Respect for Consent The Nature and Scope of Consent in Moral Theory January 2003: www.freewebs.

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This paper intends to provide an analysis of the principle of universalization as used in the moral theory of Immanuel Kant and Jurgen Habermas to justify moral norms and principles. The general idea is to examine the theoretical features of moral justification in order to argue in favour of recognizing respect for the informed consent of individuals as a logical property of moral reasoning.

The thesis begins with a description of the core conceptual components of Kants conception of the principle of universalization and Habermas transformation of that principle. The transformation of the principle reflects the necessity of agreement, participation and consent in the construction of moral propositions. This paper attempts to follow the transformation of Kants principle of universalization with a view toward attributing innovations, pointing to contradictions, comparing descriptions, and mapping transformations between Kant and Habermas.

Kant constructs a moral point of view based on ideas of reciprocity and equality to determine a category of moral principles that form a fictional realm of ends. The categorical imperative operates to justify principles on grounds equally valid for everyone. Habermas criticizes Kants conception of validity and replaces it with a discursive justification based on common interests and grounds equally acceptable to everyone. The transition from a unilateral monological justification of moral principles to a dialogical consequential analysis introduces a key element of moral reasoning that is respect for the participation and consent of all individuals, the inclusion of the other.

Although Habermas uses the universalization principle for the purpose of justifying the content of discourse ethics, the principle demonstrates reliance on notions of equal respect and respect for the consent of others. The principle is characterized by the attempt to achieve universal consensus based on assumptions of common interests and acceptable consequences for each participant. The principle of universalization sets out the conditions of agreement necessary to achieve a consensus in a norm setting discourse and presupposes respect

for the consent of others, to let people decide for themselves what agreements they intend to make binding without coercion or deception.

The argument that consent is a logical property of moral reasoning is based on Habermas modification of Kants construction of the categorical imperative into a principle that relies on agreement achieved through discourse. This paper attempts to focus on the features of the principle of universalization and the limitations implicit in Habermas reformulation. Respect for consent is viewed as a presupposition of Habermas moral reasoning as well as being a logical consequence of such reasoning in the determination of moral norms or principles. Although, I argue it is a presupposition and a consequence, its justification lies in recognition of a common interest and an unavoidable feature of cooperative argumentation.

In the attempt to determine what principles of moral reasoning are acceptable to everyone, the principle of respect for consent stands out as the operative principle in such a conception as well as a likely candidate for acceptability based on common interests and acceptable consequences. I argue that an application of Habermas moral justification suggests that what is acceptable to everyone is that we grant each other equal respect, a general proposition that entails providing space for each individual to determine independently what moral propositions they support or disparage. As the key feature of moral agreement such a conception deserves recognition and a special place in moral reasoning because it serves as the bond between agreements that establish all other moral propositions. Opposition to the general recognition of the moral principle to respect the consent of others is considered to be an argument that opposes self-government, a position at odds with moral reasoning.

Based on the reasoning that the operative principle underlying the use of the universalization principle is the recognition of the need to achieve the agreement, assent, or consent of participants in the determination of moral norms, it is a short leap to suggest that actual informed and uncoerced consent of each participant is the key feature. The consequences of such a view suggest that public authority needs to address standards that are capable of generating the actual informed and uncoerced consent of the most participants possible in order to provide support for norms adopted in the regulation of society.

Both Kant and Habermas attempt to justify claims of necessity for particular propositions, they claim such propositions are binding on everyone. In the search for moral propositions acceptable to everyone the most likely candidate for justification is a notion of equal respect based on a principle of informed consent. I suggest that informed consent is a key feature of the principle of universalization and that it entails logical limitations on propositions that rely on agreement for justification. Implicit in the recognition of respect for consent is a logical limit on binding moral prescriptions, they are limited by the nature of the agreement relied on to justify the moral proposition. Entailed in such a position is the claim that moral principles are only binding on those that agree to adopt them for as long as such an agreement exists.

Introduction to Kant

In the works of Immanuel Kant, the will is said to bind itself to the dictates of reason because it recognizes the foundations of morality in the universal form. (Everyone all the same). I will attempt to demonstrate that such a proposition has been generally transformed in current moral thought to represent the process by which the will agrees to act in accordance with reasons because it is persuaded by logic or at least the force of the better argument to adopt moral norms based on reciprocity and equality. (The same to me as you, and everyone all the same). Much of what Kant attempts to do within moral theory is to demonstrate the binding necessity of laws of freedom that restrict moral action to principles universally valid for everyone. Habermas transformation of Kants conception emphasizes the role of participation and consent in the construction and adoption of social norms in practical discourse rather than practical reasoning. I argue that equal respect for the autonomous decisions of others is the key feature of such a transformation which as a consequence entails letting informed individuals choose for themselves what principles or actions they agree to adopt or not.

Kant intended his critical examination of practical reason to lay the foundation for the supreme principle of morality in the form of the categorical imperative.1 The ground of obligation represented in his moral law was to

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

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

be constructed solely from a priori concepts free from empirical explanations connected to the phenomenal world of sense/appearance.2 For Kant, the determination of the will as commanded by duty has its origin in the use of practical reason inseparably connected to the concept of a free will. Within a pure practical philosophy, as opposed to an applied practical philosophy, he asserts the possibility of a pure will separate from the actions and conditions of human volition tied to empirical or sensual motives. Properly called a metaphysics of morals his investigations were based on assumptions relating to the faculty of reason which dictated objective moral laws existing within an intelligible order of things purged of empirical objects or sensuous motivations.

The faculty of reason

One of Kants contributions to philosophy was the suggestion that reason was a psychological process rather than a transcendental object. In the Critique of Pure Reason, Kant constructs an idea of reason linked to the formation and use of principles within the faculty of understanding. In the language of Kant, the faculty of understanding is used to produce a unity among phenomena according to rules of perception. The faculty of reason is used to produce a unity among the rules of understanding according to principles. The domain of the faculty of reason then, is composed of knowledge of principles.3 Principles are general propositions that prescribe a course of action for particular situations and such prescriptions are sometimes considered to create corresponding duties. Such reasoning lays the foundation for the claim that our actions may be based on, conform with, or breach moral principles or duties derived from the faculty of reason.

Kant makes a distinction between practical and theoretical reason to demonstrate categories of reason that operate in human cognition. Practical reason is concerned with our conduct or actions, including moral conduct, while theoretical reason is concerned with objects of cognition.4 Theoretical cognitions express what is, referring to the world of appearance, while practical cognitions express what ought to be, they aim to bring an object of our thought into being though a particular action. Practical cognitions contain principles or imperatives that have 2 Ibid, p.81.

3 Kant, Immanuel. Critique of Pure Reason. Trans. F. Max Muller (Anchor Books, NY) 1966. pp.225-226. 4 Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. p.15.

a use value. They are practical in content because they are concerned with our conduct or actions. Instrumental reason is an example of practical reason that considers the relationships between cause and effect.

Under Kants analytic system of reasoning, the faculty of reason is concerned with material causality in respect of objects in the world of appearance and the intelligible world. In the words of Kant, practical reason is concerned with the determining ground of the will either in bringing forth objects in the physical world corresponding to conceptions (instrumental action) or in the case of pure practical reason acting on principles of volition in the form of autonomous self-determination.5 Either way, practical reason is a faculty that is used to guide people toward objects and the satisfaction of needs. This is what Kant meant by reason acting as a psychological process.

For Kant, a human agent is rational because they are conscious of the fact that the faculty of reason may be used to harmonize activities with the laws of nature and the laws of freedom. The capacity of the will to conform to a conception of certain laws, i.e. according to principles, is a necessary condition of what it means to be rational.6 In other words, a rational agent is a person who is able to recognize the laws of nature and who acts in accordance with those laws. For Kant, nature appointed reason as the ruler of our will. The will in such a view is a form of causality that is synonymous with practical reason to the extent that it is in harmony with the fulfillment of a practical purpose.

For example, the basic axiomatic rules or practical laws of geometry and mathematics are taken to demonstrate the necessary aspect of objective rules that reason understands as fundamental laws, such as two points make a line, or a triangle has three angles. According to Kant, this understanding necessarily determines the will of an agent through the recognition of the unconditional form of the law unrelated to any particular subject matter. 7 By analogy in moral theory, a rational agent may act in accordance with laws that are unconditional, (i.e. akin to

5 Ibid. p.15. 6 Kant, Immanuel. Foundations of the Metaphysics of Morals. Ed. Robert Paul Wolff. Trans. Lewis White Beck
(Macmillan Publishing Co.) 1969. see pp. 34, 51.

7 Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. p.26.

fundamental laws not determined by an object of the senses), and act on the basis of pure reason conforming to the necessary recognition of the universal form of law.

Kants moral theory

nothing can secure us against the complete abandonment of our ideas of duty and preserve in us a well-founded respect for its law except the clear conviction that, even if there never were actions springing from such pure sources, our concern is not whether this or that was done but that reason of itself and independently of all appearances commands what ought to be done. Our concern is with actions of which perhaps the world has never had an example, with actions whose feasibility might be seriously doubted by those who base everything on experience, and yet with actions inexorably commanded by reason.8

Kants moral theory is focused on the determining causes of the will. He claims that morality and the categorical imperative follow by logical necessity once freedom of the will is assumed.9 His moral theory is based on a particular construction of autonomy where the will is purged of material incentives. Kant views the will as a form of causality which when aligned with the use of reason is capable of determining itself free from foreign or external causes.10 The self-legislation of moral commands purged of material incentives is therefore the basis of all moral laws and necessary duties.11 If the law is not self-legislated then it implies some other interest or compulsion to obedience rather than a will acting free from the determining causes of the world of sense.

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

8 Kant, Immanuel. Foundations of the Metaphysics of Morals. Ed. Robert Paul Wolff. Trans. Lewis White Beck
(Macmillan Publishing Co.) 1969. p.28.

9 Ibid. p.74. 10 Ibid. p.73. 11 Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. p.33.

and not spring from the inclinations of men. Kant suggests that if there are objective categorical commands they are based on grounds that are universal and valid for every rational being. Although people are bound to act only in accordance with their own will, subject to their own legislation, he claims that the will has been designed by nature to use reason and legislate universal laws. If an agent acts in accordance with pure reason they legislate in the universal form because they recognized and respect the ultimate moral law contained in the categorical imperative. So even though the will is self-legislated, if it is to act morally it must recognize the moral law and respect it as a law.12

Conditional and unconditional motives

Kant claims that the categorical imperative involves the renunciation of all interests. Kant defined an interest as the practical motivation of reason, as a cause determining the will. He distinguished between a will that is interested in action based on principles of reason, and a will that acts from interest directed toward inclinations.13 He wants to distinguish between motivations based on material incentives and motivations purged of such considerations. It is by rejecting conditional interests and motives that Kant forms his idea of an unconditioned pure will. It is important for Kant to derive the moral law from pure reason unmixed with empirical inducements in order to distinguish between conditional motives based on material incentives or personal feelings and unconditional motives rooted in recognition of abstract principles intended to bind the will of every rational being.14

Whatever is derived from the particular natural situation of man as such, or from certain feelings and propensities, or even from a particular tendency of human reason which might not hold necessarily for the will of every rational being (if such a tendency is possible), can give a maxim valid for us but not a law; that is, it can give a subjective principle by which we might act only if we have the 12 Kant, Immanuel. Foundations of the Metaphysics of Morals. Ed. Robert Paul Wolff. Trans. Lewis White Beck

(Macmillan Publishing Co.) 1969. see. pp.50, 58. 13 Ibid. see pp. 35 F.N.#3., 57, 90, F.N.#4. 14 Ibid. p.33.

propensity and inclination, but not an objective principle by which we would be directed to act even if all our propensity, inclination, and natural tendency were opposed to it.15

Kant believes that any volition dependent on the faculty of desire could be explained by reference to the empirical conditions for its satisfaction or motivation and therefore could not be the foundation for a necessary and universal rule. He claims that practical rules that rest on subjective conditions are incapable of deriving universal rules for rational beings and without exception, according to Kant, they revolve around the principle of ones own happiness.16 Kant is opposed to philosophers who would claim that the highest duty is self-love. He is careful to make clear that his conception of duty is not derived from empirical sources and rejects claims based on conditional interests because they cannot be universalized.

The happiness of others, for example, might be an object of the will, but if it were to be the determining ground of a maxim it would presuppose a natural sympathy or disposition grounded in personal satisfaction which would be a conditional interest. Kant is unwilling to accept this conditional connection as the determining ground of a maxim because it would not coincide with his goal of legislating unconditional universal law. Instead, Kant derives the acceptance of the principle to further the happiness of others from the universalization of the maxim of self-love. Kant argues that the universal application of the maxim of self-love requires recognition of the happiness of others. In such a case, the determining ground of the will is the general form of the law and not its content, it is therefore acceptable on grounds that are equally valid for everyone.17 On this basis Kant claims it is not the happiness of others, or any particular subjective condition, but the universal form of the maxim (the happiness of everyone), that is to the determining ground of the will.

Objective principles that constrain the will operate as commands in the form of imperatives.18 These imperatives are expressed by ought statements which inform our will to act or refrain from action, although our will may 15 Ibid. p.49. 16 Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. p.34-35. 17 Ibid. p.35. 18 Ibid. p.34.

not always be inclined to obey just because we know an act to be universally good. For Kant, the more inclinations there are against performing a duty and the fewer inclinations there are in favour of its performance, the greater the opportunity to show the intrinsic worth of the commanded action through obedience to reason.

Kant explains the difference between hypothetical and categorical imperatives to sharpen the distinction. Hypothetical imperatives express the practical necessity of action as a means to achieve some other desired end, while the categorical imperative is seen as objectively necessary without regard to any other end or purpose.19 Hypothetical commands are used as a means to another end, represented by principles of skill or prudence, unlike the categorical imperative which is good in itself rather than good as a means to some other purpose, possible or actual.

The distinction is explainable as a difference between subjective and objective ends. Any practical principle that presupposes a tangible object or self-interested motivation as the determining cause of the will under the faculty of desire is deemed to be a subjective end, while any practical principle in the form of a rule that necessarily holds for all rational beings is considered objective. Subjective ends possess only conditional worth in relation to the desire or material incentive that grounds them. Kant believes that a rational being would want to be free of conditional and transitory ends because they lack absolute worth, a quality possessed by objective ends.20 Objective ends are only those ends that determine the will of itself by the mere form of the universal rule grounded in motives valid for every rational being.21 Kant argues that the universal form of the imperative binds the will through the use of reason insofar as an agent is rational and submits to universal moral laws.

Realm of ends

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

19 Ibid. p.36. 20 Ibid. see pp.24, 52-53. 21 Ibid. p.52 and Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. p.19.

belongs to an imaginary community of rational beings sharing the same standard of judgment, which Kant calls a realm of ends. The realm of ends is merely possible by analogy with a realm of nature, which is demonstrative in the absolute laws of physical necessity. Kant proposes to use a realm of nature as a practical idea for bringing about that which is not actually real but which can become real through our conduct. 22 He is careful to distinguish this idea from a teleological position which claims that a realm of nature is a theoretical idea for what is real, i.e. the kingdom of god. Each person who binds their will to reason is said to belong to a potential or fictional realm of ends insofar as they have subordinated their will to a universal objective perspective.23

According to Kant, if there is to be a supreme practical principle and a categorical imperative for the will it must be in the form of an objective principle that is necessarily an end for everyone because it is and end-in-itself. Only an objective principle can be a universal practical law. Because every rational agent thinks of their own existence as an end-in-itself and not merely as a means to be arbitrarily used by another person, Kant proposes that it may serve as the ground of an objective principle which is capable of deriving all laws of the pure will. Kant grounds this principle in the following form : rational nature exists as an end-in-itself. The law takes the form of the following imperative : Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.24

Kant proposes this principle as the supreme limiting condition on freedom of action for each person. In other words, beings who are ends in themselves are to be objects of respect and our actions toward these objective ends are to be limited by our respect. If agents want to consider themselves as rational they must share in the kingdom of ends and treat each other as rational beings who recognize the existence of rational agency as an end-in-itself.25 In this manner Kant suggests that rational beings are not to be acted upon as if they are subjective ends of another person because they recognize and respect actions that are objectively necessary. 22 Kant, Immanuel. Foundations of the Metaphysics of Morals. Ed. Robert Paul Wolff. Trans. Lewis White Beck

(Macmillan Publishing Co.) 1969. p.62 FN#17. 23 Ibid. see pp.59, 62 F.N.#17, 65-66. 24 Ibid. see pp.52-54. 25 Ibid. p.55.

Therefore, all maxims of action should consider the self and others as rational ends in themselves and should meet the condition of being universally valid for every rational being.26 To treat rational nature as an end-in-itself is to respect the idea of the dignity of humanity, as dictated by reason, separated from material advantage of the legislator. A rational agent is viewed by others as possessing moral worth to the degree that such an idea serves as the absolute and inflexible guide for the agents will.27

Categorical imperative

if I think of a categorical imperative, I know immediately what it contains. For since the imperative contains besides the law only the necessity that the maxim should accord with this law, while the law contains no condition to which it is restricted, there is nothing remaining in it except the universality of law as such to which the maxim of the action should conform; and in effect this conformity alone is represented as necessary by the imperative.28

The categorical imperative is grounded in the difference between subjective maxims derived in reference to material conditions and the idea of conformity to an objective law. According to Kant the categorical imperative excludes reference to the material of the action and its intended result in an unconditional manner. It is a law concerned with the form and the principle of autonomy purged of sensuous conditions. The categorical imperative to act only according to that maxim by which you can at the same time will that it should become a universal law is seen as an objective unconditional law that is an end-in-itself. In general it is a formula for an impartial perspective used to guide our will in the exercise of rational autonomy. The resulting practical legislation is grounded in the use of the rule (law) and the form of universality. 29 The test of a maxim is to consider whether it could enter into a possible universal legislation without contradiction. In this way a person considering the acceptability of a course of action would look at the implications of everyone acting under such a 26 Ibid. p.64. 27 Ibid. p.65. 28 Ibid. p.44. 29 Ibid. p.55.

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

Kant makes the assumption that laws of nature and laws of morals are analogous insofar as they share a universal aspect in the general form and the principle of non-contradiction. He claims that the universality of law can be properly called the general form of nature. Relying on that analogy, Kant reconstructs the imperative as follows: Act as though the maxim of your action were by your will to become a universal law of nature. 30 In order to will that a maxim should become a universal law of nature, both the maxim and the will must remain free from contradiction. Potential universal laws of action are to be tested by agents for any contradictions because a universal law may not, by definition, conflict with itself. In other words, agents test actions and maxims relying on the universal form eliminating candidates on the basis of contradiction in order to create a set of duties which conform to the supreme principle.31 The categorical imperative acts as a fundamental axiom of morality from which other universal principles may be derived on a logical basis through a systematic application of the general rule.

From Kant to Habermas

Kants categorical imperative is a method of determining moral principles capable of guiding action. The categorical imperative rules out maxims of action that are based on material interests, in favour of accepting unconditional rules of action that are equally valid for every person. The categorical imperative is rooted in the idea that equal and reciprocal rules may serve as a guide toward the construction of a realm of ends consisting of acceptable moral principles justified on the basis of grounds equally valid for everyone.

Kant takes the position that universal laws must be capable of being held as if they were laws of nature. The use of the as if indicates a willingness to imagine a realm of ends where every rational agent accepts, or is subject to, the same rules of moral action. There is no role for agreement between people or consent in Kants 30 Ibid. p.45. 31 Ibid. see p.48, 63.

theory because he assumes that reasoning by way of the categorical imperative will always end in the same result regardless of the context. Kant argues that reason itself prescribes the content of this imaginary kingdom of ends constructed from the recognition of universal laws that hold necessarily and always. However, faith is required to support the claim for the existence of objective laws that reason always points without error to the same as if laws in each and every case. Such a conception does not give enough consideration to different points of view that may result from independent consideration of moral principles from diverse perspectives. There is no guarantee that independent consideration of the maxims equally valid for everyone will disclose objective laws in each and every case.

Kant asserts that we must be able to will that a maxim of our action become a universal law and that such a law hold without contradiction. The construction of such a rule is subject to criticism that it carries the potential for paternalistic perspectives rooted in nothing more than an act of the imagination. It is likely that different groups will accept or reject different principles they consider to satisfy this condition. Debate and argumentation over which principles to accept and why would likely result. Disagreements could be rooted in consequential disadvantages that may be seen to result from the uniform application of rules, different groups may experience different and unequal outcomes. In practice, the determination of moral principles under the categorical imperative would likely lead to conflicting judgments.

Kant proposes that we act as if objective laws existed. However, there is a problem with proposing binding objective rules on the basis of asking people to act as if they were laws of nature. The appeal to act as if undermines the establishment of objective laws because these laws are contingent for their very existence on the assent of individuals. Although Kant attempts to circumvent the need for consent by relying on a theoretically infallible reason that binds the will, the use of the as if formulation demonstrates the contingent nature of moral principles that in effect must rely on the agreement of individuals for their very existence or appearance in the world. The idea of objective laws based may be infallibly determined by an appeal to the imagination must give way to the idea that moral principles are created through the social phenomena of agreement rooted in the consent of individuals giving the law itself no objective grounding other than the agreement to obey it.

The main impact of such a perspective on Kants moral theory is to transform the idea of objective laws equally valid for everyone into a discourse related to principles and their justification. Such a transition points to the need to communicate with others in the determination of valid grounds and the need to actually consult others to learn from them what grounds they find valid as a basis for moral theory. Such a position is the starting point for the moral theory of Jurgen Habermas. The conditions of communication set the framework for a process that discourages a unilateral application of the principle of universalization and centres on a theory of argumentation in public debate. Application of a modified principle of universalization is used in public argumentation to determine equal and reciprocal moral principles based on common interests. Under such a revision what becomes apparent is that moral principles, including the categorical imperative are not objective entities existing as laws of nature but rather they are arguments in favour of agreements that aim to achieve cooperation and equal consideration for all people.

It is the intention of this paper to follow the reasoning of Habermas as he transforms Kants categorical imperative from an objective law into a notion of universal agreement or assent. The search for grounds equally valid for everyone becomes a search for common interests shared by everyone. It is on this basis that Habermas constructs his theory of discourse ethics. Toward this end, I shall undertake an analysis of Habermas conception of validity in relation to moral principles and claims of necessity that arise under cooperative discourse conditions. The main object of this paper is to examine the role of consent in moral theory and to suggest that there are no binding moral obligations except those that we agree to adopt through the informed consent of participants. The analysis will hopefully demonstrate that what is conceived of as necessary in Kant and Habermas is actually an operation of individual consent. Even though I suggest that Habermas theory fails to ground objectively binding moral obligations it does not clear the path for the moral skeptics to claim the nonexistence of core moral norms in favour of ego-centric preferences and inescapable claims of relativism. What Habermas does succeed in establishing is that some reasons for ethical behaviour are better than others based on an appeal to common interests and a procedure for evaluating the acceptability of consequences from the perspective of each participant engaged in an inclusive dialogue.

Habermas Moral Theory

Cognitive Perspective

Kants focus on deriving moral principles from the dictates of reason is shifted by Habermas to an exposition of the cognitive content of moral utterances in the context of communicative action. Habermas study of moral consciousness takes the form of an analysis of moral discourse. The goal of discourse analysis is to consider what kind of argument or reasoning is acceptable to support moral decisions. Habermas claims that the study of a moral vocabulary and the need for rational justification points toward a theory of argumentation that must be rooted in the everyday level of communication. He proposes that moral phenomena are to be grasped in the first person performative attitudes of participants in the communicative practices. He grounds moral consciousness in the fact that moral feelings are apparent in everyday life accessible to us as first person performative attitudes involved in, for example, the condemnation of a wrong or a violation of underlying normative expectations held by individuals and members of social groups.

His theory relies on the idea of moral norms that operate to replace the focus on principles. A moral norm or customary practice is the result of expectations or obligations established between people. Normative rightness is connected to moral discourse insofar as rational agents attempt to persuade each other to adopt this or that moral norm. Moral norms carry obligations in the form of being consistent and the accompanying feeling of being obligated. According to Habermas, norms inform generalized behavioural expectations conforming to rule governed interaction that impose equal and exceptionless obligations on the group.32 They exist insofar as they are established within interpersonal relationships and they are supported by reasons that serve to justify the moral principle or norm.

Habermas depicts normative rightness as a function of intersubjectively binding agreements based on reasons rooted in the psychological and emotional dispositions of moral feelings. Within the framework of linguistic analysis, Habermas claims that feelings relate to the moral justification of actions in normative statements in an

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

analogous fashion that sense perceptions relate to the justification of facts in descriptive sentences.33 He distinguishes between descriptive statements and normative statements that operate as analogous but distinct forms of validity.

Habermas theory of communicative action is based on the observation that participants in argumentation coordinate their plans of action consensually and evaluate them on the basis of intersubjectively recognized validity claims. Communicative action for Habermas is when one participant seeks to rationally motivate another by relying on the bonding effect of an offer of normative validity within a speech act. Obligations arise in regular conversation by agreement based on pragmatic situation-specific definitions so long as the agreed actions do not contradict other propositions the actors accept as true at any given point.34

Underlying the shift in focus from the philosophy of consciousness to the philosophy of language in Habermas is a rejection of the idea of an ultimate justification of a transcendental truth derived from the faculty of reason in favour of recognition of fallible claims of normative validity and unavoidable pragmatic presupposition of language use within a shared social context of discourse formations. The external fact of pure reason used by Kant to justify universal ought statements is rejected by Habermas in favour of a context that highlights the actual need for argumentation over norms and principles of action within a public discourse. Discourse ethics relies on public and open argumentation as a necessary condition for the application and justification of normative statements. It requires more than ruling out maxims of action that contradict the categorical imperative, it replaces the categorical imperative by a procedure of actual public moral argumentation supported by reasoned justification.

Justification of Norms

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

33 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.50. 34 Ibid. see. pp. 58, 59.

what way moral commands and norms are justified.35 The position of cognitive ethics assumes that certain actions and norms are capable of reasoned justification in practical discourse through the use of rationality and the giving of persuasive reasons. For Habermas, the justification of action in terms of valid norms and the justification of norms in terms of principles worthy of recognition is a process of clarification and communication that serves to bind the will through the construction of conviction around public reasons.

Modern value skepticism rejects the idea that moral issues can be settled on the basis of intersubjectively binding reasons.36 They argue that normative statements cannot be justified like descriptive statements as true or false. On this basis they claim that there is no moral order, moral objects or moral facts. 37 By limiting reason to a form of instrumental rationality, value skeptics base ethical conceptions on the prior acceptance of a goal followed by a means-end analysis on how to attain the desired outcome. Habermas is motivated to overcome value skepticism and arguments that suggest morals and norms are based on nothing more than purely subjective and relative emotional dispositions and attitudes, explainable as preference-based empirical phenomena. Habermas attempts to construct an alternative basis for the validity of moral norms to overcome skeptical claims that moral judgments are motivated by rational self-interest or the satisfaction of feelings justified in a purposive-rational manner.

Habermas, like Kant, is trying to explain the obligatory character of moral duties motivated by rational force alone. He claims that classical empiricism cannot explain the obligatory force of moral norms in terms of selfinterested preferences just as they cannot explain the fact that actors motivated by moral feelings argue about moral judgments with reasons. In other words, Habermas proposes to ground the binding character of moral duties in the recognition that moral feelings express attitudes that imply moral judgments containing cognitive content.38 In such a fashion he argues against a limited conception of practical reason that restricts it to operations of instrumental reason in favour of a notion of practical reflection that accepts epistemic reasons

35 Ibid. p.57. 36 Ibid. p.182. 37 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.36. 38 Ibid. p.16.

within an intersubjective shared social world.39

Habermas asserts that to limit ethical reasoning to the preference based motives of a rational chooser opens such a position to criticisms of moral relativity and undermines the obligatory nature of moral expectations. Habermas rejects social contract theory because it is not able to disclose any kind of morally privileged position, he claims, an agreement among contracting partners motivated by interests can lead at best to an externally imposed social regulation of conduct, but not to a binding, let alone universalistic, conception of the common good.40 Agreements between interested parties cannot by themselves ground binding obligations because a self-interested person could choose to exit from existing agreements whenever they might benefit from such deviance. For Habermas only reflections on the conditions of communicative agreement, after religion and metaphysics, can ground the justification of a morality of equal respect and solidarisitc responsibility for everyone.41

The moral point of view

Habermas begins his search for universal moral principles that may ground a morality of equal respect and solidaristic responsibility for everyone in the investigation of everyday ethical insights as they relate to the spontaneous workings of practical reason. He links the normative validity of moral commands and norms of action to a shared social world that forms a universe of norms.42 The moral validity of a norm is reflected in the feeling of being obligated and the affective attitudes, such as resentment, that accompany noted transgressions of established norms within a specific community.43 These norms must be continually reestablished within legitimately ordered interpersonal relationships in order to exist. They are produced and maintained in society through individual conviction and institutionalized sanctions. However, to identify the existence of a norm as a 39 Ibid. p.25. 40 Ibid. p.23. 41 Ibid. see pp.15, 23. 42 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.61. 43 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.4.

social fact says nothing about whether the norm is worthy of recognition. The expectation that a claim to normative rightness can be redeemed and discursively justified with reasons is not the result of the mass acceptance of a norm, but rather a product of the logic of practical discourse.44

Morality is depicted by Habermas as an aspect of public discourse that has emerged from a preexisting unquestioned background of particular value configurations belonging to collective and individual modes of life. Principled morality emerges from this established lifeworld as a form of abstract reflexivity that includes the demand to justify itself in public argumentation. For Habermas, the moral point of view develops when an agent in the social world adopts the hypothetical attitude of a participant in argumentation split off from the ethical lifeworld leading to a context-independent moral standard of impartial judgment. Within such a framework moral development is a process of recognizing the generalizable interests that all participants in discourse share in common.

The ethical point of view sets the frame for value judgments and evaluative self-understandings of identity developed within the context of a morally constituted community. First person singular perspectives and first person plural perspectives generate questions relating to how we understand ourselves as part of a community, how we should orient our lives, or what is best for me (or us) in the long run all things considered. Individuals who find themselves within a particular intersubjective shared social life generally accept a shared ethos that has been proved in practice.45 Habermas claims that attempts at norm justification within a shared ethos inevitably lead to abstract and general principles that require more than a first person perspective of an individual acting on the basis of personal preferences. Following the development of moral intuitions set out by Kohlbergs theory of moral development, Habermas claims that in the later stages of moral development, the introduction of a reflective hypothetical attitude transforms the unquestioned, habitual, and particular ethical evaluations into questionable social conventions that need principled justification. The procedure of normjustification discourse is a product of the inevitable moralization of a social world become problematic.46 What 44 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.62. 45 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.26. 46 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.165.

appears to be objectively rational or objectively desirable within an ethical lifeworld is subsequently viewed from the hypothetical perspective as the intersubjective recognition of value dependent on the will and free choice individuals.

For Habermas, practical deliberation is split between moral questions relating to justice, which can be decided rationally on the basis of generalized and universal interests, and ethical evaluative questions that result in various arrangements of particular conceptions of the good life related to the identity of groups and individuals. Questions of the good life have the advantage of being contextual and concrete, posed within the horizon of a particular social group existing with an accepted cultural identity, while questions of justice are abstract, divorced of the context of a lifeworld and rely on the persuasive nature of better reasons for their existence. According to Habermas, the selection of normative issues through deontological abstraction differentiates hypothetical issues of justice from subjective preferences embodied in evaluative statements. The procedure sorts through practical issues and selects only those that are capable of rational debate. 47 In this manner, moral questions are dissociated from their contexts and the solutions are dissociated from empirical motives. What remains is a realm of practical discourse that is abstract and conscious of itself as engaged in a process of argumentation but one that requires contextual sensitivity in application.

Kant uses practical reason to ground an impartial perspective to judge moral actions and principles through the use of the categorical imperative, what Habermas calls the moral point of view. A principle or norm of action was considered free from subjective interests due to the generality and universality of the prescribed law that regulated matters valid for each individual. The abstract question of what is in the equal interest of all is used by Habermas to overcome criticisms of relativity inherent in context-bound ethical determinations of what is best for me or us in the long run all things considered. The ethical perspective that views norms as justified in our context becomes a claim from the moral point of view to be justified in every context. 48 Based on this reasoning, Habermas asserts that issues of justice can be given priority over evaluative questions relating to the good life because they embody shared interests. The good that is relevant from the moral point of view is 47 Ibid. p.204. 48 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.37.

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

Within such an expanded community, Habermas assumes that consensus on underlying norms within a shared ethos is not possible and so he focuses on rebuilding a consensus on the basis of moral reasoning and the construction of an impartial point of view. He assumes that the initial impulse to engage in deliberation and work out a shared ethical self-understanding is doomed to fail in competitive conceptions of the good. He suggests that participants embroiled in such a discourse want to resolve conflicts without violence, or even compromise, but through communication and the force of the better argument. 50 In the absence of a substantive agreement on particular norms, Habermas proposes that each participant may choose to rely on common interests grounded in the act of cooperative communication which disclose shared presuppositions of reciprocal recognition. He justifies the necessity of a transition to a fully symmetrical and inclusive communicative relation with others on the basis that participants are already actually engaged in a cooperative rational discourse that presupposes the use of such rules.51

If there is no authority for relations of moral recognition higher than the good will and insight of those who come to a shared agreement concerning the rules that are to govern their living together, then the standard for judging these rules must be derived exclusively from the situation in which participants seek to convince one another of their beliefs and proposals. By entering into a cooperative

communicate practice, they already tacitly accept the condition of symmetrical or equal consideration for everyones interest.52

Under assumptions of social and ideological pluralism, Habermas argues that application of Kants categorical imperative requires a reformulation. What is needed is a transcendental consciousness or a universally valid view

49 Ibid. p.30. 50 Ibid. p.39. 51 Ibid. pp.40-41. 52 Ibid. (Italics original)p.24.

of the world that considers the implications of adopting a norm from the perspective of each individual. 53 The justification of a law or norm from a single individual point of view in Kants formulation is replaced by a process of argumentation where many individuals strive to clarify a common interest from multiple perspectives to reach a joint decision. Consideration of the equal interests of all is undertaken by participants who collectively attempt to persuade and convince each other that adoption of a proposed norm is in the equal interest of all or equally good for all concerned.54 The moral point of view as used by Habermas is formulated to consider whether the consequences of the general observance of a proposed norm are acceptable to each person affected. A norm may be considered valid only when it embodies a general interest that could be accepted by everybody from the perspective of each individual.55

Habermas envisions a process of public argumentation where people debate their own needs and wants, but because these positions are tied to cultural interpretations and intersubjectively shared traditions he argues they must not be justified monologically. The shift from practical reason in Kant to practical deliberation in Habermas decontextualizes first person monological determinations of moral principles and submits them to an intersubjective process of agreement. Similar to Kants originating perspective, each participant is considered a co-legislator of a norm. However, each co-legislator is asked to adopt an intersubjective perspective to determine whether a controversial norm can count as generalizable from the point of view of each participant.56 In other words, each participant has to consider the contributions of others in a cooperative discourse examining norms oriented toward reaching a communicative agreement searching for common interests. Instead of binding others to maxims that each can will monologically without contradiction to become a universal law of nature, individuals must submit their suggestion for a universal maxim to the scrutiny of others to see if everyone can agree that such a maxim can be a universal norm. The difference for Habermas involves incorporating the perspective of a participant who contributes to an argument in opposition to adopting

53 Ibid. p.57. 54 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.71. 55 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.31 & Habermas, J. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.181.

56 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.31.

a point of view where the philosopher sees himself as deriving an inevitable theoretical outcome. Such a reformulation presupposes cooperative argumentation and reciprocal relations where each person can defend their view and judge for themselves what is in his or her best interest, while remaining open to criticism from others.

Habermas proposes that impartiality can be achieved through the involvement of a plurality of participants in public argumentation. The moral point of view as articulated by Habermas discourages Kants monological approach to making moral judgments in which each individual imagines that everyone adopts the same rule, in favour of an assumed pluralism that focuses on the conditions of communication in order to ensure that all interested parties test the acceptability of a norm. The change in focus from the individual to the conditions of communication transforms the categorical imperative into a discourse-theoretical interpretation formulated as the discourse principle (D): only those norms can claim validity that could meet with the agreement of all those concerned in their capacity as participants in a practical discourse.57

Habermas grounds his claim that practical-moral problems must be handled cooperatively and not monologically in the idea that normative conflicts in everyday life can be traced to disruptions of a pre-existing normative consensus. Argumentation is seen as the process of repairing a disrupted consensus by either restoring intersubjective recognition of a validity claims or recognizing a new claim in substitution for an old one.58 These agreements, which express a common will, can only be achieved within a cooperative and reflexive dialogue aimed at reaching a shared intersubjective agreement.

Habermas claims that principles of general welfare or principles of care are already contained in the meaning of normative validity. The procedure of ideal role taking associated with the justification of generalizable interests is linked with emotional dispositions and attitudes like empathy and care for ones neighbour which are seen as necessary emotional prerequisites for the cognitive operations expected of participants in moral discourse.59 57 Ibid. pp.33-34. 58 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.67. 59 Ibid. p.182.

Maturity is the integration of cognitive operations and emotional dispositions and attitudes in the process of justifying and applying norms that overcome the ego-centric position in favour of consideration of the interests of others.

Discourse ethics then, provides the structure and procedure of a process of argumentation that produces and uncovers norms for well-ordered interpersonal relations. The main features of an impartial perspective that leads to insightful will formation entails more than equal treatment, it requires discursive agreements that depend on participation, individual yes or no responses, and the overcoming of the egocentric perspective. Discourse ethics proposes to use the moral point of view to enlarge the interpretive perspectives of individuals within an intersubjective practice of argumentation. A position of impartiality is constructed on the basis of an ideally extended we-perspective from which all may test in common a controversial norm.60 The moral point of view is essentially a form of ideal role taking that acts as a procedural form of justification that intends to compel the universal exchange of roles based on the requirement that all affected parties consider the position of all others and in particular the consequences of adopting the norm from each perspective.61

Discourse Ethics

Habermas theory of discourse ethics is grounded in the recognition of necessary presuppositions of communicative action. Communicative action is found in everyday speech oriented toward reaching a shared understanding of moral action and norms that participants use to consensually coordinate their future plans of action. Communicative action is a type of discourse that attempts to rationally motivate others to adopt a norm through an offer to redeem a validity claim in the future. Habermas distinguishes communicative action from strategic action that attempts to secure compliance or cause a desired behaviour by influencing a person by means of a threatened sanction or promised reward.

Habermas theory of communicative action proposes that a speaker incurs an obligation to back up a claim made 60 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. see pp.35,38,57-58. 61 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.182.

during discourse when they make a claim that is accepted by the hearer insofar as they both intend to orient future action around the acceptance and non-contradiction of the accepted claim. Agreements reached within this dialogue are evaluated on the basis of an intersubjective recognition of validity.62 The use of an intersubjective claim of validity is to be distinguished from Kants objective recognition of valid laws. Intersubjective claims are based on a pragmatic mutual recognition and acceptance rather than recognition of immutable laws of freedom.

Habermas suggests that there are three types of intersubjective claims to validity that can be made about the world that correspond to descriptive, normative, and personal statements. Descriptive claims of truth refer to facts about the objective world, normative claims of rightness refer to an interpersonally ordered shared social world, and personal claims of truthfulness are said to refer to the subjective conditions of an individual. 63 Claims made about descriptive facts or shared social norms give rise to obligations that take the form of an expectation to redeem the claim in the future through the provision of acceptable reasons. Claims relating to subjective personal conditions disclose an obligation to act in conformity with the claim. Such a schematic division demonstrates Habermas desire to construct a distinct set of statements devoted to moral issues in the form of claims to normative rightness. The normative statements demonstrate the acceptance of a moral norm or customary practice that operates by condoning specific actions and setting expectations within a moral community.

The binding nature of the obligation is normative insofar as violations of existing norms produce conflicts and feelings of resentment. In order to overcome the position of value skeptics who claim that normative statements fail to disclose truth conditions, Habermas asserts that personal emotional responses generated by violations of an accepted norm act as analogous truth conditions similar to the validation of descriptive statements. He states that, feelings seem to have a similar function for the moral justification of action as sense perceptions have for the theoretical justification of facts.64 The obligation entailed by acceptance of a normative claim to

62 Ibid. p.58. 63 Ibid. p.58. 64 Ibid. p.50.

rightness is a product of implicit or explicit intersubjective agreement that results in a corresponding feeling. The obligation consists of an agreement to orient future action around acceptance of the claim, the expectation to be able to provide good reasons for accepting the claim, and an intention to not contradict the claim in the future. Habermas puts the matter into the following notational form: When we assert p and thereby claim truth for p we accept the obligation to defend p in argumentation in full awareness of its fallibility against all future objections.65

I think it important to note that intersubjective agreements do not themselves indicate whether the norm is worthy of acceptance. The observation that feelings may act similar to truth conditions in normative statements and the fact that people resent the violation of norms they accept, says nothing about the actual worth of any accepted norm. Personal emotional responses merely demonstrate the existence of suprapersonal standards that are capable of uniting within a normative consensus based on an intersubjective agreement, but they do not settle questions of normative rightness. It is the persuasive nature of the reasons provided that serve to ground claims of normative rightness.

Argumentation

we engage in argumentation with the intention of convincing one another of the validity claims that proponents raise for their statements and are ready to defend against opponents. The practice of argumentation sets in motion a cooperative competition for the better argument where the orientation to the goal of a

communicatively reached agreement unites the participants from the outset.66

Habermas views argumentation as a reflective form of communicative action that seeks to establish norms motivated by the force of the better argument.67 As a process for reaching a shared understanding, argumentation is seen as a rule-governed interaction designed to ensure that all concerned take part freely and 65 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.37. 66 Ibid. (italics original) pp.43-44. 67 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.198.

equally. Habermas asserts that good faith communication presupposes the speakers acceptance of some basic discourse rules that operate as necessary pre-conditions for cooperative communication in general. The presuppositions of communicative action, such as assumed reciprocities between equally competent parties, serve as pragmatic presuppositions that operate at the procedural level in Habermas theory of discourse ethics.68 The most important procedural standards being,69

relevant contributions are not excluded,

all participants have an equal opportunity for contribution,

the participants do not lie,

and the communication is free from internal and external coercion in order to ensure that contestable validity claims are motivated primarily by the force of better reasons.

The presuppositions of communicative action rely on the reasoning of what Habermas calls, transcendental pragmatics which involves the explication of unavoidable (universal and necessary) presuppositions. The general idea is that public argumentation makes use of substantive normative rules, such as freedom of opinion, and they operate as inescapable presuppositions of argumentation. Any attempt to deny or repudiate the minimal logic of the presuppositions of cooperative discourse involves a mistake or performative contradiction because to try and contest the presuppositions requires their use and no alternatives are available.70

Once explicated, the necessary presuppositions of communicative action serve as rules of argumentation in practical discourse that act as a warrant of rightness or fairness for normative agreements which are reached under fair and equal discursive conditions. If argumentation occurs in bad faith, or it mimics conditions of 68 Ibid. p.100. 69 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.44. 70 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.83 and 95.

oppression in sexist or racist terms, the process of argumentation is seen to have failed to achieve these basic cooperative agreements among the parties. Discourse ethics then is seen as an idealized form of reciprocity in the cooperative search for better reasons on the part of a potentially unlimited communication community. It is modeled on a pattern inherent in the use of language oriented toward mutual understandings.71

With the acceptance of these basic presuppositions we arrive at a procedure of discursive validation in the form of a collection of rules that operate to construct an ideally inclusive practical discourse aimed at reaching an uncoerced agreement on the validity of norms that give equal weight to the interests and evaluative orientations of everybody. A moral obligation attaches, not to the unavoidable presuppositions of argumentation, but to the norms accepted for the reasons given. Habermas assumes that in the absence of deception and coercion nothing could convince participants to accept a controversial norm except reasons that each person finds acceptable.72

The Principle of Universalization

Habermas claims that it is often impossible to reach a consensus on moral questions due to a plurality of ultimate value orientations that ground divergent perspectives. He also claims that it is impossible to force agreement on theoretical and moral-practical issues either by means of deduction or on the basis of empirical evidence.73 He asserts that all studies on the logic of moral argumentation end up proposing a moral principle that acts as a bridging principle to help create consensus between divergent views. The moral principle is used as a rule of argumentation that bridges the gap between general hypotheses and particular observations.74 He claims that philosophers choose a moral principle that is always a derivative of Kants basic insight represented by the categorical imperative that uses the principle of universalization to justify moral norms and actions on grounds equally valid for everyone. 71 Ibid. p.163. 72 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. see pp.44-5. 73 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983.(italics original) p.63. 74 Ibid. p.63.

For Habermas, the fundamental core of cognitive ethics is the justification of moral norms in public argumentation through the application of the principle of universalization. The principle of universalization helps to construct a consensus in moral argumentation because it selects only those norms and principles of action that embody a common interest for all participants. Habermas conceives of the moral principle as a tool that excludes contested norms that cannot meet with the qualified assent of all who are or might be affected by it.

The moral principle makes agreement on issues possible because it ensures the acceptance of only those norms that express a general will.75 The argument relies on the insight that those moral norms that embody universal and generalized interests are more readily capable of forming a rational consensus. For example, human rights are said to embody general universal interests. In this manner, the principle of universalization transcends appeals to individual interests connected to conceptions of a particular good. Habermas holds that true impartiality pertains only to that standpoint from which one can generalize precisely those norms that can count on universal assent because they perceptibly embody an interest common to all affected. It is these norms that deserve intersubjective recognition.76

The validity of a claim to normative rightness signifies that a moral norm could win the agreement of all concerned under the conditions of a public discourse and a joint examination of whether a practice is in the equal interest of all.77 The main feature of the moral principle captured by the principle of universalization is that it justifies and motivates claims of universal assent. The issue that Habermas points out is whether we can all will that a contested norm gain binding force under given conditions. 78 On this basis Habermas proposes his own formulation of the principle of universalization (U) - A norm is valid when the foreseeable consequences and side effects of its general observance for the interests and value-orientations of each individual could be jointly

75 Ibid. p.63. 76 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. (italics added). p.65. 77 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. p.36. 78 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.204.

accepted by all concerned without coersion.79 The agreement of all concerned presupposes first, the fallibility of deliberating subjects who convince one another to recognize a worthy norm and second, the freedom of legislating subjects who agree to adopt the norm.80 The position is in contrast to ethical conceptions that appeal to ultimate justifications that claim unerring knowledge immune to claims of fallibilism.

Overall, Habermas conceives of a three step process for normative justification. First, practical deliberation is regarded as the only resource for the establishment of impartial judgment for moral questions captured by the formulation of the discourse principle (D): Only those norms can claim validity that could meet with the acceptance of all concerned in practical discourse. Second, a rule of argumentation sets out how norms can be justified: (U): A norm is valid when the foreseeable consequences and side effects of its general observance for the interests and value-orientations of each individual could be jointly accepted by all concerned without coersion. And third, a practice of justification must select norms that are capable of commanding universal agreement because they embody generalized interests common to everyone.81 In this manner, normatively binding obligations are justified through the application of the principle of universalization which relies on the acceptability of general principles, an analysis of the consequences by each participant, and a reciprocal ideal role exchange that considers the interests of others.82

For Habermas, moral principles derived from the application of the principle of universalization are transformed into a binding normativity that benefits from the imposition of an impartial perspective. However, he is careful to make a distinction between the abstract justification of norms and their context-specific application. He claims that moral norms do not themselves contain rules of application but require an additional competence of reflective prudence. He argues that a system of internal controls rooted in self-government is required to follow the convictions established by principled moral judgments.83 Habermas suggests that the weak motivating force

79 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. italics original p.42. 80 Ibid. p.36. 81 Ibid. p.43. 82 Ibid. p.29. 83 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. pp.179-180, 183.

of moral reasons is a product of the initial separation of moral issues from questions of the good life, and should be supplemented by coercive positive law.84 Like Kant, Habermas recognizes that we may agree on actions that are morally right but be inclined to act otherwise anyway.

Habermas conceives of the construction and use of an impartial moral point of view as a product of an ideal role taking exercise in practical deliberation. Habermas claims the institutionalization of impartial discourse rules and the practice of joint deliberations help to persuade participants that moral norms are justified because they were determined within impartial discourse conditions.85 However, although procedural rules may represent a step forward for impartial decision-making, they are no guarantee that the moral norms adopted as outcomes will be a reflection of that impartiality. The exercise of ideal role taking may improve understanding of the different consequences on different groups in the adoption of a norm, but there is no guarantee such a process will lead to the adoption of a worthy moral norm.

Many democratic forums have institutionalized egalitarian procedures that entitle parties to speak and argue over partisan interests. These interests do not disappear under reciprocal conditions of perspective sharing. People often listen to and ignore submissions of dissenting voices on a regular basis within democratic forums. They simply do not share the same interests and do not agree. Although open and fair procedural rules are an important part of a decision-making process they do not act as a warrant of impartiality as concerns the disposition of participants and the content of the norm to be adopted in practice. In other words, the unavoidable presuppositions of cooperative behaviour disclose impartial procedures but these procedures do not guarantee a result in the equal interests of all. Habermas conceives of the validity of a moral norm as attached to the conditions of discourse, but these conditions are not sufficient to guarantee that the individuals involved refrain from strategic rather than communicative action or that the outcome will not be affected by bias. People often accept or reject norms on the basis of changing or maintaining the status quo in terms of regulation and the relationships between the competing interests and groups within society despite claims of egalitarian consideration of the interests of everyone. 84 Habermas, Jurgen. Inclusion of the Other. (M.I.T.) 1998. F.N.#51.p.274. 85 Ibid. p.41.

Better argument

Habermas makes clear his position that ethical self-understandings lead to irreconcilable differences and yet he claims that moral issues can be settled by reasons that privilege questions of justice and avoid criticism of moral relativism. Habermas proposes to use the principle of universalization to bridge the gap between divergent perspectives. The application of the principle of universalization relies on the force of the better argument to overcome disagreement through consideration of the consequences of all affected parties coupled with a notion of consent or acceptability. The conditions of acceptance presuppose that the force of the better argument can succeed and that reasons can overcome divergent views and criticisms of relativity.

Many historical moral disagreements attest to the difficulty of putting forward a core set of moral norms or evaluative goods based on conditions that all agree or could agree. In the words of Richard Posner, when the stakes are high, emotion engaged, information sparse, criteria contested, and expertise untrustworthy a pretty good description of the democratic process people do not simply yield to the weight of the argument, especially argument derived from the abstractions of moral or political theory. 86 One reason for this is because disagreements over moral norms and their application conflict in the same manner as ethical evaluative differences that appeal to separate worldviews for epistemic truth. The only difference is that rather than contesting divergent views based on questions of what is good for me (or us) they contest divergent views based on questions that attempt to consider the equal interests of all.

Reaching Agreement

Habermas asserts that only those norms and interests that are capable of universal assent should be selected for consideration within the moral sphere. There are at least two approaches toward achieving universal assent that can be found in the thinking of Habermas. The first method conceives of an agreement based on the generalization of a norm. For example, Habermas grounds the acceptability of the presuppositions of

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

communicative action within discourse ethics on the basis of the assertion that the rules of discourse embody the common interests of everyone engaged in cooperative argumentation. The second method of approach to agreement is based on the acceptability of consequences as formulated in the principle of universalization.

Common interests

The generalization of a norm is a method of constructing propositions that are acceptable in general because they capture a common will. If it can be established that everyone shares a common interest then opposition to the adoption of a norm should be limited. What is interesting about generalizations of moral norms is the fact that claims to universal assent can be made from either self-interest or other directed perspectives. Both approaches aim to reach agreement based on generalized common interests. However, such an approach to obtaining universal agreement has the consequence of narrowing the scope of moral questions into a search for what interests are shared in common rather than establishing as Kant attempted, a conceptual standard from which one could derive an exemplary mode of conduct. Agreements over norms that embody generalized common interests can be constructed on the basis of self-interest to promote an interest that coincides with the self-interest of everyone else or through a impartial consideration of the interests of others. Agreement based on self-interest are not entirely what Habermas had in mind as he attempts to support Kants conception of autonomy purged of selfish conditional interests.

Kant considered the performance of moral duties that were opposed to self-interest as opportunities to demonstrate the greater moral worth of a duty. The mere acceptability of a norm from a self-interested perspective would contradict the categorical imperative. However, as a method of establishing agreement in Habermas conception, self-interest should not be overlooked. So long as norms are subjected to ideal discourse conditions, represent a common interest, and result in consequences acceptable to everyone, the norm may be motivated by either self-interest or the mature consideration of the interests of others.

Foreseeable consequences

Within a practical discourse, the justification of a norm depends on whether the foreseeable consequences are acceptable to participants. The requirement of acceptable foreseeable consequences is very close to a condition that requires moral norms to do no harm based on the reasoning that if a harm or disadvantage were to accrue to participants it would be rejected. One might also assume that consequences that do no harm would be acceptable to participants. There may be some overlap between acceptable harms and the condition of do no harm, but the main insight is that the condition of foreseeable consequence is roughly equivalent to a rejection of harmful outcomes as defined by the participants themselves. Implicit in this formulation is the operative principle of respect for the consent of participants. It establishes the condition that norms adopted must not adversely affect the interests of particular parties otherwise they would not be acceptable.

The idea of foreseeable consequences as a condition of justification is an improvement on Kants monological formulation that claims to derive principles equally valid for everyone. It requires discourse and consultation with others in order to determine if the condition has been fulfilled, which is absent from Kants thinking. The advantage of this formulation is that it avoids making assumptions that equate equal treatment with equal outcomes and makes the search for consequences, which may be different for particular groups, a priority. The disadvantage of this formulation is that moral norms must be uncontroversial to be accepted.

In the context of social regulation, the adoption of a normative claim enforced in public will likely always produce winners and losers in terms of resource allocation or political agendas. It is also possible that a moral norm might be worthy of recognition but have unacceptable consequences for a particular group. For example, if a moral proposition entailed sharing material wealth with those less fortunate, many rich people operating on the level of an ego-centric perspective would find such a proposition unacceptable. The fact that a privileged group would deem the norm unacceptable would be a ground for denying the norm in Habermas conception of universalization. Such a norm could be challenged on the basis of its unpopularity rather than on the basis of its moral worth. Some moral norms may be worth observing despite the fact that they are controversial and unacceptable to, for example, materially privileged groups.

The Nature of Necessity

The basic moral phenomenon is the binding force of norms87

There are two types of necessity encountered in the moral philosophy of Habermas. The first relates to the binding nature of moral norms that are expressed in social obligations and personal emotional feelings related to social expectation. The second type of necessity encountered in Habermas is found in the form of unavoidable presuppositions of cooperative language rules. Habermas tries to rehabilitate the objective necessity that Kant ascribes to his categorical imperative through the recognition of the presuppositions of communicative action within discourse ethics.

Limitations of agreement

Remember Kants application of the categorical imperative that claims a necessity for the laws of freedom based on the proposition that asks us to act as if the laws were necessary laws of nature. I argued that Kants realm of objective ends is not necessary at all but contingent on the agreement of interested parties who agree to act as if. Asking one to hold laws as if they were necessary laws amounts to little more than asking one to agree to uphold a law, first in our imagination, then in the world. In order to exist the objective end relies on the agreement of individuals for its very appearance. To make a claim of necessity adds very little to change the nature of the moral command that relies on agreement for its existence. From this perspective, Habermas had no alternative choice but to transform the categorical imperative into a justificatory procedure that is dependent on the consent of individuals for validity - because it is only through consent that moral norms may be constructed.

The obligation to observe a norm is a product of an intersubjective agreement in the form of a social expectation that invites censure for those who fail to observe the norm. Participants of first person perspectives report normative emotional responses rooted in a perceived consensus and public agreement. On the basis of

87 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.164.

this observation, it would appear that the claim of a binding normative obligation is logically limited to those concrete individuals that are informed as to the consequences of accepting the norm and actually consent to adopt the norm. The scope and application of norms is limited to the informed consent of individuals because it is only on the basis of consent that individuals could incur an obligation through agreement to observe a norm in the first place. The informed consent of individuals sets the framework for incurring obligations achieved through discourse.

Entailed in the theoretical transition in moral theory from objective recognition of laws to intersubjective recognition is the logical conclusion that norms are valid when they are implicitly or explicitly agreed upon. Moral norms are constructed with the intent of meeting with the qualified assent of all concerned. In cases of uniformed consent, or plain rejection, the enforcement of a norm may be seen as peer pressure inconsistent with the logical jurisdiction of a valid norm. In the context of moral theory, what basis of validity may be claimed for a norm if it failed to achieve universal agreement and on what grounds could a norm be extended in application to regulate the behaviour of those who are not aware of or have explicitly rejected the norm? Further, what are we to do with the claim of a binding norm that extends over time where an individual changes their mind?

The transition from Kants objective claims of ontological rightness to Habermas deontological intersubjective claims is an implicit recognition of the principle of consent that logically limits statements about binding norms to recognition of an agreement that is subject to change over time. Habermas conception of validity is based on the idea that public discourse can clarify and communicate reasons that serve to build a consensus on normative issues over time. But if the validity of a norm is tied to the consent of individuals, moral theory cannot ignore the implications of that freedom. It would logically follow that the binding force of norms is limited to the concrete individuals who enter into discourse and establish and maintain that consensus by agreement. Under such conditions, the application of a norm is limited in application to those people who are informed and actually consent. Universal assent may never be achieved in fact, although some principles are more likely than others to achieve a greater consensus based on features that promote agreement.

Claims that moral norms or principles are binding must be limited to the actual informed consent of concrete participants who have clarified the content of their agreement and are persuaded by the moral reasoning. To claim that moral norms are binding on those who disagree is a logical contradiction because moral norms are based on the consent of others in an ideally inclusive community. When, as inevitably occurs in life, some participants reject the proposed norm, an expectation to observe the norm in their case would be unjustified. To claim that binding norms should extend beyond these limits is to impose an obligation on individuals without their informed consent or in some cases even their knowledge. Norms exist as expectations between people and as such they exist only insofar as they are agreed upon. Any claim that norms are binding on those not party to the agreement is to contradict the basis for establishing a norm in the first place. At best the obligation only arises between people who agree to bind themselves to the norms for whatever reasons they choose.

Normative consensus is always context-bound to the concrete act and history of the people who participated in the determination of a norm. It is tied to the context of its origin in the same manner as ethical selfclarifications, the only difference being that the subject matter concerns questions in the equal interest of all rather than what is good for me (or us) in the long run all things considered. If we view others in the concrete we view each and every person as an individual with an actual history, identity, and affective-emotional constitution.88 If the validity of a norm is tied to the conditions of discourse and its rules, its validity is at best a reflection of that particular discourse with those particular people. Any consensus arrived at through public discourse will only include those individuals actually present and consenting to the proposal within the discourse. Some will agree, some will disagree and some will change their minds as they see fit. The main point is that the construction of a common will or general will is a theoretical construct that has no corresponding factual state in reality beyond the actual will formation of concrete groups.

In forums of democratic deliberation the accepted argument is often a product of power. Regulation of social behaviour always occurs over the dissent of a minority. Habermas conceives of practical discourse as a formal

88 Benhabib, Seyla. The Generalized and the Concrete Other : The Kohlberg-Gilligan Controversy and Moral Theory in Kittay, E. and Meyers, D. (eds.), Women and Moral Theory. New Jersey : Rowan and Littlefield, 1987.p.164.

procedure that sorts out questions of justice from questions of value considered less susceptible to consensus.89 However, to suggest that practical deliberation results in a binding consensus for everyone is to over-generalize and assume the agreement of many people who were never actually consulted. The issue is one of participation in power. Within public political, legal, and educational debates assumptions of a common will overstate the levels of consensus actually achieved in the attempt to justify and apply collective decisions in the regulation of a shared social world. Such an approach becomes even more problematic when a controversial norm is adopted. In reality there always will be a dissent, always should be a dissent, particularly in the face of fallibilistic claims. Oppositional positions should not be ignored in moral theory in favour of claims, for example, to have the consent of all rational actors because they gloss over the concrete reality of practice. Universal consent would require informing and requesting a response from each and every individual affected, which in practice is never really accomplished or even attempted. It is just not possible to validate a norm in relation to discourse conditions because in practice a minority will always surface and the ideal condition of universal consultation is improbable at best. The question is not what can all will in agreement, it is who wills what in agreement with whom and why? The inclusion of all interested parties inevitably creates conflicting positions that need to be understood and articulated rather than ignored under the banner of a common will.

The necessity of discourse ethics

Although the construction of moral norms has limitations, Habermas still wants to claim the necessity found in Kants categorical thinking for some principles. He is unable to base that necessity on objective laws given by reason, as Kant does, and so he grounds the necessity in the unavoidable presuppositions of cooperative language use. The attempt to construct necessity from such foundations is in reality a request for agreement to observe specific norms. In the case of Kant, the norm is to observe commands that each may will without contradiction in a fictional realm of ends, in Habermas the norm is to observe cooperative language behaviour in public discourse.

Although the reliance on transcendental pragmatics appears to demonstrate a sphere of communicative practice

89 Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. p.103.

that is unavoidable, I argue that the presuppositions are a consequence of a prior agreement to search for mutual understandings within a cooperative discourse. When Habermas differentiates communicative action from strategic action, he creates a division between agreements to engage in cooperative behaviour and agreements to compete for success. The contents of communicative action presuppose an agreement to cooperate in the search for better reasons. The agreement to cooperate is based on consideration of the acceptability of foreseeable consequences for each participant rather than an agreement to resolve practical conflicts through the direct application of force, material incentives, or sanctions. Just like with Kant however, Habermas necessity is also contingent on an agreement. Kant asks us to agree to observe the moral law as if it were a law of nature. It is the same in Habermas. If you agree to enter into cooperate discourse in the search for better reasons to adopt a norm then you tactically agree to the presuppositions of communication and the necessity of discourse ethics.

Habermas claim to identify the presuppositions of discourse is modeled on a theory of communicative action that presupposes cooperation between participants. The rules of discourse are a product of that consensus, implicit in cooperative dialogue. Habermas presuppositions are not necessary elements of rational order of things but the result of a pre-existing agreement to cooperate in the search for better reasons in practical discourse. This proposition amounts to little more than stating that if we want to communicate cooperatively then we should observe specific procedural norms. These procedural norms are only necessary if we agree to cooperate and want to try and understand each other. In this fashion, the act as if necessity confronted in Kant is transformed into the if p then q necessity of Habermas. If you want to cooperate then you must observe discourse ethics. Such an approach is merely an application of instrumental reason directed toward the question, what are the preconditions necessary for cooperative discourse?

It may be true that to contest the presuppositions is to be caught up in a performative contradiction however rather than ascribing this necessity to the rational constraints of communication, I suggest it is the product of an instrumental view engaged in the logical deductions of a prior agreement to cooperate. The rules of discourse ethics are logical outcomes of an agreement to cooperate rather than an agreement to compete for success. Each of the key procedural standards depicted in Habermas theory of discourse ethics are unavoidable only if

one first presupposes an established agreement to cooperate. For example, the condition that all relevant contributions are not excluded only makes sense if one has first agreed to cooperate with others. The condition that all participants have an equal opportunity to contribute is another aspect of cooperation and so is the rule that participants should not lie. The condition that communication should be free from internal and external coercion is also an attempt to provide content to an agreement to resolve conflicts cooperatively rather than through competitive interventions.

The justification of moral norms in public discourse are not based on unavoidable discursive procedures, but a more general consensus to reach a shared understanding without strategic action. The explication of transcendental pragmatics merely brings forward the logical entailments of an agreement to cooperate. If these procedural standards are logical entailments of a consensus to cooperate then the arguments in favour of making that agreement have a special place in moral reasoning because it is only after making this agreement that other agreements may be reached in a fair and open manner.

Respect for consent

Throughout this paper I have been arguing that Habermas has introduced a principle of consent in the justification of moral norms. This principle is presupposed in the very nature of normative justification based on a conception of intersubjective agreement. Having set out some limits to the application of consent I would also like to argue that such a principle is a likely candidate based on the conditions of justification established by Habermas. In other words, although respect for consent is presupposed by Habermas conception it is also justified by it.

I cannot resist attempting to apply Habermas conception of justification to argue in favour of recognizing a particular moral principle that appears to be fundamental to moral theory. The idea of equal respect appears represented in moral theory through respect for the consent of others. It represents an interest that we all share based on the reasoning that every person has an equal interest in being consulted and informed about deliberations that end in the regulation and enforcement of interpersonal moral norms or norms established by

coercive public authority. Recognition of this common interest suggests to me the justification of a radical notion of consent that plausibly could unite everyone on the basis of acceptable foreseeable consequences.

The main problem with such a conception is that it would impede uniform application of norms on those who do not agree to adopt a norm in question. Full recognition of respect for consent would require that we recognize dissent and refrain from imposing norms on people who refuse to accept paternalistic visions. Although such a proposition would have far reaching effects for public institutions that regularly impose uniform norms based on majority opinions, and attempt to provide a guideline for particular interpersonal behavioural constraints, I think the consequences of such an idea could be made acceptable to everyone. Opposition to this idea would in effect be arguing in favour of imposing norms on people regardless of their consent which contradicts the entire basis of moral reasoning as formulated by Habermas and represented by the principle of universalization.

There would, however, have to be exceptions to the rule, in particular for cases where regulations are intended to prevent harm to particular groups. For example, the criminal law is imposed on those who have committed criminal acts who in many cases might disagree with its enforcement. If the principle of respect for consent operated as an excuse to avoid prosecution it would likely not be acceptable. So, in cases where the regulation of a norm is an attempt to prevent harm to others, one could not opt out of its application. However, in cases where opting out of the regulation of a norm would not have consequences likely to result in harm for others it should be supported and agreed to on the basis of containing acceptable foreseeable consequences. Similar arguments could be made to limit the principle on the basis of economic efficiency. I do not intend this analysis to go much further, I merely want to articulate a notion of respect for consent that appears to me to be in a unique position to qualify under Habermas justificatory process. I cannot image a more common or universal interest that would have less opposition.

Conclusion

The investigation of the cognitive philosophers of the Kantian tradition have undertaken to accomplish more than clarify a practice of moral justification within the horizon of received norms but rather attempted to justify

an impartial moral point of view from which norms could be judged. Abstracted from particular problems the principle of universalization became the focus. In the process of the cognitive reconstruction of moral reasons philosophers such as Habermas inevitably attempt to justify an equal respect of everyone through agreements achieved through discursive processes that rely on respect for consent.

Habermas principle of universalization justifies claims of normative rightness on an intersubjective basis rather than finding objective laws of freedom a priori. Habermas, like Kant, bases his conception of binding principles on the absence of self-interested motivations and the presence of grounds equally valid or equally acceptable for each person. Habermas holds that moral norms may only be validated within a public discourse that considers the interests of others in an ideal role exchange. Habermas transforms Kants monological justification of the categorical imperative into an ideal discourse exchange that relies on the qualified assent of members to establish norms.

Once established, these agreements form a universe of norms similar in fact with Kants realm of ends. However, just because a norm has been accepted within a particular moral community, does not indicate whether or not the norm is worthy of acceptance. Habermas argues that the principle of universalization provides a method for reaching consensus on issues of normative rightness. Universal agreements can be formed by appeals to common interests that have considered whether or not the consequences are acceptable from the perspective those affected in the context of an actual discourse. I have argued that common interests may be selected through self-interested or other directed motivations and that the condition of acceptability may result in a denial of a worthy moral norm from the perspective of materially privileged groups.

The key feature in the transition from Kant to Habermas is the introduction of a method of justification that is based on agreements between people. Habermas transformation of the universalization principle introduces a key element of ethics through the recognition of the need to solicit the agreement of others. Kant proposed that this agreement was presupposed as a product of the use of reason that in every instance converged on noncontradiction of the categorical imperative. Habermas opposes this idea and grounds moral agreements in what he considers to be unavoidable presuppositions of argumentation based on the reasoning of transcendental

pragmatics.

Habermas considers the presuppositions of communicative action to be binding and necessary. I have proposed that these presuppositions are logical entailments of a more general agreement to cooperate. It is only after one has agreed to cooperate in the process of argumentation directed toward understanding better reasons that the presuppositions apply. The agreement to cooperative is prior to the application of discourse ethics and it can explain the content and the source of Habermass binding norms. If one agrees to cooperate in discourse, then one is required to observe discourse ethics. The agreement to cooperate, to agree that moral norms are to be determined by consensus, has a special place in moral reasoning because that agreement operates as a precondition in the justification of norms.

Based on the observation that people make agreements to form moral norms it may be clear that what is in operation is respect for consent. Habermas conception presupposes that moral norms are established by agreement through the informed consent of participants operating without deception or coercion. Respect for consent follows from recognition of the idea that norms are constructed through the agreement of individuals to adopt and observe a norm. The principle represents an acknowledgement of the necessity for individual yes or no responses in the construction of norms. The question What makes agreement possible presupposes the principle of consent and a conception of autonomy that is capable of making agreement with others possible. The principle of consent must be presupposed to ground the idea of intersubjective agreements which by definition demonstrates respect for the decision making capacities of others.

If one recognizes the role of consent in the making of agreements, including the agreement to cooperate in an ideal discourse exchange, then an exploration of the role of consent includes logical limits. Members of a particular community must be informed of the cognitive content of a norm and have some expectation of its consequences before they could provide their qualified assent. Informed consent is a concrete event that should be respected on a case by case basis and not be denied under assumptions of a universal common will. Any norm adopted is also limited to a particular moral community of concrete people who actual agree to adopt the normative expectations. The binding nature of the norm is limited in application to only those individuals who

agree to adopt the norm. If an individual changes their mind, such a change is to be respected.

Habermas conception of moral justification through application of the universalization principle supports the idea that equal respect is a key ethical proposition insofar as we respect an individuals right to participate and enter into moral agreements that establish norms and principles used to regulate public action. Moral theory assumes a principle of consent in the construction and support of norms. This same principle is likely a candidate for moral justification because it discloses a universal interest in being consulted and informed in deliberations that regulate public action and is acceptable when its application does not have any negative consequences for people. Opposition to respect for consent betrays a general non-recognition of people and a denial of the right for self-government, a position unpopular to moral theory.

Such a position denies the possibility of constructing a binding universalistic conception of the common good through public discourse. Rather it argues for a consensus to establish the principle of consent and its limitations as a privileged proposition within moral theory. Based on its universal appeal, opposition to the idea of respect for consent should be limited insofar as we all share an interest in being granted equal respect, and its accompanying right to enter into participation, consultation and agreement in the determination of moral norms or principles.

Bibliography Benhabib, Seyla. The Generalized and the Concrete Other. Kittay, E.F. and Meyers, D.T. (eds.), Women and Moral Theory. (New Jersey: Rowman and Littlefield) 1987. Benhabib, Seyla. On Reconciliation and Respect, Justice and the Good Life. Philosophy & Social Criticism. Vol.23 no. 5 pp. 97-114 (Sage Publications, London) 1997. Habermas, Jurgen. Legitimation Crisis. (M.I.T. Press, 1998) 1996. Habermas, Jurgen. Moral Consciousness and Communicative Action. (M.I.T. Press 1990) 1983. Habermas, Jurgen. The Inclusion of the Other. (M.I.T. Press, 1998) 1996. Habermas, Jurgen. Theory and Practice. (Beacon Press, 1973) 1963. Hare, R.M. Essays in Ethical Theory. (Oxford University Press) 1989. Hart, H.L.A. The Concept of Law. (Oxford University Press 1997) 1961. Hill, Thomas, E. Autonomy and Self-Respect. (Cambridge University Press) 1991. Kant, Immanuel. Foundations of the Metaphysics of Morals. Ed. Robert Paul Wolff. Trans. Lewis White Beck (Macmillan Publishing Co.) 1969. Kant, Immanuel. Critique of Pure Reason. Trans. F. Max Muller (Anchor Books, NY) 1966. Kant, Immanuel. Critique of Practical Reason. Trans. Lewis White Beck (Prentice-Hall Inc. New Jersey) 1993. Kant, Immanuel. Logic. Trans. Robert Hartman & Wolfgang Schwarz (Dover NY 1988) 1974. Merleau-Ponty, M. The Primacy of Perception. (Evanston: Northwestern University Press) 1964. Posner, Richard, A. The Problematics of Moral and Legal Theory. (Harvard University Press) 1999. Rawls, John. Lectures on the History of Moral Philosophy. Ed. Barbara Herman. (Harvard University Press) 2000. Rawls, John. Political Liberalism. (Columbia University Press) 1993. Rousseau, Jean-Jacques. The Social Contract. (Penguin Books) 1968. Searle, John. Rationality in Action. (M.I.T. Press) 2001. Wolff, Robert Paul. The Autonomy of Reason. (Harper & Row NY) 1971.