal respect for each person, distributive justice, benevolence toward the needy, loyalty, and

sincerity”(BFN 115). Everything else becomes either an ethical question, or else a matter of

“application” of these higher-level norms.29 Thus Habermas rejects his earlier, Durkheimian

formulation of discourse ethics, according to which every social norm raises a validity claim, which is

in turn subject to discursive testing in a practical discourse governed by the (U) principle (which

explained why “there is an internal connection between the ‘existence’ of norms and the anticipated

justifiability of the corresponding ‘ought’ statements.” (MCCA, 61), and why “the normatively

integrated fabric of social relations is moral in and of itself.” [MCCA, 164]) In Between Facts and

Norms, these everyday social norms get demoted to the states of mere convention. “With the transition

to a postconventional level of justification, moral consciousness detaches itself from customary

practices, while the encompassing social ethos shrinks to mere convention, to habit and customary

law.”(BFN 113) Morality is presented purely as a system of cultural knowledge, with no intrinsic

connection to any sort of action system.

3. While still maintaining that (U) is a rule of argument and denying that it is a “superprinciple” in

Apel’s sense of the term (JA, 86-87), Habermas begins to describe it as a “moral principle.”

Furthermore, rather than treating (U) as an implicit feature of everyday discourse – used by participants

to move from a discussion of individual interests to a proposal for normative regulation that offers

satisfaction to the generalizable interests at stake – universalization comes to seem more like an explicit

test procedure (Habermas writes that, “specialized for questions of justice, a principled morality views

everything through the powerful but narrow lens of universalizability.”[113]), or else as a principle that

will be directly appealed to in justifying particular norms (he says that “norms are judged to be valid in

light of the moral principle”[87]). At times, the difference between (U) and the categorical imperative

becomes imperceptible, as when Habermas defines moral questions as those in which the individual

asks “whether I can will that a maxim should be followed by everyone as a general law”(JA 7). Indeed,

at some points Habermas sounds as though he is taking pleasure in channeling Kant, trying to show that

all of the essential elements of Kant's moral philosophy (including his conception of autonomy [JA 14-

15]) can be vindicated simply by translating them into a discourse-ethical idiom.

4. In his “Remarks on Discourse Ethics” paper Habermas rephrases (U), so that instead of requiring

that proposed norms be “in everyone's interest,” or “in the interest of each individual,” he says that they

must be “equally in the interest of all.” So instead of there being merely abstract symmetry conditions

built into practical discourse, or a general sense that norms should be acceptable to all, there is now a

substantive commitment to equality implicit in the rules of argumentation (or perhaps our pretheoretic

understanding of “what it means to justify a norm.”) This has a number of repercussions, one of which

is that discourse ethics can no longer be construed as a strictly metaethical project. It is difficult to say

what sort of project it has become, however, because Habermas never provides any account of this

conception of equality, how it is supposed to be derived, or even how it is to be interpreted. (For

example, is it intended to permit compromises, so that even if not everyone gets full satisfaction of his

or her interests, each still gets equal satisfaction? Or is it intended to forbid outcomes in which

everyone gets his or her interests satisfied, but the structure of the interaction is such that this proves

more advantageous to one party than to some other?) In general, it is difficult to imagine that this sort

of a constraint could arise out of the rules of argumentation, so the only way to get it into a conception

of practical discourse, it would seem, would be to define the set of moral questions as those that admit

of answers that satisfy this criterion. This is, in Between Facts and Norms, precisely what Habermas

does, saying, “The moral principle [U] first results when one specifies the general discourse principle

for those norms that can be justified if and only if equal consideration is given to the interests of all

those who are possibly involved”(BFN 108).

5. Habermas removes the scope restriction, so that the agreement required by (U) is not longer just that

of “all affected.” He continues to talk on occasion of “all possibly affected,” with the relevant notion of

possibility left unspecified. Most of the time, however, he simply requires the agreement of everyone.

“With moral questions, humanity or a presupposed republic of world citizens constitutes the reference

system for justifying regulations that lie in the equal interest of all. In principle, the decisive reasons

must be acceptable to each and everyone”(BFN, 108). Again, this is obviously going to require

retraction of his earlier claim that non-smoking regulations “claim to be right or justified in a moral-

practical sense”(TCA 1:301). More importantly, however, it casts serious doubt upon Habermas's

distinction between his own view, which is supposedly “dialogical,” requiring real interactions between

real people, and other contractualist positions, such as T.M. Scanlon's, which he criticizes for being

“monological.” Extending the scope of the discourse to include all of humanity – most of whom, it is

worth recalling, are incapable of communicating with one another because they lack a shared language

– makes the entire construct a hypothetical criterion, no different in practice from Scanlon's

“reasonable rejectability” standard. More subtly, the modification erodes one of the animating ideas of

the early discourse ethics project. The point of insisting upon real discourses, rather than hypothetical

constructs, in order to test the validity of norms, is not to force philosophers to guess what real people

would say, but rather to insist that moral questions cannot be settled by philosophers. This is why

Habermas at one time insisted that Rawls had crossed the line, when he went from simply

characterizing the original position to deriving the difference principle. Moral questions arise

endogenously within the lifeworld, through the contestation of specific social norms, and are constantly

being negotiated and renegotiated by real social actors. Philosophers have developed the expressive

vocabulary that allows them to offer a rational reconstruction of these processes of cultural and social

change – and in particular, to offer some account of their directionality – but they have no special

resources to deploy when it comes to making the case for or against particular norms. Thus the original

discourse ethics project calls upon philosophers to exercise enormous self-restraint, when it comes to

controlling their own tendency to engage in legislative moralization (far more so, for instance, than

Rawls’s “political” conception of liberalism).

These are the central changes that the discourse ethics project undergoes in what I have been

calling the “late” period. I won't attempt a dispassionate analysis of these amendments, simply because

I think they deprive the discourse ethics program of almost everything that was interesting in the initial

formulation. Obviously much attention has been focused on the seemingly ad hoc distinction between

the moral and the ethical. It is difficult to find anyone willing to defend Habermas on this point.30 Less

attention has been focused on the fact that the derivation of (U) is, for Habermas, still a promissory

note. At one point he endorsed William Rehg's attempted derivation, but Rehg was working with the

early formulation of (U) that contained no reference to equality.31 Of course, if one were to take the

analogy between (U) and the principle of induction seriously, and treat it as a rule that is implicit in

everyday argument about practical questions, then the lack of an explicit formulation, or derivation,

would not be so problematic. After all, we lack a formal account of induction, not to mention any sort

of derivation of it from more elementary presuppositions. If (U) is to be treated, however, as a “moral

principle,” or as a source of substantive constraints on the types of considerations individuals can

introduce in moral argumentation (e.g. as a welfarist constraint, as Abizadeh has suggested, or perhaps

as a realist claim about norms, as Lafont has suggested), then there is simply no point in talking about it

until some sort of a derivation has been put on the table, or at least some sense of how it could be

shown to follow from something less controversial. Otherwise the whole discourse ethics program

winds up becoming little more than the dogmatic insistence that this principle, rather than some other,

is the one that is “really” implicit in the structure of practical discourse.

What is most problematic about the later view, however, is that it severs the connection between

practical discourse and communicative action, and therefore deprives Habermas of the resources

required for his “transcendental-pragmatic” defense of morality, not to mention his broader ambitions

for a critical theory of society. What was central to the early position, one may recall, was the view that

every imperative raises a (meaning-constitutive) rightness claim, and that all rightness claims were

tested, then redeemed or revised, in a practical discourse governed by (U). As a result, every form of

life was susceptible to moral criticism. The specter of society in the thrall of “total ideology,” or of a

hermetically sealed culture, one that deprived individuals of any of the resources required for critical

inquiry, was thereby shown to be a conceptual impossibility. The argument of The Theory of

Communicative Action was intended to show that language itself, in order to secure the conditions of

mutual intelligibility, necessarily provides individuals with the tools required to engage in social

criticism. To put it in a slightly misleading way: every social order, through its use of language as a

medium of social integration, advertises itself as rationally accountable to its members, and commits

itself to provided justification for its rules upon request. Even when it is unable to make good on this

promise, the pressure that such demands put upon it generates an evolutionary dynamic that pushes it

the direction of greater universality. But most importantly, the argument is intended to show that there

can be no society in which criticism of a norm would be met with complete puzzlement. No one is ever

entitled to say, “What is this thing you speak of, called justification? Around here, the way we do things

does not require justification.”

With his later position, Habermas loses his capacity to make this argument, because moral

rightness claims can no longer be regarded as constitutive for the meaning of imperatives. Indeed, in

accordance with the later view one can well imagine a society in which no one ever made any moral

claims at all. In fact, one can imagine that in many societies, especially those with an in-group moral

code, no one ever does – they get by with just “ethical” claims, which are immune to certain sorts of

criticism. This climb-down becomes complete when Habermas later distinguishes between “strong”

and “weak” communicative action, where weak communicative action is intelligible, comprises

imperatives, and is oriented toward mutual understanding, but does not raise a normative rightness

claim [OPC 340]. As a result, the kinds of commitments generated through processes of communicative

action, which might force participants to justify their conduct to a new person who shows up, turn out

to be entirely optional. The connection therefore between discourse ethics and Habermas’s social

theory, his account of modernity, and the rationalization of the lifeworld, is lost.

A Research Program

My intention is not to add to the (sometimes vituperative32) literature criticizing discourse

ethics. There are, in my estimation, a number of important and challenging philosophical ideas

represented in the early discourse ethics program, which became increasingly obscured, and in some

cases were cast aside, in Habermas’s later formulations. The most important ideas were lost

irretrievably when Habermas decided to treat “ethical” discourses as a particular employment of

practical reason. This was the point at which discourse ethics “jumped the shark.” What I would like to

propose is a reboot – a return to the central ideas that animated the project in its original formulation,

accompanied by some suggestions for avenues of inquiry that could be pursued, in order to make

discourse ethics a more fruitful research program. In particular, I want to suggest certain ways in which

the connection to empirical scientific research could be restored.

The central idea – the one that puts the “discourse” into “discourse ethics” – is that what we are

inclined to regard as the central features of morality – viz. the promotion of prosocial or cooperative

behavior, the minimization of harm and suffering, the importance of impartial judgment, and the

extension of the moral community to include all persons – are a consequence of the use of language as

a medium of social integration and cultural transmission in human societies. In order to sharpen this

claim, it is perhaps useful to specify what it denies. According to this view, moral judgments are not a

consequence of structural features of consciousness or “practical reason” construed along such lines,

they are not the verdicts of some evolutionarily adapted “moral organ,” they are not judgments about

moral properties instantiated in the world around us, nor are they reports from any special moral sense,

sentiments or heuristics. What Western philosophers have been trying to understand, when they talk

about morality, is actually just a set of characteristics that the broader system of social norms acquires

as part of the civilizing process. Morality in this sense is a byproduct, not just of culture, but of one

particular mechanism of cultural transmission. This is why one can see consistent, dramatic, directional

change over the course of even recorded history, as well as enormous, but not unlimited, variation in

moral convictions across cultures. Furthermore, as societies become more complex – and hence more

dependent upon language as a medium of social integration – one can see a certain measure of

convergence towards what we tend to think of (parochially) as “good” morality.33

The most important claim in support of this contention is the view that language is dependent

upon a set of social practices that are extremely symmetric. This would explain why language is not

completely transparent with respect to cultural transmission, and thus why not all social norms are

equally likely to be reproduced once they have become discursively thematized. The philosophical

intuition here is not implausible. When there is a major conflict between groups, for instance, one of

the big questions is always whether the two parties are “talking to one another.” The reason that we

consider this important is fairly obvious – talk is more likely to generate a stable resolution than purely

instrumental action. We also understand that talk narrows the range of likely resolutions. Indeed, in the

case of armed conflict, one of the reasons that the parties are often not talking is that they know that

certain outcomes can only be achieved through violence, not through discourse, because in talks the

parties are situated more equally than they are in the extradiscursive context. This is not to say that

there are not intradiscursive inequalities as well, or that the extradiscursive context does not impinge

upon the discourse, it just means that the relative equality of the discursive context has a leveling

influence, which biases outcomes in the direction of increased equality.

Any further specification of this idea, however, should be part of the research program. What

exactly it is about language that makes the associated discursive practices symmetric or egalitarian

should be considered an open question, as should any characterization of the mechanism through which

this symmetry biases cultural reproduction. The current debate has tended to generate a certain

fetishization of the (U) principle, despite the fact that Habermas presented it as nothing more than a

fallible attempt to articulate a rule of argumentation that was already implicit in the everyday practice

of discourse. The mere fact that it has become so controversial suggests that this attempt was a failure.

Furthermore, the analogy with induction never worked very well. The whole idea of practical discourse

being a forum in which the rightness of imperative are tested, analogous to theoretical discourse in

which the truth of assertions is tested, falls apart as soon as one observes that imperatives must be

transformed into assertions (e.g. “he ought to do x”) in order to be discursively thematized.34

Finally, discourse ethicists should decisively reject the “gotcha” style of argumentation that

Apel’s appeal to performative contradiction promotes. As critics have pointed out, any of the

idealizations that are implicit in either speech or discourse can be suspended in any particular instance.

The norm of truth-telling may be a transcendental presupposition of contentful utterances, but that

doesn’t prevent people from lying. So even if one could find a credible “proof” that one must accept

(U), it is easy to show that there is nothing that locks a speaker into it at any particular point in time. A

person can always lie, or violate other rules of argument (see Niemi, p. 262). And of course one can opt

out of communication entirely. So the argument has no force at this level. It does have force if one

looks at it from the standpoint of cultural reproduction. Then, the claim that for the most part speakers

have to respect certain rules becomes significant, because one is talking about a process that affects

cultural reproduction in the long term. The problem with violation of the rules is not that it can’t be

done, but that the general practice can’t be sustained that way; violation of the norms cannot become

the norm – and as a result, the system of norms over time acquires a certain character. It is from this

more sociological perspective that the discourse ethics program makes a set of interesting claims.

1. Although Habermas cites several “rules of argumentation” from Robert Alexy's work, he does so in a

way that suggests that this is merely a sample of the sort of rules that might be important, and that

might lend support to the discourse ethics project. In the subsequent literature, however, there have

been no further attempts to articulate rules of discourse. Instead, the three or four rules that Habermas

happens to cite wind up being treated as canonical. Part of the problem is that Habermas muddies the

waters by suggesting that the rules of discourse might differ, depending upon the specific topic under

consideration, and that a principle like (U) arises, not from the discourse as such, but from the

intersection of these rules of discourse with certain presuppositions arising from the topic at hand. This

was not entirely implausible when these topics were specified at an extremely formal level, such as

“what assertions are true” and “which norms are right.” Here one would have difficultly imagining that

two parties in conversation could disagree about the topic of their discourse, and so it was not such a

stretch to think that a principle like (U) could be a taken-for-granted feature of the discourse, tacitly

accepted by all parties. But in later work when he begins to specify as the topic of a discourse thins like

“norms that can be justified if and only if equal consideration is given to the interests of all”(BFN 108)

then it becomes obvious that the rules of discourse are no longer doing much work. Furthermore, one

can well imagine people carrying on a perfectly intelligible debate about a particular norm, despite

disagreeing about what the topic of the discourse is. One person might consider the question ethical,

while the other might consider it moral. In this case, it is either question-begging or dogmatic to say

that a principle like (U) is implicit in the discourse.

Some of Habermas's later pronouncement have also exacerbated the rather general unease, felt

by many readers, that the “rules of discourse” were being gerrymandered to produce the moral

principle that Habermas wanted to get out of them. In order for discourse ethics to become a genuine

research program, it is essential that there be some clear, independent specification of what counts as a

“rule of discourse.” Ad hoc reflections about what people seem to take for granted when they are

arguing with one another are not sufficient, as it is always open to the critic simply to deny that these

things are taken for granted, or claim that they could be dropped. For example, it may be a “rule of

argument” in a particular context that people have to put up their hand if they wish to speak, but

obviously there is nothing essential about this. Yet what makes a rule like “everyone is allowed to

introduce any assertion whatever into the discourse” (MCCA 89) any different? Robert's Rules of Order

override this rule (debate is restricted to the motion currently on the floor). Does this mean that these

sort of formal rules of procedure worsen, rather than improve, our everyday practices of

argumentation? Something more than just an intuition about what rationality requires is needed to

answer this question.

In order to make any progress, it is necessary to reconnect the theory of argumentation with the

analysis of linguistic meaning. The objective should be to show that certain practices of argumentation,

or structural features of the social practice of justification, are transcendentally necessary, because they

are internally connected to the meaningfulness of linguistic expressions. This connection to language

would provide a principled basis for distinguishing an ur-practice of argumentation from any of the

more specialized discursive practices that we develop for dealing with particular contexts or topics. The

discourse ethics project, as a general account of the way that language biases cultural reproduction,

should be focused on this ur-practice.

According to one influential school of thinking in the philosophy of language, the meaning of

utterances is given by their inferential articulation – by the “move” that they can be used to make in the

“game of giving and asking for reasons” – the set of commitments and entitlements that authorize

them, and the set of commitments and entitlements that they, in turn, entail. In order for these sorts of

pragmatic antecedents and consequences to confer meaning, however, there must be something like a

generic practice of reason-giving shared by all competent speakers. Furthermore, certain of the rules of

this practice seem to be of the sort that are highly relevant to morality. Robert Brandom considers it an

important feature of assertion, for example, that any content that is asserted becomes interpersonally

available, for use by anyone as a premise in further inferences. This is in part what guarantees that

concepts mean the same thing, when used by different people. Furthermore, speech acts put forward by

different individuals are tied together through very complex webs of anaphoric linkages, which allow

individuals to stipulate coreference between, for example, their use of a name and someone else's.

These sort of linkages are what underlie our concept of objectivity, and what allow us to express

disagreements about some thing, where we all understand what we are talking about, despite

disagreement about its properties or even the correct description under which it should be picked out.

All of this is possible because of the fully symmetric reversibility of roles within the game of giving

and asking for reasons.

Brandom offers the following as a descriptive account of the practice underlying ascriptions of

objectivity:

Its symmetry ensures that no one perspective is privileged in advance over any other. Sorting out

who should be counted as correct, whose claims and applications of concepts should be treated as

authoritative, is a messy retail business of assessing the comparative authority of competing

evidential and inferential claims. Such authority as precipitates out of this process derives from

what various interlocutors say rather than from who says it; no perspective is authoritative as

such. There is only the actual practice of sorting out who has the better reason in particular cases.

(MIE 601).

Brandom makes no effort to show that this is a necessary feature of our discursive practices. He

takes it as given that the game of giving and asking for reasons is characterized by symmetry and

reciprocity of roles, then goes on to show how the semantic content of utterances could arise from the

inferential relations between assertions within this game. Mark Lance and Rebecca Kukla, in

developing their “pragmatic topography” of the space of reasons, have a similar analysis of the force of

what they call “agent-neutral outputs” of speech acts such as assertions. In this case, however, they

consider more explicitly the question of why “all agent-neutral inputs and outputs have exactly the

same, completely universal scope”(196). If this were not so,

[T]hen there would be normatively responsive, discursive agents from whom we were utterly

discursively cut off. This would mean that we could not hail these agents with vocatives, nor

receive acknowledgements from them. It seems we should take it as a defect in our discursive

practices if we cannot use our language to acknowledge and engage people who are, in other

contexts – or other worlds, perhaps? – perfectly acknowledgeable and engageable. The defect

would appear to be both moral and linguistic: a language that cannot be used to hail everyone

who is hailable seems to have fewer resources than it ideally should; more important, the

speakers of such a language seem to be missing a morally significant capacity to respond to some

agents who are in fact genuine, normatively responsive, discursively able moral persons, as such.

These persons would have to inhabit a different world from us.(YL, 198).

Both of these analyses suggest that there is something non-arbitrary about the way that our

discursive practices equalize the status of all participants. This, in turn, seems pregnant with

implications for discourse ethics. Two immediate avenues of inquiry suggest themselves: first, to offer

a more complete account of the game, in order to show more carefully how the symmetrical features of

argumentative roles are tied to the possibility of shared linguistic meaning across individuals; and

second, to imagine some type of asymmetric practice, and then show how in greater detail how this

would impede the ability of such a practice to confer meaning upon expressions. The objective would

be to produce an argument similar to Brandom’s transcendental-pragmatic defense of subject-predicate

structure of sentences (and hence, of the existence of objects). His ambition is not to show that a

language without this feature would be impossible, but that it would be expressively impoverished, to

the point where it could not support the type of cognitive operations that we take for granted in

everyday reasoning. A similar argument could be developed – indeed, is intimated by Lance and

Kukla’s analysis – with respect to the symmetry conditions and equality constraints that characterize

the practice of argumentation.

2. Studies in experimental game theory have shown that a variety of different forms of “cheap talk” –

communication that has no obvious bearing on the payoffs of the game – can promote cooperation in

prisoner’s dilemma (or public good) games. Allowing the players to communicate directly with one

another increases cooperation, even in case where they don’t use this as an opportunity to make explicit

promises. Also, having the experimenter come in and simply order the players to cooperate

dramatically increase cooperation, even when there is no instrumental incentive to comply with the

imperative.35 All of these deviations from instrumental rationality are consistent with what the theory of

communicative action would predict. There are, however, other explanations available. For example,

there may be a background norm that requires cooperation, which communication only serves to

activate or make salient.36 A more interesting study, from the perspective of discourse ethics, would be

to look at the matter from the standpoint of cultural evolution, and see whether reliance upon explicit

communication a medium of transmission tends to promote cooperation.

There is already an extensive theoretical literature on the evolution of cooperation in the human

species. There are two main camps. First, there are those who think that human ultrasociality can be

explained using an ordinary Darwinian account of human biology – that we possess some sort of a

tweak, similar to haplodiploidy among social insects, that makes us willing (or able) to cooperate in

large groups. The second are those who believe that human cooperativeness is a cultural pattern. Thus

our capacity for cumulative cultural inheritance would be explained through an ordinary Darwinian

account, but then cooperativeness could be explained as a late – and from a biological perspective,

unforeseen – consequence of the dynamics of cultural evolution. There are, however, still good reasons

for thinking that cooperation will have difficulty surviving as a cultural pattern, since it is vulnerable to

free riders in much the same way that altruism is in the biological realm. Thus an interesting literature

has sprung up, focused on the sort of biases that may exist in the realm of cultural transmission, that

may explain why cooperation does better as a cultural pattern than it does as a biological one.

The most carefully worked out hypothesis, advanced by Boyd and Richerson, is that a

conformist bias in the way that people select a cultural model for imitation amplifies the effects of

group selection, and thus makes cooperation a more successful pattern in the domain of cultural

reproduction. Other proposals have been made. Shaun Nichols, for instance, has argued that our more

primitive altruistic impulses take the form of moral sentiments, which then serve as a set of content

biases that affect cultural evolution. Social norms that have positive “affective resonance” (e.g. that

prohibit actions that evoke negative affect) are more likely to be reproduced than others that are neutral,

or that have negative resonance. It would be relatively easy to formulate the central idea of discourse

ethics as an hypothesis with respect to this literature. Language could be seen as a source of formal bias

in the direction of increased symmetry and reversibility of roles, which would in turn reduce free-riding

and thereby promote cooperation. (Reformulation in such terms would also provide some useful

discipline for discourse ethicists, forcing them to specify with much greater precision which features of

linguistic practice are thought to have broader relevance for the reproduction of norms.)

One of the striking features of the existing accounts in the “evolution of cooperation” literature

is that almost nothing is said about the role of language in cultural reproduction. Yet obviously it plays

an important role. It would be particularly interesting to look at differences between imitation and

communication as mechanisms of cultural transmission. One can even imagine experiments designed

along such lines. Just as experimental game theorists have carefully investigated the impact that

communication can have on interactions between individuals, one could design experiments that would

test the impact of communication on the reproduction of social norms across “generations.”

Evolutionary psychologists, for instance, have designed a variety of experiments somewhat akin to the

“broken telephone” game, in order to identify patterns of corruption in the transmission of information

– what gets remembered, what gets forgotten, and when things are “misremembered,” how exactly they

get misremembered. They have been able to extract from this useful insight about the way that our

minds categorize and encode information. This has been used to formulate provocative theories about,

for instance, cross-cultural similarities in the structure of religious ideas (or superstitions).37 One can

imagine an experiment along these lines, designed to see what sort of modifications of a practice are

made, when composition of the group changes over time, and new members have to be initiated

through a verbal explanation of the rules. Of course, neutralizing the force of background social norms,

in order to focus on the effects of communication specifically, would be difficult. The point here is

simply that it would not be difficult to operationalize the central ideas of the discourse ethics project in

order to motivate an empirical research program.

3. Most moral philosophers believe that morality has the structure of what Annette Baier referred to as

a “normative theory,” viz., “a system of moral principles in which the less general are derived from the

more general.”38 One of the most striking features of Habermas’s middle period work is his inversion of

this schema. According to this view, articulated most clearly in The Theory of Communicative Action,

Durkheim was right in claiming that philosophers have taken “for the base of morality that which is in

fact only the summit.”39 “Morality” is to be found first and foremost in the lifeworld, in the

(unsurveyably) vast background of taken-for-granted norms that structure and regulate mundane soc

al interactions. The norms do not depend upon more abstract, general principles. On the contrary, the

latter are elements of expressive vocabulary, in troduced by philosophers in order to talk about (and, oft

n, to criticize) our everyday system of normative obligations. Thus moral philosophy, according to thi

earlier understanding, is an exercise in expressive rationality. This is why the (U) principle, in its ori

inal formulation, is not presented as though it added anything to our everyday understanding of mor

lity. It is intended to be a cons ervative extension of our moral discourse.

Outside the realm of moral theory, the paradigmatic example of this style of analysis is the

prosentential theory of truth, which suggest that truth is not a property possessed by beliefs and

assertions, but is rather a piece of expressive vocabulary, introduced in order to facilitate our talk about

beliefs and assertions. Habermas was moving in a similar direction, with his quasi-deflationary analysis

of predicates such as “ought” and “is right.” His later reinterpretation of (U) as a more substantive

moral principle, however, undermined much of this analysis. Furthermore, it led many of his

interpreters to regard discourse ethics as a “normative theory” of the conventional type, with the more

specific norms all derived from, and logically dependent upon, the more abstract universalization

principle. A reboot of the discourse ethics program would involve a return to the earlier, Durkheimian

analysis of the status of lifeworld norms, combined with a renewed and more vigorous attempt to

provide an expressive analysis of moral vocabulary. This would have two elements. First, the

pragmatic-logical analysis of moral predicates could be taken up more seriously, and the discussion

integrated with previous work done in deontic logic on the permissible/obligatory predicates. Concepts

such as “happiness” and “the good” also seem ripe for an expressive analysis (on analogy with the way

that “utility” has been transformed into an expressive concept in modern decision theory). The second

component would be an analysis of more substantive moral concepts as products of second-order

categorization, or generalization with respect to first-order norms. Morality, according to the

Durkheimian view, is a complex cultural artifact, not unlike a natural language. The only way to really

learn either one – with all of the relevant nuances – is to be socialized into the appropriate form of life.

Learning through explicit instruction is not impossible, but it is much more difficult. As a result, when

doing so we naturally look for rules, which will help us to reduce the amount of brute memorization

required. We can develop some fairly robust generalizations about, for example, how French verbs are

to be declined, or what the gender of French nouns will be, or how they will be pluralized. But there are

still irregularities (What is the plural of “hibou”? Is “avion” masculine or feminine? How does one

decline “fuir”?) There is no reason to expect that every case will be subsumable under some general

rule, simply because natural languages are not learned as a system of general rules. At the same time,

there is good reason to expect that some generalizations will be possible, simply because languages are

subject to all sorts of pragmatic constraints. In particular, they need to learnable, and if they become too

complex they will be corrupted, with the more simplified variant being passed on.

The same model is useful for understanding how general moral principles can arise. We are able

to make fairly robust generalizations about “what we owe to one another” because social norms are

also subject to pragmatic constraints, and arise in response to many broadly similar pragmatic

circumstances. Many norms, for instance, resolve collective action problems. Indeed, forming queues,

telling the truth, taking turns, and refraining from violence, littering, theft, and public obscenity, are all

ways of acting that help us to avoid (inter alia) getting into collective action problems. Thus the Pareto-

principle is going to offer a fairly robust characterization of these norms. But this is not because the

Pareto-principle is such a compelling moral idea and these other norms are derived from it – that

analysis is exactly backwards. It is because the norms respond to a particular type of problem, and the

Pareto-principle is formulated at a level of generality suitable for describing that problem, and thus,

articulating an important of aspect of each norm that has arisen in order to regulate problems of that

type.

One can see a similar logic underlying principles of equality. In the case of norms that regulate

collective action problems, there is a strong pragmatic reason for wanting to get agreement (i.e., to

achieve the benefits of cooperation), combined with fundamental indeterminacy about which particular

Pareto-improving arrangement is to be adopted. Indeed, conflict over distributive shares can easily

undermine the entire cooperative scheme, leaving everyone worse off that they would have been, even

under highly unfavorable distributive arrangements. Thus any sort of arrangement that minimizes this

sort of conflict is likely to find favor. For example, any normative regulation that eliminates whatever

incentive people may have to “switch places” with someone else eliminates one obvious source of

objection to the proposed system of cooperation. (Even if this were not widely known, it would

probably be rediscovered by each new generation of parents, trying to serve food to their fractious

children.) Thus again, it is no surprise that one can find a norm of “equality” implicit in a wide range of

institutions, since equality achieves exactly this sort of conflict-minimization. Indeed, particular

specifications of the principle of equality, such as envy-freeness, come very close to being a direct

articulation of the “no place-switching” constraint.

In both of these examples, abstract moral principles articulate recurrent structures in our system

of first-order moral norms. A reinvigorated discourse ethics program could press its claims by

developing an expressive analysis of various normative ethical theories, in order to show how these

rival accounts of morality commit the error of hypostatizing expressive vocabulary.

4. When Habermas first formulated the discourse ethics program, the suggestion that moral

philosophers should study the work of moral psychologists, and even derive “indirect confirmation” of

their theories from their ability to reconstruct the findings of the latter, was unheard of. Since then,

however, experimental philosophy has become all the rage, perhaps nowhere more so than in the area

of moral philosophy. Yet where are the discourse ethicists in these discussions? At the moment,

discourse ethics as a philosophical view is completely unrepresented in the debates over empirical

moral psychology. Humeans, on the other hand, have been all over it, trying to find support for moral

sentiment theory.40 This is unfortunate, because there is all sorts of empirical work that is supportive of

Habermas’s ideas, but has lain fallow, because of the waning interest of discourse ethicists in empirical

corroboration of their theory.

The problem obviously arose due to Habermas’s enthusiasm for the work of Lawrence

Kohlberg, whose research program was, even at the time, on the wane amongst psychologists. In order

to recover this dimension of Habermas’s project, it is useful to remember, first, what Habermas thought

he could get out of the Kohlberg program, and second, why Kohlberg’s program suffered from the

decline that it has among empirically-minded psychologists. Only then can one determine the extent to

which this decline affects the discourse ethics program.

Most philosophers assume that the decline of Kohlberg’s program was due to Carol Gilligan’s

critique, in particular, the accusation that it was gender-biased in its emphasis on impartial judgment

over relational care. If anything, this actually reveals one of the dangers of “experimental philosophy,”

or of philosophers looking to empirical research for confirmation their theories. While it is no doubt an

exaggeration to describe philosophy as the “Department of Data-Free Speculation,” it certainly would

not be unfair to say that philosophers have very little of what scientists call “respect for the evidence.”

And even when they do try to pay some attention, they typically lack the training required to provide

any sort of assessment of the evidence (for example, the quality of the studies under consideration).

One could see this very clearly in Gilligan’s claims, which were presented with what can only be

described as a near-total lack of evidence. The immediate contestation of Gilligan’s claims, and the

subsequent debate it provoked, was for the most part ignored in the philosophical literature.41

Thus if Gilligan’s critique had been the only one forthcoming, Kohlberg’s program might still

be going strong. Furthermore, it should be noted that Gilligan’s own model shares several of the

essential features of Kohlberg’s, viz. it is a hierarchical stage model, positing a developmental

sequence, with particular emphasis on explicit moral reasoning. What truly undermined the Kohlberg

program were a set of studies that challenged precisely these features. Central to Kohlberg’s view (and

Jean Piaget’s before that) was the idea that children start out conforming to moral rules for instrumental

reasons, in order to avoid punishment. They then move on to a stage of conventional moral reasoning,

where they follow the rules largely out of a conformist attitude toward social expectations. It is only

later that some individuals adopt a “postconventional” stance, and begin to treat the rules as having

more of a pro tanto status (and are therefore able to deploy more sophisticated cognitive resources

when trying to resolve problems involving a conflict between norms.) What Eliot Turiel and others

managed to show, however, is that very young children draw a distinction between moral norms and

conventional social obligations.42 For example, when asked whether it would be okay to hit another

child, if a parent or teacher said it was okay, most said that it wasn’t. Whereas when asked whether it

would be okay for a boy to wear a dress, if the parent or teacher approved, most agreed that it would.

This challenged Kohlberg’s analysis, by showing that children, technically at a preconventional level,

nevertheless deploy conventional and postconventional ideas in their thinking, depending upon the

specific content of the norm under consideration. This led Turiel to the (surprisingly strong) conclusion

that children are deploying completely different resources when they follow moral and when they

follow conventional rules (and thus it makes no sense to think that children go through a stage of

treating moral rules as conventional, the way Kohlberg suggested they do).

There has also been a growing scepticism about the idea that moral reasoning plays a causally

efficacious role in moral action. This is partly due to research on confabulation, which shows that

individuals can be tricked into producing “intentional” accounts of their own behavior that are

completely false, and yet they are unable to determine through introspection that they are doing so.

This has led to the suggestion that moral judgments may be purely emotional, or “system one”

responses, which the individual then rationalizes through the production of some chains of supporting

reasons.43 One study on reactions to violations of the incest norms shows subject grasping at straws,

trying to produce some reason to support their moral judgment, which is obviously motivated by the

“yuck” response they have in response to the scenario.44

This is obviously a problem for Kohlberg. For discourse ethics, on the other hand, the

implications are more ambiguous. Taken in a somewhat moderated form, it suggests that Durkheim was

right about where the “base” and the “summit” of morality were to be found. Most of the norms that we

follow are part of the lifeworld. They are taken-for-granted, and so individuals are easily dumbfounded

by requests for justification. Jonathan Haidt takes this to show that they are based on emotional

reactions, but this is generally acknowledged to be too quick an inference. The fact that individuals

don’t have ready justifications is perfectly consistent with a wide variety of views – although not all.

The question, from the standpoint of discourse ethics, is whether they are able to construct these

justifications – and more importantly, whether this process of justification is entirely epiphenomenal

(i.e. confabulatory), or whether it leads to changes in the normative response.

On the other hand, the claims made by Turiel about the difference between conventional and

moral norms is a direct challenge to the discourse ethics project (at least in the “rebooted” version that I

am proposing). Thus discourse ethicists should join the effort, undertaken to Nichols among others, to

debunk this specific claim.

Summary

What I have sketched out above are not arguments in support of a discourse-ethical approach to

moral philosophy, they are merely leads, potential avenues of inquiry. Each one would need to be

fleshed out much further, in order to make a meaningful contribution to the debate. Personally, I have

some reservations about how successful any of these efforts will be. My own view is that discourse

ethics overestimates the centrality of communication for the reproduction of norms, and downplays less

cognitive mechanisms, such as imitation (a view that I have expounded at greater length elsewhere45).

At the same time, I think that it brings an important set of issues to the table, one that should be taken

more seriously than they have been, both by moral philosophers and by social scientists. My goal in

this paper has not been to lend support of any of the specific claims made. What I hope to have

provided instead is a recipe for transforming discourse ethics into a proper research program in

philosophical ethics, rather than simply remaining a subgenre of secondary literature on Habermas.

1 It also took the form of blocking the translation into English of the paper in which the idea is presented (precisely for this reason). Original quote: OPSI, 97.

2 Ref. to there he says “that I once tried to explicate using the idea of an ideal speech situation.” 3 see Mattias Kettner “The Disappearance of Discourse Ethics in Habermas’s Between Facts and Norms,” Discourse and

Democracy.4 MCCA, p. 119.5 H on Buhler’s model.6 David Lewis, Convention.7 Hobbes wrote: “The bonds of words are too weak to bridle men's ambition, avarice, anger, and other passions, without

the fear of some coercive power.” Habermas denies that they are too weak, but he recognizes that they are not all that strong: “Precisely insofar as social integration has more and more to be secured via communicatively achieved consensus, there is a pressing question as to the limits of the integrative capacity of action oriented to reaching understanding, the limits of the empirical efficacy of rational motives,” TCA 2: 110-11.

8 “The liberated subjects, no longer bound and directed by traditional roles, have to create binding obligations by dint of their own communicative efforts (PNK, 231).

9 Aquinas on stones dropping. 10 Thus the view could be characterized as a species of “internal realism”.11 Examples? Sher would be one.12 Andy Clark.13 For an excellent analysis, that emphasizes the link between discourse ethics and Habermas's theory of modernization,

see J.G. Finlayson, “Modernity and Morality in Habermas's Discourse Ethics,” Inquiry, 43 (2000): 319-340.14 See Heath, “Habermas and Analytical Marxism”.15 Theorie des kommunikativen Handelns appeared in 1981, Moralbewußtsein und kommunikatives Handeln in 1983.16 Freeman.17 A priori of comm. Community, Mendieta, p. 38.18 (Wahrheitstheorien, MCCA, p. 63)19 Logi Gunnarsson has argued that it is compatible with consequentialism, Making Moral Sense (Cambridge: Cambrdige

University Press, 2000), pp. 114-117.20 Alan Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1978), p. 135.21 “On the Cognitive Content of Morality,” p. 357

22 He writes, “The moral principle performs the role of a rule of argumentation only for justifying moral judgments and as such can neither obligate one to engage in moral argumentation nor motivate one to act on moral insights.”(JA 33).

23 He writes: “The social reality that we address in our regulative speech acts has by its very nature an intrinsic link to normative validity claims”(Mcca, 61).

24 Twice in MCCA, also “On the Cogntive Content,” p. 354.25 Thus Habermas writes, contra Apel, “Demonstrating the substantive normative presuppositions of argumentation is by

no means sufficient to reveal the foundational interretlation of discourse, action oriented toward reaching understanding, and the lifeworld; that is a matter for a formal pragmatic analysis of language, not for moral theory.”(JA 77).

26 It is helpful on this point to compare Habermas and Scanlon. Scanlon suggests that his principle of reasonable rejectability is grounded in nothing more than a desire, on the part of agents, to act in ways that cannot be reasonably rejected by others (quote from Williams & Sen volume). This raises obvious skeptical problems (what if someone doesn’t have that desire? Or happens to have a desire to maximize aggregate utility instead?) Habermas provides something equivalent to that desire, accompanied by something like an explanation for why we can expect everyone to have it – insofar as they are rational, i.e. language-using.

27 See Reply to Skjei28 JA, p. 6.29 Thus Kettner talks about the vertical bifurcation of discourses (into justification and application) and the horizontal (into

moral, ethical and pragmatic).30 Problems have been nicely laid out by Mathias Kettner (who seems to be one of the few to have noticed how

incompatible the BFN-era work is with the TCA-era). Even Habermas’s ardent defenders don’t defend this distinction. (Abizadeh, p. 200). See also CARC.

31 Rehg, “Discourse and the Moral Point of View: Deriving a Dialogical Principle of Universalization,” Inquiry.32 See, for example, Uwe Steinhoff, The Philosophy of Jurgen Habermas: A Critical Introduction.33 This is why Habermas had reservations about the British response to Sutteeism in India. See Jurgen Habermas, “Life-

forms, Morality and the Task of the Philosopher,” Autonomy and Solidarity, pp. 201-5. See Marie Fleming, Emancipation and Illusion (Philadelphia: Pennsylvania State University Press, 1997), p. 105.

34 See Communicative Action and Rational Choice.35 Sally, D., 1995. Conversation and cooperation in social dilemmas. Rationality and Society 7(1), 58±92.

36 ck. Bicchieri.37 Pascal Boyer.38 Annette Baier, Postures of the Mind (Minneapolis: Univeristy of Minnesota Press, 1985), p. 232.39 Emile Durkheim, Les Règles de la méthode sociologique, (Paris: PUF, 1998), p. 24 (my translation).40 Joyce, Nichols, Prinz.41 Lawrence Walker, “Sex Differences in Moral Reasoning: A Critical Review,” Child Development, 55 (1984): 677-691,

Baumrind, D. (1986), "Sex Differences in Moral Reasoning: Response to Walker's (1984) Conclusion That There Are None", Child Development, 57, pp. 511-21; Walker, L.J. (1986), "Sex Differences in the Development of Moral Reasoning: A Rejoinder to Baumrind", Child Development, 57, pp. 522-526. For philosophical discussion, see Flanagan Jr., O.J. & Jackson, K (1987), "Justice, Care and Gender The Kohlberg-Gilligan Debate Revisited", Ethics, 97, pp. 622-637.

42 See Eliot Turiel, The Development of Social Konwledge: Morality and Convention (Cambridge: Cambridge University Press, 1983).

43 Haidt, Greene.44 Prinz.45 Joseph Heath, Following the Rules (New York: Oxford University Press, 2008).