Distinguishing Between Legal and Moral Norms

Abstract

Criticizing Theodor Adorno and Max Horkheimer in The Philosophical Discourse of Modernity, Habermas noted that "the Dialectic of Enlightenment does not do justice to the rational content of cultural modernity."' This rational content includes, Habermas continued, the universalistic foundations of law and morality that have also been incorporated (in however distorted and incomplete a fashion) into the institutions of constitutional government, into the forms of democratic will formation, and into individualist patterns of identity formation.2 Readers familiar with Habermas's other work will recognize a brief bibliography in this list of modernity's rational contents. The last item, identity formation, has been taken up in Habermas's discussions of Mead and individuation, and moral consciousness;3 the foundations of morality were discussed in his works on discourse ethics;4 and democratic will formation and constitutional government are elaborated in his most recent opus, Between Facts and Norms.5 But we can also discern a puzzle in this formulation-for Habermas, the distinct realms of law and morality, of legal and moral norms, share universalistic foundations at the core of the rational content of modernity. What, then, is the relationship between law and morality, according to Habermas? One ofthe central tasks of Between Facts and Norms is the explication and specification of the complicated relationship that obtains between legal and moral norms, and hence, between law and morality. This relationship lies at the heart of Habermas's positive vision of modernity and his project of critical theory, and clarifies and elaborates his vision of a discourse ethics. As Alessandro Ferrara has described, Habermas's articulation of his discourse ethics has developed through four periods. Between Facts and Norms marks the fourth, contemporary period, in which the distinction between law and morality is most fully elaborated, and "the process of upgrading and integrating the ethical realm within Habermasian theory finds its completion."6 In this essay, I will elaborate the relationship between legal and moral norms as presented in this book; as Ferrara notes, this relationship sheds light on Habermas's broader discourse ethics as well as on the tension between facticity and validity which underlies the legitimacy of legal norms. Between Facts and Norms is, to put it modestly, an imposing work; it attempts to give a discourse-theoretical justification for the basic constitutional principles and systems of modern democratic societies, and to integrate philosophical discussions of the normative aspects of law with sociological emphases upon law's positivity and facticity. The text consists of three major parts. The first two chapters constitute an introductory part, in which the tensions between the philosophical and sociological viewpoints, and between the validity and facticity of law, which will frame and focus the rest of the book's argument, are presented. The second part, chapters 3 through 6, explores the internal aspects of the tension between facticity and validity in law. Habermas does the most significant work of the book here, and I shall focus on these chapters in the course of my exposition. In the third, final part, chapters 7 through 9, Habermas turns to the external aspects of the tension between facts and norms. In these chapters, he develops the seeds of a proceduralist theory of democracy. Law and morality stand, Habermas tells us throughout Between Facts and Norms, in a complementary relationship ( 106, for example). Understood correctly, this complementary relationship entails that moral norms are not superordinate to legal norms, and that the difference between moral and legal norms is neither simply a question of contexts of justification and application nor a distinction between private and public norms. In order to explain what this complementary relationship is, I will first present Habermas's derivations of legal and moral principles, and will then discuss three features which distinguish legal from moral norms, These differences include the scope of moral and legal norms, their functional efficacy, and their differing kinds of validity. …