The Limits and Possibilities of Communicative Ethics

The Limits and Possibilities of Communicative Ethics for Democratic Theory
Author(s): David Ingram

Source: Political Theory, Vol. 21, No. 2 (May, 1993), pp. 294-321
Published by: Sage Publications, Inc.
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THE LIMITS AND POSSIBILITIES

OF COMMUNICATIVE ETHICS
FOR DEMOCRATIC THEORY
DAVID INGRAM
Loyola University
ROUSSEAU'S BELIEF THAT political rationality requires democratic
participation appears quaint by the lights of contemporary rational choice

theory. Democracy, we are told, seldom if ever generates rational outcomes
or uniquely consistent, maximal rank orderings of preferences of the sort
required by a volont6 gdnerale.' Against this view it may be objected that

democratic rationality resides elsewhere, namely, in its salubrious effects on
the development of rational faculties foundational for social choice generally.
Arguments for extending democracy to all levels of life, including the

workplace, have usually followed this line of reasoning. Yet as Jon Elster
notes, it is unlikely that the development of rational faculties could be the
primary aim of political action, which, if it is oriented toward anything at all,
is oriented to the efficient pursuit of more mundane goals.2 Compounding

the problem is the penchant of democratic socialists schooled in the Marxist
tradition to stress labor as the vehicle of self-development.3 The appeal to
labor plays into the hands of rational choice critics of democracy by presuming an instrumentalism that privileges scientific management over demo-
cratic decision making and neglects the peculiar rationale authorizing political rights.4
I argue below that self-realization can function as the primary rationale

underlying democratic participation so long as policy goals can be pursued
in an minimally effective way. To see how this is possible, I propose that we
turn to Habermas's use of communication theory in articulating the dynamics

of moral self-development. Communication ethics is said to embody an idea
AUTHOR'S NOTE: The author is grateful to Tracy Strong, James Bohman, George Trey, and
Julia Simon-Ingram for reading earlier drafts of this essay.
POLMCAL THEORY, Vol. 21 No. 2, May 1993 294-321
C 1993 Sage Publications, Inc.

294
Ingram / COMMUNICATIVE ETHICS/DEMOCRATIC THEORY 295
of democratic procedural justice that provides a universal basis for civil,
political, and social rights.' This accomplishment dispenses with the usual
appeal to rational choice theorems commonly associated with social con-
tractarian approaches in that it ties the interpretation and validation of
specific rights to democratic consent. Here, one must be careful not to

construe consent (consensus) as a criterion specifying true or just outcomesa precaution that Habermas does not always heed. What is decisive in the
legitimation of laws and policies is not that they are chosen as the most
effective means for satisfying general interests but that they are adopted in
accordance with an approximately fair procedure. So long as parties to the

debate have roughly equal opportunities to influence public opinion and are
genuinely motivated by concern for the public good, the compromise outcomes that typically arise in game-theoretic situations will satisfy minimal
(if not maximal) conditions of social rationality and fairness. Because legit-
imate outcomes are imperfect expressions of social choice, they cannot be

morally binding in the strong sense suggested by Habermas.
I conclude that a properly qualified discourse ethics defines the scope of
democratic participation more broadly than either Habermas or his critics

realize.6 Habermas's rejection of "simple recipes of workers' self-management"
in light of the requirements of a government-regulated market economy-a
view that strangely resonates with rational choice critics of democracy-may
appear to many as a retreat from the democratic ideal.7 Yet I think it can be
shown that worker democracy satisfies conditions for rational choice better
than mass plebiscitary democracy while also providing necessary social and
cultural conditions for democratic justice.
COMMUNICATION ETHICS AS MORAL PROCEDURE

If only formal conceptions of morality live up to the universalistic expec-
tations of a modern conception of reason, the sphere of moral rationality

would be restricted to thejustification of particular maxims of action in light
of abstract procedures of universalizability. A classic example is Kant's
categorical imperative. In Kant's theory, universalizability resides in a preestablished harmony among isolated agents who possess the same rational
faculties. Consistency testing rules out maxims whose general application,
from the subjective standpoint of private moral conscience, is either self-
contradictory or incompatible with rational agency.8

In Habermas's opinion, Kant's exclusion from the domain of moral
reasoning of any consideration of consequences as these bear upon the
296 POLITICAL THEORY / May 1993
happiness of those affected limits and distorts the universalization procedure,

so that the latter ends up legitimizing laws and norms that are detrimental to
the interests of some persons. This defect is ostensibly remedied by a
communicative ethic in which "one must be able to test whether a norm or a

mode of action could be generally accepted by those affected by it, such that
their acceptance would be rationally motivated and hence uncoerced."9 To
paraphrase Thomas McCarthy, it shifts the emphasis from what each person
independent of any consideration of historical interests can will to be a
general law to what all in agreement with others on such interests can accept
as a universally binding norm.
This formulation suggests that rational consensus replaces lawful consistency as a criterion of moral right, an impression that is reinforced by an early
essay of Habermas's in which he virtually equates truth and moral validity
with consensus.10 Such an equation, however, appears inconsistent with the

democratic thrust of his discourse ethic. Consensus functions as a criterion
only if it is conceived as the outcome of a perfectly rational dialogue under
ideal conditions, namely, conditions of perfectly transparent communication

unlimited by time and space. However, even if an unlimited community of
past, present, and future speakers would reach agreement under constraint-
and context-free conditions, thereby reducing the universalizability procedure to the hypothetical choice of a single, ideal "speaker," consensus would
be a sign of truth only if we further assumed that all participants possessed
complete knowledge of themselves and their world." Hence the triviality of

a consensus theory of truth.
Not surprisingly, Habermas has backed away from regarding consensus
as a criterion of truth. He now holds that consensus is a condition of
warranted assertibility. Assertion of nontrivial truth claims is warranted on
the condition that others could accept them pending rational justification.
Some of the reasons offered in justification will include specific truth criteria
that are themselves potentially falsifiable. Thus we may say that the adoption
of natural law principles by eighteenth-century political theorists was warranted given their peculiar criteria of rationality and scientific truth but would
not be so warranted in light of today's criteria, which prohibit the commission
of naturalistic fallacies.'2
If consensus warrants assertion of fallible truth claims, then it can no
longer provide a strong criterion for identifying ideological claims. As our
example of natural law shows, assertions can be accepted as warranted, that
is, as nonideologically motivated, only on the basis of truth criteria that in
the long run might not be so warranted. Unless Habermas identifies war-
ranted assertibility with an infallible notion of rational justification-a move

tantamount to retrieving a consensus theory of truth-he will have to concede
that reasonable claims might be ideological. Indeed, if we accept Habermas's
strong notion of ideology as any belief or practice that is shaped by power
relations, but which masks this fact behind an uncritically accepted validity
claim, we must conclude that because some such beliefs and practices
inevitably influence the language in which we reason, all our reasonable

claims are at least ideologically tainted.
To summarize, Habermas must be careful not to define the counterfactual
conditions of rational acceptance (warranted assertibility) too stringently lest
he reintroduce a consensus criterion of truth. Assertible are those claims that

we could accept given our present truth criteria; it is against the counterfactual expectations implicit in these-and not in some infallible notion of
perfect, transparent insight-that we judge particular claims to be deluded,
ideological, and so forth. Moreover, in many instances the criteria that we
deploy will be inseparable from discourse, practices, institutions, and techniques. These will be shaped by power relations. So the question we must
now address is how can democratic discussion be structured so as to best

criticize power relations inherent in current scientific paradigms (Kuhn),
ethical regimes, and normative practices in which truth and reason are at stake
(Foucault)?
Habermas's response to this question is to constitute moral discussion as
a public sphere that makes universal consent the goal underlying attempts to
resolve matters of public concern. The response I will defend, however, urges
the establishment of democracy in the workplace, where power relations are
more direct, local, and personal. However, before addressing this issue it will
be helpful to reexamine the role that universal consent (universalizability)
plays in moral reasoning.
Habermas defends a rigid distinction between deontological questions
concerning universal right (justice) and teleological questions concerning
personal and social good. To the former he assigns the rational justification
of obligatory norms, to the latter the prudent choice of norms. Here, practical
reason (Moralitdt) is equated with competencies requisite for the discursive
adjudication of conflicts, ethical evaluation (Sittlichkeit) with the artful
"know-how" (Klugheit) requisite for judgment (DE, 104).
Recently, Habermas has suggested that the above distinction is softer than
he had previously indicated. First, the assessment of moral norms implicates

an aesthetic evaluation and transformation of specific needs and goods.
Second, Habermas allows that speakers in practical discourse combine the
roles of prudent actor and impartial spectator, so that they bring with them
their own experiences as actors and judges in comparing the potential

consequences of norms for hypothetical situations. Valid norms must satisfy
general interests through appropriate application to a range of foreseeable
situations."3 Actors and judges likewise engage in internally simulated "discourses of application," in which the moral principle of universalizability
mandates the consideration of "all relevant aspects of a case" (MC, 207).
Moral argumentation thus involves balancing principles and conventional

responses to situations in a manner approximating a Rawlsian state of
reflective equilibrium.
Albrecht Wellmer alludes to this feature of moral argumentation in his
discussion of the inherent limits of universalization. Moral arguments arise
in concrete action contexts and almost invariably concern the justification of
exceptions to generally accepted rules. Hence they bring into play situationbound interpretations of particular contexts, needs, motives, and identities.
This means that, insofar as it applies to human reality at all, universalizability
cannot be understood as positively mandating the general observance of
norms in the manner sometimes asserted by Kant and Habermas.14 What

makes the general observance of norms possible in a realm of ends or an ideal
speech situation-the elimination of all contextual constraints (temporal,
geographical, and ideological) that would otherwise present opportunities for
conflict and reinterpretation-does not obtain in an imperfect, above all,
modem world, where ambiguities and dilemmas are the order of the day.
Given the fact that there are exceptions to every valid rule, a strict universalizability test could generate only an unconditional obligation to refrain
from following rules-such as a universal permission (or obligation) to lie,
steal, kill, and so on-the universal compliance with which would be
inconsistent or contrary to what all rational persons could want."5 Obviously,
this use of consensus (as an ethical universalization procedure) contributes
little to the critical understanding of a given society, institution, practice, or
power relation. To see how the notion of consensus figures in the critical
assessment of local, context-bound configurations of interest, power, and
motivation, we will have to examine Habermas's application of it to the
domain of law and politics.
COMMUNICATIVE ETHICS AND LEGITIMACY
Determination of the moral permissibility of an action must not be

conflated with the determination of the legitimacy of a law. Habermas
himself notes that the fallibility of moral judgment, the uncertainty of moral
motivation, and the absence of clear procedural guidelines regulating the
achievement of moral consensus pose risks that can be mitigated only by
means of coercive law.16 This social contractarian justification of law as
coordinating mechanism and safeguard for freedom does not itself legitimate
any de facto authority. Habermas never argues that we have a general
obligation to obey political authority (indeed, there may well be no such

obligation).'7 He only argues that one has an obligation to obey laws to which
one could rationally consent.
Now, to say that one has an obligation to obey laws to which one could
rationally consent is problematic because it suggests that one justifiably
might be forced to obey a law against one's will on the grounds that one was
mistaken about what one really wanted. As Isaiah Berlin observed,
Rousseau's paradox of forcing persons to be free presupposes a peculiar

conception of positive freedom grounded in a counterfactual notion of
rational agency."8 Habermas succumbs to this paradox in some of his earlier

writings, where he defines legitimacy in terms of a hypothetical consent
grounded in a counterfactual notion of generalizable interests and then

proceeds to argue that legitimacy so construed entails a corresponding moral
obligation. In more recent formulations he defines legitimacy in terms of
procedural justice, thereby circumventing the paradox. However, he stillwrongly, in my opinion-assumes that recognition of a law's legitimacy
entails a corresponding duty to obey it.
Despite this failing, Habermas is generally attentive to differences be-
tween legal and moral authority. Unlike moral norms, laws are promulgated
by predesignated authorities, apply to specific jurisdictions, and have the
backing of punitive sanctions (ED, 115-22; LM, 244). By contrast, the prima
facie obligation to obey any particular law (or legal system) rests on its
impartiality. Habermas here argues against legal positivists like Hart and
Kelsen that constitutional rules alone do not ensure impartiality (LM, 229).
He notes that the rules governing electoral representation, parliamentary
procedure, and due process are necessarily constrained by traditional prece-
dents, de facto authorities, adversarial relationships, temporal and jurisdictional restriction, and imperfect decision procedures. To the extent that such
rules are impartial, it is with respect to their rational potential for guiding
debate toward the resolution of the rightness and truth of general principles
of justice. But the proper ground of impartiality lies deeper than the rules
governing rational debate within legislative and administrative bodies. It
ultimately rests on the informal conditions and procedures requisite for

generating a rational, public consent.
Consent is not to be understood as mere assent to legal agendas dictated
by political elites. To the contrary, Habermas submits that the public (or
publics) ought to generate the agendas and policy rationales guiding admin-
istrators.'9 The idea behind this model of legitimation is communitarian in

inspiration only.20 Habermas realizes that, given the plurality of interests, the
procedures and conditions of rational communication must serve as proxy

for an antecedent harmony of substantive interests; the general will must be
achieved in rational conversation, if it is to be achieved at all. By conceiving

democracy in this way-as a medium for the critical formation of opinion
and will, hence as a medium in which citizens constitute their own individual
autonomy in solidarity with others-Habermas seeks to show how problems
pertaining to majoritarian tyranny and the rank ordering of preferences can

be mitigatedfrom within the confines of discourse without appeal to anteced-
ent natural rights or rational decision procedures."

Habermas is not advocating a model of participatory democracy that is
incompatible with the state or with independent administrative agencies that
interpret and apply the policy rationale(s) generated by the public sphere.
Even if there were no distinct political obligation to obey a given state (or
agency), there would be a moral obligation on the part of members of any
association to assure that the laws to which they consented were applied
impartially. In keeping with this view of rights, Habermas argues that the
separation of powers is not an external limit to the democratic ideal as he
once believed. Consensus without due process is tyranny; laws that are not
also legitimated by extant judicial machinery are not laws (VaV, 28ff.).22
If we understand rational consensus as warranting the acceptance of a
law's legitimacy, then, according to Habermas, we are committed to accepting the following propositions: "recommendation X is legitimate" means
"recommendation X is in the general (or public) interest" (LI); and "recommendation X is in the public interest" means "X is accepted by all affected
as justified" (L2).23 Problems immediately jump to mind with this definition

of legitimacy. X might be accepted by the public as in their collective interest
even if they know that X does not satisfy the interests of each person
individually. Maximizing the greatest happiness for the greatest number (or
choosing a policy that will improve the general condition of all citizens
present and future), a rich utilitarian might support a soak-the-rich tax statute
designed to generate revenue for an egalitarian health care system whose

benefits to her, her family, or her immediate circle of associates will not
outweigh the costs. Or, to take another example, a community of environ-
mentalists and industrial workers might accept a compromise pollution bill

as in the public interest not because it satisfies either of their particular
interests-each party, we will assume, believes that her own interest is
identical to the public interest-but because it avoids a public evil (e.g., civil
war) or facilitates a mutually beneficial alliance (against capitalists).
Given Habermas's recent acknowledgement that strategic compromises
of this sort are the normal outcomes of political negotiations in liberal

democracy, it is best to view his insistence on the generalizability of interests
as specifying a very weak conception of the common good, one that might
be acceptable to all simply owing to the absence of an agreement on some
other good that each of the negotiating parties feels is rationally preferable.
We need only recur to rational choice theory to confirm the theoretical

possibility of agreements that fail to produce a consistent-let alone maximal
-ranking of preferences.
Paradoxes of rational choice do not speak against a consensus theory of
legitimation, so long as the theory allows for compromise and stresses
rationality of process over outcome.24 Of course, if democracy failed to
satisfy minimal conditions of instrumental rationality, so that it repeatedly

generated inconsistent and/or submaximal preference rankings-thus mak-
ing goal-oriented politics meaningless-there would be no good reason to

prefer it, developmental advantages notwithstanding. Democracy may not
be the most economic vehicle for selecting public policy, but it usually
satisfies minimal standards of rationality sufficient to justify retaining it as a
vehicle of rational development. Indeed, in small-scale democracies consensus-
oriented discussion probably mitigates conflicts (differences) among preference rankings that generate paradoxes of rational choice. However, one
should not insist on strict generalizability of interests for legitimation,
otherwise one comes dangerously close to presuming a model of rational
choice that is incompatible with democracy. The procedure of ideology
critique that Habermas outlines in Legitimation Crisis suffers from this
defect. There, Habermas argued that the social critic should hypothetically
imagine how the members of a social system
would ... at a given stage in the development of productive forces, have collectively
and bindingly interpreted their needs (and which norms (they would) have accepted as
justified) if they could and would have decided on an organization of social intercourse
through discursive will-formation, with adequate knowledge of the limiting conditions

and functional imperatives of their society. (LC, 113)
As formulated above, the procedure invites us to calculate the consequences of certain institutions for the satisfaction of needs-a rather uncertain undertaking. Its main drawback, however, resides in its presumption that
a rank ordering of preferences can be rationally ascertained. Although the

possibility of such an ordering becomes increasingly remote as society
becomes more complex and pluralistic, the presumption that there must be
suppressed generalizable interests could be used to justify the legitimacy of
laws that we (the rational elite) hypothesize would or could be accepted by
those affected if they possessed transparent knowledge of their true interests.
Combined with Habermas's claim that the binding character of a norm
consists in its validity (LC, 104), this presumption could be used to justify
the imposition of valid norms on persons against their will-an implication
that Habermas himself once entertained.25
A consensus theory of legitimacy, then, must not be construed too counterfactually; that is, it must not make the satisfaction of universal interests
(LI) a necessary condition for a law's legitimacy. However, we should note

that a weaker definition of legitimacy stressing universal agreement (L2) is
equally problematic. I mentioned above that such agreement would have to
make allowances for compromises, or agreements which none or only some

of the parties believed satisfied common interests. But what if some of the
parties simply refused to compromise? Could a law be legitimate to which

only some persons consented?
Standard democratic theory holds that something less than universal
consensus-the preference of a majority or plurality-is sufficient to legitimate laws, so long as those who dissent (the minority) have an equal chance
to vote and marshal support against them. In most cases, majority rule is
morally preferable to rule by unanimous consent, as the latter would give

more value to the voice of a lone dissenter than to the combined voice of the
majority, thereby violating the principle of equality. If we reject universalization (as I suggest we do), the legitimacy of the results could only be
guaranteed by the fairness of the procedures regulating the democratic game.
Habermas himself sometimes suggests that procedures are the decisive
factors in legitimating laws. If consensus continues to play a role here, it is
as a procedural guideline: all parties to the discussion should strive to reach

agreement on a common good as disinterestedly as possible (a qualification
that by no means precludes the assertion of particular interests).26 Because

Habermas himself declares that "compromises possess a wholly undiminished worth"-indeed, he chides extremists within the Green Party for
refusing to compromise with organized labor and the Social Democratic

Party on environmental reforms-he must specify procedures by which such
agreements may be accepted as legitimate.27 Presumably, such procedures

will also explain why minorities accept the legitimacy of laws to which they
dissented. For acceptance of the legitimate form of a law, which ostensibly

follows from acceptance of the rules of the democratic game, must be
distinguished from acceptance of its content.
Habermas thus concedes that fair compromises, or strategic agreements
in which conflicting interests are harmonized in a balance of power, may be

legitimate without satisfying generalizable interests or being universally
accepted by all. However, laws regulating disputes that appear to strike a fair
compromise between irreducibily opposed interests might be illegitimate.

Habermas claims that such laws can be criticized on the grounds that they
reflect pseudo-compromises. A compromise that emerged out of a discussion

slanted in favor of one of the parties (e.g., the wealthier and more powerful)
would be invalidated on procedural grounds (LC, 111 ff.). However, a compromise that concealed a "suppression of generalizable interests" would also
be invalid. Indeed, the two defects are closely linked in Habennas's view
because the closer that negotiations approximate the conditions obtaining in

ideal speech, the less likely generalizable interests will be suppressed. It
follows that compromises are valid only if the parties in question have failed
to reach consensus on generalizable interests in impartial dialogue.

We noted above how difficult (if not impossible) it is to determine a rank
ordering of preferences, even under stringent counterfactual conditions. For
this reason, the suppression of generalizable interests is not a useful concept

for determining the fairness of a compromise. Therefore we would be better
off to focus on what Habermas has to say about the procedural requirements
for reaching compromise, such as the balance of power requirement.
It would be difficult to deny that in pluralistic societies some irreducibly
particular interests will be more powerful than others-quite apart from the
distorting influence of money, power, and ideology. Any compromise balancing the interests of animal experimentation advocates and animal rights
activists would likely favor the interests of one of these parties, no matter
how fairly it was achieved. Moreover, it is unlikely that controls regulating

humane animal experimentation will be regarded by all animal rights activ-
ists as fairly balancing their interests against their opponents'.

Habermas's discussion of civil disobedience suggests what his response
to this case might be. German peace advocates, he argues, have a right to
commit acts of civil disobedience because strategic decisions have not been
processed through democratic channels that present both sides with equal
chances for influencing leaders and public opinion. However, he also notes
that decisions processed in accordance with fair democratic procedure ought
not to be irreversible. Minorities recognize the legitimacy of majority deci-
sions only to the extent that they are reversible and, therefore, only to the
extent that they can pressure for fair compensation or fair compromise.28
It may be objected that in zero-sum games (weapons or no weapons;
animal experimentation or animal liberation) the scope for fair compromise

or compensation is limited at least as far as the most militant of interest
groups is concerned. When the majority is not likely to be reversed in the
near future (as in the case of animal experimentation), there no longer
remains any basis-on Habermas's account-for recognizing the legitimacy

of the compromise.
But this result appears counterintuitive. Should winners feel morally
compelled to compensate losers in a democratic contest? Perhaps they should
if they are indifferent to the outcome (and the losers are not). But perhaps
they shouldn't if the losers are extremists who represent views the winners
find morally repugnant. Here there is no room for compromise.
We can imagine Habermas's response to this objection: If losers don't

have to be compensated, if their views don't have to enter into compromise
legislation, and if the decision against them doesn't have to be reversible,
how can they be expected to concede the legitimacy of their opponent's law?
They can-because recognition of the legitimacy of the law does not entail
a commitment to abide by it.29 A militant animal rights advocate might agree
that the law she refuses to obey was processed in accordance with fair
democratic procedure, despite its being morally flawed. The decision for
accepting its legitimacy would be based on recognition of the fact that a
preponderance of public opinion-a preponderance sufficient to violate
Habermas's fair balance of power condition-would likely support at least
some animal experimentation for good reasons, quite apart from ideological
distortions. Although one's moral convictions should be tempered by the
reasonable voice of an opposing majority, the absence of decisive grounds
favoring either position will entitle the animal rights activist to question the
moral rightness of any compromise favoring the majority, perhaps even to

the point of justifying some sort of civil disobedience.30
DISCURSIVE PROCEDURES
AS INSTANTIATIONS OF RIGHTS
The above considerations suggest that neither generalizability of interests
nor generalizability of consent is suitable for testing the rightness of moral

actions or the legitimacy of laws. It may be more profitable, therefore, to
locate the aspect of universality in the procedures governing democratic
discussion. As Seyla Benhabib puts it, "The core intuition behind modem
universalizability procedures is not that everybody could or would agree to
the same set of principles, but that these principles have been adopted as a
result of a procedure, whether of moral reasoning or public debate, that we
are ready to deem reasonable and fair." In particular, she holds that the
principle of universal moral respect, which permits everyone capable of
speech to participate in discourse, and the principle of egalitarian reciprocity,
which stipulates symmetrical speech rights, are "quite adequate to serve as

the only universalizability test."31 Assessing this claim will involve examining Habermas's theory of communicative action. Habermas thinks his theory
provides a better grounding for rights than social contractarian alternatives.
He also believes that it establishes a link between individual autonomy and
democratic solidarity, thereby meeting both liberal and communitarian ob-
jections. Most important, however, he maintains that it offers an account of

rights that avoids any reduction to natural law or convention. This is no mean
achievement, for in Habermas's opinion, natural law theories short-circuit
democratic self-determination in their invocation of transcendent reason (or
nature), whereas conventionalist theories lack rational foundations necessary

for anchoring universal rights.
One of the presumed advantages of Habermas's discourse ethic is its

capacity to explain moral obligation. Most social contract theories, he argues,
depart from a notion of rationality that is either too abstract or too narrow to
provide a basis for rights and duties. If the model of rational choice is
economics, we are asked to imagine enlightened egoists entering into agreements aimed at maximizing personal preferences. Because Hobbesian con-
tractors are tempted to make exceptions for themselves, and agreements

under conditions of actual inequality always favor the most powerful, such
contracts cannot be morally binding.32
Social contractarians of Kantian bent try to ensure that moral incentives
prevail in the social contract by building side constraints into procedures of
economic deliberation. Rawls, for example, imposes a "veil of ignorance"
on the knowledge that parties in an original position of choice possess
regarding their personal circumstances and preferences (TJ, 152). This
approach, Habermas contends, cannot explain why self-interested persons
would be motivated to imagine themselves party to the original position in
the first place, nor can it explain why-in the absence of some knowledge of
their personal good-they would necessarily adopt a maximin decision
procedure favoring just those substantive principles of justice stipulated by

Rawls (JS, 37). However, when Rawls claims that the normative assumptions
underlying the construction of the original position and its choice bias stand
in a relationship of reflective equilibrium with respect to shared moral

institutions that form the basis for (as he now puts it) "model-conceptions"
of "the moral person" and "the well-ordered society," he nowhere shows why
these conventional institutions should have any special claim on US.33 Why
should liberties normally protected in "the constitutions of the democratic
states . . . which have worked so well" exemplify liberties chosen in the
original position?34 Habermas summarizes the difficulty with normative

approaches such as Rawls's accordingly: either they adduce specific rights
from abstract ideals of the lone theorist or they adduce them from shared
values whose validity is merely taken for granted. Habermas's alternative

circumvents this impasse by showing how our minimal commitments, re-
306 POLITICAL THEORY I May 1993
flected in the moral point of view, are necessitated, whereas our concrete
interpretations of them in the public assessment of rational needs are not.
Habermas's deontological ethic departs from the Kantian premise that the
structure of intentional action alone grounds morality. Contrary to Gewirth
and others who depart from the same premise, Habermas (following Mead)
insists that this structure can yield moral constraints only when it is placed
within the prior context of communicative interaction. Communicative interaction occurs whenever two or more persons try to reach agreement on
disputed claims for purposes of coordinating their actions freely. It is prior
to noncommunicative forms of interaction in that it is the primary medium
in which personal identity itself is shaped. The individual internalizes social
roles and shared meanings through fulfillment of role expectations built into
everyday speech actions. These include mutual expectations regarding personal accountability for one's actions, needs, and identity. Individual autonomy therefore does not precede public discourse, as freedom from prejudice
is secured only through critical resistance by others.
Habermas's treatment of reciprocity is complicated by the fact that he

regards it as both a necessary condition for communication (social interac-
tion) and a normative feature of morality. As a necessary condition for

communication it denotes the capacity to exchange speaker and listener roles
requisite for a shared understanding of meaning. This minimal reciprocity

informs communication between masters and slaves as well as between
criminals and their victims. However, in addition to communicative reciprocity, Habermas (like Kohlberg) distinguishes three levels of reciprocity, which
instantiate six successive stages of moral development. Preconventional

reciprocity is motivated by self-interest, without regard for the rightness of
the transaction or for the well-being of the other. Conventional reciprocity is
characterized by conformity to norms that are regarded as right for members
of a local community. Postconventional reciprocity, by contrast, is character-
ized by adherence to universal principles premised on an identification with

the abstract humanity of the other. Here, the rightness of a norm hinges on
weighing each person's needs equally, as given. In Habermas's opinion,

discourse ethics articulates a seventh stage of moral development, in that it
mandates a critical interpretation and revision of private needs for the sake
of reaching consensus on norms that are in the real interests of everyone (the
principle of universalization, or U).

Now Habermas claims that the coordination, integration, and socialization
of persons inhabiting modern societies depends on rational communication.

In the event of communication failure or disagreement, confidence can be
restored only through rational argumentation, which embodies postconventional moral reciprocity. He reconstructs this structure by appealing to both
the shared-but largely implicit-assumptions of competent speakers and
the theoretical hypotheses of philosophers like Stephen Toulmin, who defends a pragmatic account of argumentative validity as a more viable alter-
native to deductive or inductive approaches. Viewed from this perspective,

conversations, or what Habermas calls discourses, replace propositional
inferences as the primary concern of logic.

It is axiomatic for Habermas that discourses typically arise whenever the
justice of a norm, the sincerity of an expressed intention, or the truth of a
cognitive belief is disputed. Claims to justice and truth are of special interest
to him because whenever we assert that something is true or right we imply
that all other persons would agree with us after impartial examination of the
evidence. Consensus, not deducibility, functions as the touchstone for justification. It is consensus that bridges the gap between is and ought, and it is
consensus that enables us to escape the nihilism plaguing rationalism's

insistence on deriving meaningful prescriptions from underivable moral
axioms. Just as the principle of induction, applied under controlled condi-
tions, enables scientists to agree on the factual necessity and universality of

causal relations, so too, under controlled conditions approximating complete
impartiality and fairness, moral discussion enables citizens to reach factual
agreement on the rightness of norms in an equally binding-albeit conditional-manner.35
Adopting the recommendation of Robert Alexy, Habermas formulates

these conditions of discourse as pragmatic rules:
1. Every subject with the competence to speak and act is allowed to take part in
discourse.
2. Everyone is allowed to question any assertion whatever. Everyone is allowed

to introduce any assertion into the discourse. Everyone is allowed to express
his attitudes, desires, and needs.
3. No speaker may be prevented by either internal or external coercion from

exercising his rights as laid down in (1) and (2). (DE, 89)
Habermas's argument that postconventional moral reciprocity adheres in
discourse owes a great deal to Karl-Otto Apel's observation that the relationship obtaining between discourse and moral reciprocity is neither deductive
nor inductive but cogent in a manner that can best be captured by the idea of
a performative contradiction. Using an argument first articulated by Jaako
Hintikka, who noted that utterances such as "I doubt that I exist" involve a
performative contradiction between a speech act and its pragmatic presup-
position, Apel maintained that the skeptic's refusal to acknowledge the claim
to universal validity inherent in his factual utterances and moral assertions,
as well as his refusal to acknowledge basic speech rights, is belied by his

attempt to persuade others rationally. Therefore, basic concepts of universal
validity as well as basic notions of freedom and equality are not ideas that
participants in discourse could elect to reject, without contradicting the

pragmatic presuppositions of their own behavior. Although there is no
contradiction on the part of the skeptic who refuses to engage in certain
justifactory practices, there is a kind of weak consistency, if and so long as
he desires to maintain himself in a rational identity whose stability is
maintained through mutual recognition (DE, 102). By the same token, the
relativist who attempts to defend the radical incommensurability of substantive, context-dependent schemes of rationality can only do so by successfully
translating them into a common language, which will be governed by

higher-order, postconventional procedures of communicative reason.36
In Apel's opinion, this demonstration proves that U "belongs to those
transcendental-pragmatic presuppositions of argumentation that one must
always (already) have accepted, if the language game of argumentation is to
be meaningful."37 Habermas favors a weaker interpretation of the argument.
U is not constitutive of but only regulative for argumentation; in failing to

live up to the counterfactual expectations implicit in U, one is not necessarily
ceasing to argue meaningfully. Stated differently, if U were transcendentally
necessary for argumentation, it would constrain us, but then it would lack
normative force. On the other hand, whatever normative (regulative) force it
possesses is not simply prescriptive either (see below). Finally, if by "transcendentar' we also mean "knowable with reflexive (a priori) certainty," U
would not be transcendental, at least not on Habermas's view of philosophy.
His conception of postmetaphysical philosophy-what he calls rational

reconstruction-is as much empirical description and collective interpretation as it is phenomenological intuition. So conceived, philosophy is at best
capable of generating claims that are fallible and uncertain, however universal their scope (DE, 96).
Before proceeding to our primary topic-the grounding of rights and

procedures necessary for legitimation-I will briefly note some difficulties
with Habermas's grounding of postconventional moral reciprocity. To begin
with, the argument appeals to an insufficiently developed distinction between
communicative and strategic types of action. The rationality of the latter,

which consists of game-theoretic calculations aimed at coordinating interaction for purposes of successfully realizing personal goals, is wrongly char-
acterized by Habermas as manipulative, egoistic, and atomistic, as opposed

to the openness, impartiality, and consensuality of communicative rationality. Even the unconstrainedforce of the better argument succeeds in persuad-
ing only to the extent that the arguer successfully anticipates the possible
reactions of her interlocutor(s). Indeed, if language is mostly convention and

convention is mostly coordination rule aimed at stabilizing strategic calcu-
lations, then strategic rationality-replete with its game-theoretic configuration of the free rider problem and the Prisoner's Dilemma-will necessarily
supervene on communicative rationality.38
Second, there are problems with Habermas's account of the relationship

between discourse and morality. The universalization principle enjoins
against considering natural and cultural differences in specifying who is

permitted to participate in discourse. Yet this does not appear to be a
presupposition of argument as such. Some Greek philosophers, for example,

had no difficulty restricting dialogic participation to their fellow male citi-
zens. Conceding this point, Habermas now claims that "of themselves these
normative obligations do not extend beyond the boundaries of a concrete
lifeworld of family, tribe, city, or nation." Such boundaries, he adds, "can be
broken through only in discourse, to the extent that the latter is institutionalized in modem societies" (JS, 48).
A further difficulty with Habermas's argument concerns his reliance on

developmental psychology to support his claim that the achievement of
postconventional moral competencies are irreversible. There is now a substantial body of literature devoted to the formidable conceptual difficulties
attending this claim: Is it possible to defend a homology between social
evolution and individual development? Can one abstract a universal typology

of moral dilemmas that can be translated from the sociolinguistic context of
one culture into that of another? If not, how can the universality of the theory
be cross-culturally established? Does it make sense, in general, to talk about

increased problem-solving capacity tout court, rather than increased problem
solving relative to some culturally specific, context-bound set of problems?39
Habermas is aware of the magnitude of these difficulties, but he has yet
to concede that they are insuperable (MC, 21ff.). The lack of strong evidence
confirming Kohlberg's sixth stage of moral development does not, he insists,

count against the logical superiority of universalistic moral theories generally. Nor, he believes, does the incidence of moral regression and relativism
among test subjects. Ultimately, he thinks that these difficulties can be
explained away in terms of a disjunction between levels of attained moral
consciousness and levels of motivation or between levels of justification
and levels of application (MC, 171ff.). Most important, Habermas rejects

Kohlberg's contention that the highest stages of conflict resolution possess a
"hard" or "natural" status (JS, 33ff.). Lower stages of cognitive and moral
development can be empirically confirmed as highly probable because the

competencies in question are organically based. This appears to be the case
with respect to the coordination of social perspectives and the ability to
310 POLITICAL THEORY/ May 1993
perceive objects as invariant through perspectival changes in their aspects.
Such is not the case, however, with postconventional moral stages.'

Empirical psychology alone cannot articulate the different levels of competence that obtain at this stage because they revolve around a reflective
capacity to draw distinctions-between the abstract idea of a universalistic
morality and various interpretations of it or between fundamental principles

ofjustice and specific rules and applications-that are themselves philosophical. Even neo-Arsitotelianism and skepticism (corresponding, respectively,
to conventional stages 4 and 4.5 on Kohlberg's scale) find postconventional
articulations at the philosophical level. Consequently, Habermas is reluctant
to grant postconventional stages a natural status. Instead, he tells us, we have

to view utilitarian, social contractarian, and deontological theories as providing different interpretations of a more basic idea: the moral point of view.
Which of these ultimately proves most satisfactory in accounting for our

moral institutions is a matter to be decided in practical and theoretical
discourses between specialists and test subjects (CD, 260). Such undecidability might also explain the preference given to utilitarian values in democratic
theory that was revealed earlier here in the examination of consent.
Let us leave these difficulties aside and return to a more basic question:
How does Habermas's grounding of a postconventional moral point of view
suggest a justification for democratic rights and procedures that avoids
conventionalism and rationalism? The question demands a response in light
of Habermas's tendency (noted above) to define justification in terms of
either a real or hypothetical (ideal) consensus. If Habermas claims that
democratic rights and procedures are justified because persons just happen
to agree that they satisfy common interests, his justification succumbs to
conventionalism. Aside from committing a naturalistic fallacy, this response
generates self-referential difficulties: what legitimates the agreement on
rights and duties would be procedural rights and duties regulating the
reaching of agreement, and what legitimates agreement on these procedural
rights and duties would be agreement on the procedural rights and duties
governing that agreement, and so on ad infinitum (LC, 110).41 One way to

avoid this infinite regress (or circle) is to appeal to the idea of a hypothetical
consensus of the sort favored by Kant and Rawls. However, this manner of
proceeding merely conceals a rational choice behind the imaginary facade
of collective agreement-a procedure, I noted, that is rejected by Habermas.
Habermas's way out of this dilemma is to split the difference between

moral ideas implicated in argument and political rights democratically chosen without entirely severing their connection. As noted above, the moral ideas
underwriting democracy are unconditionally valid in a quasi-transcendental

sense. Their validity and force cannot depend on rational consent because
rational consent already presupposes them. Their violation would not infringe the sovereignty of a general will so much as it would entail a pragmatic
contradiction. As Habermas puts it, because there are "no alternatives to these
rules of argumentation," they themselves need not be justified (DE, 95).
Strictly speaking, then, it makes no sense to talk about the rightness or
legitimacy of postconventional moral reciprocity or the ideas of autonomy,
equality, and universality implied therein. At most, we might question the

theoretical unavoidability and significance of this moral fact. Such questioning cannot cease to be regulated by moral reciprocity so long as it takes itself
seriously as a rational undertaking. By the same token, however, it makes no
sense talk about the rational necessity of prescriptive rights. Prescriptive
principles can only be justified as morally binding in practical discourse. As
Habermas himself notes, even the principle of discourse ethics is too sub-
stantively prescriptive to be contained in the principle of universal recognition regulating discourses generally (DE, 93).
Not only are the formal rules of discourse too abstract to provide concrete
guidance in the institutionalization and organization of democratic discourses, any attempt to use them in this way would again involve the
commission of a naturalistic fallacy (EzD; 156). This does not mean that rules
of discourse are only facts or necessary conditions of human agency and, as
such, devoid of normative force. Neither the semantic distinction between is
and ought nor the formal logical injunction against inferring prescriptive
imperatives from descriptive statements precludes a qualified moral realism
with respect to the regulative force of these rules. Like Kant, Habermas
describes them as a fact of reason. As a fact of reason implicit in
communicative action, such rules possess a regulative force, expressive of

postconventional moral reciprocity, that is more compelling than the merely
obligatory force of freely chosen prescriptive principles but less compelling

than the transcendental necessity of constitutive rules. Indeed, it is precisely
because they occupy a space between transcendental conditions and prescriptive rights that they can provide an anchor for the latter.
To paraphrase Habermas, our communicative commitments compel us

(however weakly and conditionally) to establish equal democratic rights,
even if they do not compel the establishment of any particular institutional

embodiment of them. These commitments are not totally devoid of content.
Although they are too abstract to enable us to infer directly the priority of,
say, council democracy over other forms of democracy, they clearly favor
the adoption of institutions that promote rather than obstruct the equal and
effective right of each person to public speech and association (CES, 186).
In conjunction with other facts about human freedom and with Habermas's
own analysis of the developmental dynamics underlying the welfare state,
they might well compel-more strongly than Habermas himself has hitherto
indicated-the adoption of some kind of worker democracy.
COMMUNICATIVE ETHICS AS A
REGULATIVE IDEA FOR DEMOCRATIZATION
I have argued that Habermas's discourse ethic defines legitimacy in terms

of an idea of democratic procedural justice. Although Habermas sometimes
says the generalizability of interest or of agreement is necessary for democratic legitimation, this emphasis on outcome is fraught with serious difficulties and is belied by his own claim that what is decisive for a minority's
recognition of a law's legitimacy is that the law be processed through fair
procedure. To be sure, the will of the majority is not identical to reason. Yet
the procedure by which such a will is generated implies an anticipation of

reason (Vermutung der Vernunft) (VaV, 20) that is reflected in fallible, finite
discussions oriented toward reaching universal agreement on what is right or

in the common good (VaV, 19). The idea of democratic procedural justice is
grounded neither in convention nor in transcendent reason but in a commu-
nicative practice incorporating a process of collective interpretation and

moral learning (the development of rational faculties).
Despite Habermas's insistence that the determination and validation of
institutional arrangements be procured through democratic consent, he notes
that the democratic idea limits the range of acceptable options (ME, 203).
The rules of discourse already imply basic rights to free thought, speech, and
association that transcend convention and require for their enforcement, if
necessary, international military intervention.42 Furthermore, Habermas's

own account of the evolution of the social welfare state proves that these
political rights can only be procured through social rights. Most important,
he now holds that all rights depend on the solidarity fostered by a democratic
culture. Imperfect duties that enjoin commission of beneficent actions are no
less privileged than perfect duties that enjoin forbearance from injurious
actions.43
Habermas's view that individual freedom (justice) and democratic welfare

(solidarity) are equiprimordial thus serves to counter two misleading impression of his moral theory: that it stresses abstract rights over other values, such
as care for others as distinct persons, and that it provides no safeguards
against the tyranny of the majority." Because, in Habermas's opinion,

individuation and socialization are complementary communicative processes,
each has an interest in preserving the integrity of the life context that one
shares with others. Indeed, one's individual freedom not only depends on the
well-being of particular persons for whom one cares, it depends on the
welfare of one's entire society (JS, 47). Conversely, because solidarity fosters
respect for the uniqueness of the concrete other, it cannot require democratic
legitimation of all private need interpretations, just those that are generally
accepted as having a public impact.45
Aside from Habermas's reluctance to specify the particular institutional
forms that political rights would take, there is another reason, rooted in his
theoretical approach, that accounts for his failure to enumerate a list of basic
rights beyond (formal) political rights and social entitlements. That is his
emphasis on formal properties of communication. As noted above, he insists
that the regulative force of universal communication procedures cannot
extend to action; they neither regulate action nor prescribe moral and political
obligations.' Now, if he had instead approached the matter of rights from the
standpoint of ethics rather than epistemology, he could have addressed the
substantive conditions for real autonomy rather than the formal conditions
for possible autonomy. Following this excursion into political ethics, one
could show that the conditions for free action cannot be restricted to the
procedural norms governing rational communication but anticipate a more

radical theory, one that would truly be a theory of participatory democracy.47
By free action I mean both negative noninterference and positive choice.

These two terms condition each other: capacity for choice presupposes both
freedom from arbitrary interference, understood as direct physical and mental
coercion and freedom from less overt forms of domination, rooted in power
relations structuring economic, social, and cultural practices (discourses). It
also presupposes access to material and educational resources that further the
cultivation of rational deliberation and the imagination of possible alterna-
tives. Conversely, the capacity to avoid situations in which our freedom will
likely be interfered with or constrained is proportional to our access to
material and educational sources. Conceived in this way, free action cannot
be separated from self-realization, or activity aimed at enhancing the capacity

for free action as such. Social interaction and communication are necessary
but not sufficient for self-realization. Other conditions include work and
consumption activities.
Habermas does not deny that the structuring of the workplace and the
social distribution of costs, benefits, and resources impinge on the capacity

of individuals to realize themselves as distinct persons and rational agents
(despite the fact that he attributes this more to communication than to labor).
However, he hesitates to draw what appears to me to be an obvious conclu-
sion from this fact, namely, that each worker (consumer) ought to have an
equal right to determine collectively how his or her work is structured and
how benefits, costs, and resources are to be distributed.
One argument for this claim runs as follows: If there is no good reason
why one person's freedom should be worth any more than another's, there is
no good reason why one person should be more privileged in this respect
than another, that is, have fewer arbitrary hindrances to and more positive
resources for the exercise of collective choice involving matters that affect
him (her). Assuming that all persons ought to have equal rights, it follows
that they ought to have equal rights to the conditions for exercising rights.
Furthermore, because (a) only citizens can determine concretely what these
conditions are, (b) such determination generally presupposes democratic
discussions regarding the structuring of the workplace and the distribution
of benefits and burdens, and (c) the above requirements would be violated if
their satisfaction was made contingent on some external authority (e.g., the
benevolence of a factory owner), it follows that consumers and producers of
goods ought to have a prima facie right to participate in democratic discussions regarding the production and distribution of goods requisite for the
maintenance of their own freedom.
Radical critics have conceived the democratic right to participate in

decisions about the production and distribution of material resources requi-
site for full democratic participation in three ways. Some (e.g., Markovic)
have conceived this right to entail the abolition of an autonomous market as
well as the abolition of private ownership of the means of production. On
this model, democratically structured production units and community asso-
ciations would elect representatives to central planning boards. Others (e.g.,
Gould) have conceived participation as functioning within democratically

structured economic units that are privately owned (by the workers themselves) and that interact in accordance with relatively autonomous market
demands. Finally, some have conceived participation along some intermediary path, namely, as involving a combination of council democracy, regulated
markets, and public control.8 I shall argue that discourse ethics requires
democratic participation in this third sense.
Now it is tempting to regard Habermas's skepticism about "simple recipes
of workers' self-management" as indicating a general indifference toward,
or even dismissal of, all types of workplace democracy. This assessment is

premature. First, Habermas's skepticism is directed against romantic conceptions of workplace democracy that envision the abolition of economic
markets and/or administrative bureaucracies-an eventuality that appears

contrary to rational efficiency, self-realization, and impartial justice. Second,
because he believes that the abolition of labor markets and cultural privileges
associated with class are preconditions for a fully democratic state, he could
be expected to favor a decentralized, worker-controlled economy.49 Third,
Habermas recognizes that segmented labor processes that separate intellec-
tual management from manual labor contribute to a "fragmentation of

consciousness" in which "the need for normatively secured or communicatively achieved agreement is decreased and the scope of tolerance for merely
instrumental attitudes, indifference, or cynicism is expanded" (CD, 281).

Finally, Habermas's positive reception of Foucault's insights regarding the
local, relational, and strategic manner in which power is exercised suggests

a further reason why he would want to institute democracy in the workplace:
the critical exposure of power relations that ideologically constrain discur-
sive practices must be undertaken in the first instance at the occupational and
domestic level.
Against this line of reasoning one could point out that Habermas desig-
nates the public sphere, not the workplace, as the primary locus of radical,
participatory democracy. This designation follows from two considerations.
On the one hand, Habermas assigns public spheres to a communicatively
structured life-world and economic units to a media-steered system. Because,
as I have argued elsewhere, the distinction between life-world and system on
which this assignment rests is untenable, this consideration need not concern
us.50 On the other hand, the universalization principle underlying discourse
ethics requires that each person potentially affected by any political decision
have the opportunity to participate in its formulation and resolution."1 Inas-
much as economic decisions affect us all, they should not be left entirely to
the producers themselves.
Habermas's location of participatory democracy in the informal associations that compromise the public sphere in no way speaks against the
democratization of the workplace. It does, however, speak against privately
owned and controlled democratic cooperatives that leave no room for public
participation in decisions regarding production and distribution. Regardless
of whether the sources for funding cooperatives are private or public, the
coordination and planning of a complex economy will require some government regulation, the rationales for specific policies coming from overlapping
public spheres (community associations, consumer and environmental
groups, etc.). 52 By the same token, because we inhabit overlapping public
spheres, enforcement of universal democratic rights will oppose a democratic
centralism based exclusively on corporate (i.e., occupational) representation.

For Habermas, the distinct advantage of a mass democratic system organized
along party lines resides precisely in its capacity to provide associative bases
that transcend economic, ethnic, and regional boundaries.53 To offset the
disadvantages of the party system-its tendency, as an extension of the
government, to manipulate public opinion and obscure social antagonism
behind diluted programs-he looks to the spontaneous proliferation of informal, unincorporated, grass-roots associations. This concession to the anar-
chist and populist tradition, he thinks, provides the only guarantee that the
issues and arguments that elected representatives bring to bear in debating

the public utility of law will reflect an autonomous-if not wholly rationalset of needs.
To conclude, a political system structured in accordance with discourse
ethics must consist of both participatory organizations, comprising nonoccupational public spheres and economic units, and formally organized mass
party organizations and state bureaucracies. Democracy and rationality will

vary depending on features peculiar to these structures: more orientation
toward consensus and procedural equality at the local and occupational level
(and hence more social rationality); more compromise and procedural inequality at the level of party politics and administration (and hence less social
rationality).54
NOTES
1. Cf. K. Arrow, Social Choice and Individual Values (New York: Wiley, 1951); and W.
Riker, Liberalism Against Populism: A Confrontation Between the Theory of Democracy and
the Theory of Social Choice (San Francisco: W. H. Freeman, 1982).
2. J. Elster, Sour Grapes (Cambridge: Cambridge University Press, 1983), chap. 2; and
"The Market and the Forum: Three Varieties of Political Theory," in Foundations of Social
Choice Theory, edited by J. Elster and A. Hylland (Cambridge: Cambridge University Press,
1986).
3. This position is closely identified with the Praxis School, whose most prominent
representatives are Mihailo Markovie, Gajo Petrovic, and Svetozar Stojanovic.
4. Cf. J. Habermas, The PhilosophicalDiscourse of Modernity: Twelve Lectures, translated
by F. Lawrence (Cambridge: MIT Press, 1988), 75-82.
5. For a sampling of the literature on communicative ethics, see The Communicative Ethics
Controversy, edited by S. Benhabib and F. Dallmayr (Cambridge: MIT Press, 1990).
6. Cf. C. Gould, Rethinking Democracy: Freedom and Social Cooperation in Politics,

Economy, and Society (Cambridge: Cambridge University Press, 1988), 16-18, 124-27.
7. Cf. P. Dews, Habermas: Autonomy, and Solidarity. Interviews with Jiirgen Habermas
(London: Verso, 1986), 187.
8. R. M. Hare links universalization to the semantic principle requiring consistent usage
of predicates in similar cases. Applied to morality, it requires that a rule or obligation applying
in situation X to person P apply to all others in situations comparable to X. Habermas argues

that consistency requirements like this fail to capture the meaning of impartiality. Only when
universalization is linked to public defendability (Gert) and equality of treatment (Singer) does
it approximate the meaning of impartiality. Cf. J. Habermas, "Discourse Ethics: Notes on a

Program of Philosophical Justification," (hereafter DE), in Moral Consciousness and Communicative Action, translated by C. Lenhardt and S. Nicholsen (Cambridge: Cambridge University
Press, 1990), 64ff. (hereafter MC); R. M. Hare, The Language of Morals (Oxford: Oxford
University Press, 1952); Bernard Gert, Moral Rules (New York, 1976); and Marcus Singer,
Generalization in Ethics (New York: Alfred A. Knopf, 1961).
9. J. Habermas, "Justice and Solidarity: On the Discussion Concerning 'Stage 6,"' Philosophical Forum 21 (Fall-Winter 1989-90), at 36 (hereafter JS).
10. J. Habermas, "Wahrheitstheorien," in Vorstudien und Erganzungen zur Theorie des
kommunikativen Handelns (Frankfurt: Suhrkamp, 1984), 127-83 (hereafter VTKA).
11. That Habermas has not entirely transcended the monological method of ideal role taking
is borne out by his claim that, in moral matters strictu sensu, that is, "when it is a question of
examining norms with a genuinely universal domain of validity," consensus functions as a

regulative idea in the sense that arguments are "played out in the 'internal forum' " (JS, 41).
12. J. Habermas, "A Reply to My Critics," in D. Held and J. B. Thompson, Habermas:
Critical Debates (Cambridge: MIT Press, 1982), 273ff. (hereafter CD).

13. Although Habermas identifies justification (Begrundung) and application (Anwendung)
as two distinct steps of moral argumentation, his acceptance of Klaus Gunther's formulation of
the universalizability test, which incorporates considerations of contextual applicability, sug-
gests that the two are more closely linked. Cf. J. Habermas, Erlauterung zur Diskursethik
(Frankfurt: Suhrkamp, 1991), 94-96, 137-42 (hereafter EzD); D. Wiggins, Needs, Values, Truth
(Oxford: Oxford University Press, 1987), 82; K. Gunther, Der SinnfirAngemessenheit (Frankfurt: Suhrkamp, 1988), 23-100; and David Ingram, "The Postmodern Kantianism of Arendt and
Lyotard," and Habermas and the Dialectic of Reason (New Haven, CT: Yale University Press,
1987), chap. 11.
14. Habermas's response to this criticism hinges on the prima facie status of normative
justification and obligation in light of ever changing contexts of action. Yet, despite his
recognition of the fallibility of moral argumentation and the plurality of competing situational
descriptions (EzD, 166), he insists that situations appropriately covered by two or more norms
be adjudicated by a principle of coherent order determining the choice of precisely one correct
norm (EzD, 140ff.). Cf. A. Wellmer, Ethik und Dialog: Elemente des moralischen Urteils bei
Kant und in die Diskursethik (Frankfurt: Suhrkamp, 1986), 54-112 (hereafter ED); and my
criticism of Habermas in "Dworkin, Habermas, and the CLS Movement on Moral Criticism in
Law," Philosophy and Social Criticism 16 (1990): 237-68.
15. ED, 65-66. Rainer Dobert observes that neither perfect moral duties, such as promise
keeping, nor "natural" imperfect duties underwriting mutual self-preservation, such as helping
others who are in distress, are decidable by universalization procedures. "Wider die
Vernachliissigung des 'Inhalts' in den Moral-theorien von Kohlberg und Habermas. Im-
plikationen fur die Relativismus/Universalismus-Kontroverse," in Zur Bestimmung der Moral,
edited by W. Edelstein und G. Nunner-Winkler (Frankfurt: Suhrkamp Verlag, 1986), 86-106.

16. Habermas argues that we cannot always be expected to act morally in the absence of
legal safeguards and other institutional supports (EzD, 198). Also cf. J. Habermas, "Law and
Morality," The Tanner Lectures on Human Values (Salt Lake City: University of Utah Press,
1988), 244 (hereafter LM).

17. Cf. Carole Pateman, The Problem of Political Obligation: A Critical Analysis of Liberal
Theory (Chichester: Wiley, 1979); Robert Paul Wolff, In Defense of Anarchism (New York:
Harper & Row, 1970); and Richard Flathman, The Practice of Political Authority: Authority and
the Authoritative (Chicago: University of Chicago Press, 1980).
18. I. Berlin, "Two Concepts of Liberty," in Four Political Essays (Oxford: Oxford
University Press, 1970), 132.
19. The relevance of discourse ethic to public policy planning is amply documented in J. Forster,
ed., Critical Theory and Public Life (Cambridge: MIT Press, 1985).
20. Habermas accepts the communitarian critique of abstract individualism but decries its
reactive affirmation of strong, traditional communities. See, forexample, his critique of Sandel,
Taylor, and Maclntyre (EzD, 18ff., 176-84, 208-17).

21. J. Habermas, "Ist der Herzschlag der Revolution zum Stillstand gekommen?
Volkssouveranitiit als Verfahren. Ein normativer Begriff der Offentlichkeit?" in Die Ideen von
1789 in derDeutschen Rezeption (Frankfurt: Suhrkamp, 1989), 7-36 (hereafter VaV).
22. J. Habermas, Legitimation Crisis, translated by T. McCarthy (Boston: Beacon, 1975),

111 (hereafter LC).
23. J. Habermas, "Legitimation Problems in the Modem State," in Communication and the
Evolution of Society, translated by T. McCarthy (Boston: Beacon, 1979), 204 (hereafter CES).
24. Cf. J. Bohman, "Communication, Ideology, and Democratic Theory,"American Political
Science Review 84, no. 1 (March 1990): 93-109.
25. Cf. J. Habermas and N. Luhmann, Theorie der Gesellschaft oderSozialtechnologie? Was
leistet die Systemforschung (Frankfurt: Suhrkamp, 1971), 243ff., cited in LC at 101.

26. However, in LC at 109 Habermas expresses the rule of consensus in a nmanner that requires
the "transfer[ring] of subjective desires into generalizable desires." This formulation of the rule
could be construed as hostile to pluralism. Conversely, when many laws are regarded as morally
repugnant by a substantial minority-and this despite the fairness of procedural safeguards-not

only the stability of government but also its legitimacy is at stake.
27. J. Habermas, Die Neue Uniibersichtlichkeit (Frankfurt: Suhrkamp, 1985), 241. This
concession appears to undermine his objection to Ernst Tugendhat's interpretation of agreement
as a "common decision" equilibrating particular interests under conditions of fair compromise

(cf. DE, 72). For his critique of the Green Party, see P. Dews, 182, 215.
28. J. Habermas, "Ziviler Ungehorsam-Testfall fur den demokratischen Rechtsstaat. Wider
den authoritarischen Legalismus in der Bundesrepublik," in Die Neue Uniibersichtlichkeit.
Habermas adopts Rawls's view that justifiable civil disobedience must (1) not endanger the
constitutional order through acts of violence, (2) have as its aim the conscientious correction of
an egregious injustice, and (3) be undertaken only after all legal remedies have been exhausted
(p. 83). Moreover, he follows Dworkin in conceiving civil disobedience as an indispensable

device-along with judicial review-for adjusting legal requirements to the demands of changing political interests in cases where the will of the people (and its constitutional embodiment)
is not adequately represented (p. 88). As such, civil disobedience symbolizes a potentially
universalizable (legitimate) interest that supersedes the legality of parliamentary decision,

especially when the decision does not reflect public opinion or effects changes that are
irreversible, that is, that create permanent minorities or bind the democratic sovereignty of the
people for an indeterminate duration, as in the case of German-based American missile

installations (p. 94). It is interesting to note that Habermas no more than Rawls adequately
acknowledges justifiable acts of civil disobedience that protest morally legitimate laws, or laws
that appear to satisfy ideal as well as real (legal) procedural constraints. Cf. J. Rawls, Theory of
Justice (Cambridge: Harvard University Press, 1971), paras. 55-59 (hereafter TJ); and R.
Dworkin, "Civil Disobedience," in Taking Rights Seriously (Cambridge: Harvard University
Press, 1977).
29. Indeed, Habermas notes that even morally justified norms only obligate on condition
that they apply to the situation at hand and do not impose practically impossible expectations
(EzD, 198).
30. In the essay on civil disobedience mentioned above, Habermas argues that democratic
procedures at most warrant recognition of the legality of a law, not its legitimacy, which (he
argues) still appeals to a hypothetical general will.
31. S. Benhabib, "In the Shadow of Aristotle and Hegel: Communicative Ethics and Current
Controversies in Practical Philosophy," Philosophical Forum, 12 (hereafter SAH).
32. Although Elster has been critical of democrats like Habermas who emphasize the virtues
of process values over outcomes (see "The Market and the Forum"), he has recently sided with
Habermas against rational choice theorists (esp. David Gauthier) who attempt to derive moral
side constraints from economic rationality. As he notes, maximizing behavior cannot substitute
for moral rules in constituting stable, legitimate order because contracts among economic
maximizers inevitably favor the more powerful. Hence it is rational to bear the economic costs
of democracy in the name of social justice. See D. Gauthier, Morals by Agreement (Oxford:
Oxford University Press, 1986); and J. Elster, Solomonic Judgements: Studies in the Limitations
of Rationality (Cambridge: Cambridge University Press, 1989), chap. 5.

33. J. Rawls, "Kantian Constructivism in Moral Theory," Journal of Philosophy 77 (1980):
515-72. Rawls argues that the range of socially regulated goods must be preselected in advance
of the hypothetical deliberations in the original position. In A Theory of Justice (1971), the list
of primary goods is drawn up with reference to general psychological assumptions regarding

the prerequisites for carrying out a rational plan of life. However, in "Social Unity and Primary
Goods" (1982), they are justified as those that "are necessary for realizing the powers of moral
personality." The change in emphasis from a relatively neutral justification of primary goods in
terms of rational choice to a justification based on a definite conception of moral autonomywhat Rawls, in reference to a model-conception of the person, calls the reasonable-is not
inconsequential. For one thing, it shows that conditions of rational choice in the original position
are already circumscribed by moral presuppositions, even if the economic rationality of the
participants is not. For another, because personality traits now take over the burden of grounding
justice formerly assumed by the ideal procedures underwriting the original position, it can be
argued-as Habermas does-that Rawls has abandoned a cognitivist philosophical justification

of morality in favor of a politically oriented ethics founded on a partisan view of a "thick"
conception of the good (EzD, 128ff.).
34. J. Rawls, "The Basic Liberties and Their Priority" in The Tanner Lectures on Human
Values, vol. 3, edited by S. McMurrin (Salt Lake City: University of Utah Press, 1982), 6.
35. Habermas, "Wahrheitstheorien," 165.
36. Habermas directs Donald Davidson's famous transcendental refutation of incommensurable conceptual schemes against Alasdair MacIntyre's defense of incommensurable schemas
of rationality. Although Maclntyre (like Kuhn) argues that communication between untranslatable schemas is possible, he holds that this necessitates the conversion to a new way of life-a
state, Habermas believes, that would entail either a loss of identity or a schizophrenic splitting
of identity (EzD, 213-18). Cf. A. Maclntyre, Whose Justice? Whose Rationality? (Notre Dame:
University of Notre Dame Press, 1988); D. Davidson, "On the Very Idea of a Conceptual
Scheme," in D. Davidson, Inquiries Into Truth and Interpretation (Oxford University Press,
1985), 183-98; and my critique of Davidson in "The Copernican Revolution Revisited: Para-
digm, Metaphor, and Incommensurability in the Historiography of Science: Blumenberg's

Response to Kuhn and Davidson," in History of the Human Sciences (forthcoming).
37. K.-O. Apel, "The Problem of Philosophical Foundations in Light of a Transcendental
Pragmatics of Language," inAfterPhilosophy, edited by K. Baynes, J. Bohman, and T. McCarthy

(Cambridge: MIT Press, 1987), 277.
38. Cf. J. Habermas, The Theory of Communicative Action: Vol. 1. Reason and the Rationalization of Society, translated by T. McCarthy (Boston: Beacon, 1984), 10, 85, 273-74;
D. Lewis, Convention: A Philosophical Study (Cambridge: Harvard University Press, 1969);
and J. Johnson, "Habermas on Strategic and Communicative Action," Political Theory 19 (May
1991): 181-205. For further discussion of the distinction between strategic and communicative
action, see my essay "Foucault and Habermas on the Subject of Reason," in Gary Gutting, ed.,
The Foucault Companion (Cambridge: Cambridge University Press, 1993).
39. Cf. P. R. Dasen, ed., Piagetian Psychology: Cross Cultural Contributions (New York:
Halstead, 1977).
40. See T. McCarthy, "Rationality and Relativism: Habermas's 'Overcoming' of Hermeneutics," in CD, 72-73.
41. See J. Paul, "Substantive Social Contracts and the Legitimate Basis of Political Author-
ity," Monist 66 (1983): 517-28; Benhabib, Philosophical Forum, 8-9; and Gould, Rethinking
Democracy, 127. Gould accuses Habermas of circularity here. Benhabib defends Habermas
against this charge but neglects to mention that the rights to which we are compelled in discourse
are not, strictly speaking, prescriptive rights as Alexy's formulation appears to imply.
42. It was such an appeal to universal rights (Volkerrechte) that largely undergird Habermas's
qualified support for a measured, military response to Iraq's violations of Kuwait's sovereignty
during the Gulf war. See J. Habermas, "Wider die Logik des Krieges: Ein Pladoyer fur
Zuruckhaltung, aber nicht gegenuber Israel," Die Zeit (overseas ed.) 46 (22 Feb. 1991), 16.
43. For Habermas, the distinction accorded perfect duties consists in the fact that they directly
regulate and reflect the minimal conditions necessary for communicative action and discourse
(EzD, 174ff.).
44. Benhabib for one criticizes Habermas's Kohlbergian tendency to subordinate the ethics
of solidarity and care to the morality of individual rights. See S. Benhabib, 'The Utopian
Dimension in Communicative Ethics," in Critical Theory: The Essential Readings, edited by
David Ingram and Julia Simon-Ingram (New York: Paragon, 1991), 388-99; and Carol Gilligan,
In a Different Voice (Cambridge: Harvard University Press, 1979).
45. No set of political principles can assure against tyrannical outcomes. Democracy
governed by the principles of discourse ethics is no exception, for the demand that all needs be
validated through public discourse favors the political activist (and orator) over the domestic
caretaker. Cf. J. Fishkin, Tyranny and Legitimacy: A Critique of Political Theories (Baltimore:
Johns Hopkins University Press, 1979), and J. Donald Moon, "Constrained Discourse and Public
Life," Political Theory 19, no. 2 (May 1991), 202-29.
46. Habermas here criticizes Apel, who expects discourse ethics to tell us why we should
behave morally as well as what we should do (EzD, 185-99). Because Wellmer does not
adequately distinguish Apel's position from Habermas's, he wrongly directs Hegel's critique of
ethical formalism against the latter. However, as Habermas points out, Hegel's critique assumes
that ethical formalism provides strong criteria for deducing substantive outcomes-a view that
is actually closer to Apel's than to either his or Kant's deontological ethic (EzD, 9-30, 135ff.).
47. This line of argument is developed in greater detail by Gould (loc. cit.).
48. See D. Schweickart, Capitalism or Worker Control: An Ethical and EconomicAppraisal
(New York: Praeger, 1981).
49. Habermas does not talk about abolishing labor markets per se, but he does mention the
elimination of unemployment as basic to the socialist ideal he defends. See J. Habermas,

"Nachholende Revolution und linker Revisionsbedarf: Was heisst Sozialismus heute?" in Die
Nachholende Revolution: Kleine Politische Schriften VII (Frankfurt: Suhrkamp, 1990), 199.
50. See my Habermas and the Dialectic of Reason, 155ff.
51. Nowhere, to my knowledge, does Habermas develop a critique of corporatism in detail.

Corporatism-"the delegation of negotiating competence to the conflicting parties and the
institutionalization of quasi-political bargaining processes" (LM, 231)-is discussed in great

detail in The Structural Transformation of the Public Sphere (Cambridge: MIT Press, 1989).
Here, Habermas notes that the transformation of strategic negotiations between private parties
into matters of public concern has not resulted in their being subject to public oversight and
debate. On the contrary, in conformity with the "refeudalization" of the welfare state, such
negotiations are treated as if they were private matters involving competing special interests and
bureaucratic governmental agencies (pp. 148ff., 197ff., 231ff.).
52. Despite Habermas's claim that the "argument about formns of ownership has lost its
doctrinal significance" ("Nachholende Revolution," 198), the argument remains central to

discussions of democracy. As Gould notes, a prima facie case for private worker ownership
(qualified by public oversight) can be made on the grounds that such ownership is needed to
safeguard worker self-management rights against arbitrary bureaucratic interference. Schweikart
argues, to the contrary, that public ownership is required to ensure even development and to
protect against the potential for exploitation inherent in private financial markets.
53. The ideathat mass democratic parties are functionally requisite for procuring the loyalty
of the modem state has its moral justification in Habermas's argument that ego development
involves an expansion of role identity beyond occupations to embrace more abstract principles
and in his futher claim that this sets in motion a certain decentration and fluidity in one's
perspectives and loyalties (CES, 95ff.).
54. Cf. Jean Cohen, "Discourse Ethics and Civil Society," Philosophy and Social Criticism,
14, no. 3-4 (1989): 315-37.
David Ingram received his Ph.D. from UC San Diego in 1980. He is currently Professor
of Philosophy at Loyola. Books include Habermas and the Dialectic Reason (Yale
University Press, 1987); Critical Theory and Philosophy (Paragon House, 1990); and,
as coeditor, Critical Theory: The Essential Readings (Paragon House, 1991).

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The Limits and Possibilities of Communicative Ethics for Democratic Theory

Author(s): David Ingram

THE LIMITS AND POSSIBILITIES

ROUSSEAU'S BELIEF THAT political rationality requires democratic

participation appears quaint by the lights of contemporary rational choice

required by a volont6 gdnerale.' Against this view it may be objected that

Arguments for extending democracy to all levels of life, including the

is oriented to the efficient pursuit of more mundane goals.2 Compounding

I argue below that self-realization can function as the primary rationale

turn to Habermas's use of communication theory in articulating the dynamics

C 1993 Sage Publications, Inc.

Ingram / COMMUNICATIVE ETHICS/DEMOCRATIC THEORY 295

of democratic procedural justice that provides a universal basis for civil,

tractarian approaches in that it ties the interpretation and validation of

specific rights to democratic consent. Here, one must be careful not to

accordance with an approximately fair procedure. So long as parties to the

imate outcomes are imperfect expressions of social choice, they cannot be

I conclude that a properly qualified discourse ethics defines the scope of

democratic participation more broadly than either Habermas or his critics

COMMUNICATION ETHICS AS MORAL PROCEDURE

tations of a modern conception of reason, the sphere of moral rationality

from the subjective standpoint of private moral conscience, is either self-

contradictory or incompatible with rational agency.8

296 POLITICAL THEORY / May 1993

happiness of those affected limits and distorts the universalization procedure,

communicative ethic in which "one must be able to test whether a norm or a

independent of any consideration of historical interests can will to be a

with consensus.10 Such an equation, however, appears inconsistent with the

only if it is conceived as the outcome of a perfectly rational dialogue under

ideal conditions, namely, conditions of perfectly transparent communication

be a sign of truth only if we further assumed that all participants possessed

complete knowledge of themselves and their world." Hence the triviality of

warranted assertibility. Assertion of nontrivial truth claims is warranted on

not be so warranted in light of today's criteria, which prohibit the commission

ranted assertibility with an infallible notion of rational justification-a move

Ingram / COMMUNICATIVE ETHICS/DEMOCRATIC THEORY 297

that reasonable claims might be ideological. Indeed, if we accept Habermas's

strong notion of ideology as any belief or practice that is shaped by power

inevitably influence the language in which we reason, all our reasonable

conditions of rational acceptance (warranted assertibility) too stringently lest

he reintroduce a consensus criterion of truth. Assertible are those claims that

now address is how can democratic discussion be structured so as to best

Habermas's response to this question is to constitute moral discussion as

he had previously indicated. First, the assessment of moral norms implicates

their own experiences as actors and judges in comparing the potential

298 POLITICAL THEORY / May 1993

Moral argumentation thus involves balancing principles and conventional

in concrete action contexts and almost invariably concern the justification of

norms in the manner sometimes asserted by Kant and Habermas.14 What

domain of law and politics.

COMMUNICATIVE ETHICS AND LEGITIMACY

Determination of the moral permissibility of an action must not be

means of coercive law.16 This social contractarian justification of law as

Ingram / COMMUNICATIVE ETHICS/DEMOCRATIC THEORY 299

obligation to obey political authority (indeed, there may well be no such

mistaken about what one really wanted. As Isaiah Berlin observed,

Rousseau's paradox of forcing persons to be free presupposes a peculiar

rational agency."8 Habermas succumbs to this paradox in some of his earlier

grounded in a counterfactual notion of generalizable interests and then

ultimately rests on the informal conditions and procedures requisite for

istrators.'9 The idea behind this model of legitimation is communitarian in

300 POLITICAL THEORY / May 1993

procedures and conditions of rational communication must serve as proxy

achieved in rational conversation, if it is to be achieved at all. By conceiving