Mineur - Moral Foundation of Law and Liberal Democracies

The Moral Foundation of Law andthe Ethos of Liberal Democraciesraju_507 133..148

DIDIER MINEUR*

Abstract. This paper deals with the connection between law and morality. Such aconnection is relevant for political theory, since demonstrating that law necessarilyimplies a claim to justice would require fundamental rights to be considered thehorizon of any legal system, instead of being considered as dependent on theaxiological context of liberal democracies. The paper approaches the controversystarting from an overview of the work of the German philosopher Robert Alexy, inparticular his attempt to establish an analytical link between law and morality, andto this end considers law as a speech act with a claim to correctness. It thenexamines the critique put forward by Joseph Raz, that points out the lack ofobjectivity of this claim to correctness. In order to establish a moral foundation forlaw, the paper argues that it is necessary to take account of Karl-Otto Apel’sattempt to establish the transcendental foundation of language, as well as ofHabermas’ critique of that attempt. In conclusion, it is argued that the debate abouta possible link between law and morality sheds new light on contemporary debateson liberal justification in political theory.

The political philosopher Claude Lefort (1986) claims that democracysubstitutes the notion of a regime ruled by law and a legitimate power,with the notion of a regime based on the debate on legitimacy andillegitimacy, a debate that has neither a warrant nor an end. Fundamentalrights cannot escape such a debate, as they cannot be deduced, in democ-racy, from a transcendent source that would render them intangible.Contemporary versions of natural law, in most cases, avoid resorting tosubstantial concepts of law or rights, and attempt to establish the existenceof a link between law and morality in a purely procedural way. Thisamounts to demonstrating an analytical link between law and morality.The natural law point of view raises a problem, for it refers to a pre-political state, and indeed to “natural” rights. Since natural law—from

* I would like to thank M. Frédéric Lebihan for his invaluable help in polishing my English.

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Ratio Juris. Vol. 25 No. 2 June 2012 (133–48)

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which natural rights derive—is conceived as being handed down by God,fundamental rights are founded heteronomously. Conversely, when oneconceives of natural law without reference to God, natural rights are thosethat existed in the state of nature. As a result, their foundation is hypo-thetical, since the concepts of the state of nature and human nature areproblematic (even if natural rights are general, undifferentiated and equal,while classical natural law considers the proper destiny of each oneaccording to his or her “nature”—as in the case of slaves and women inAristotle). This is why a foundation for human rights appropriate fordemocracy, that is, a regime that upholds human autonomy, means movingbeyond the conceptual framework of natural law and the state of nature,and restricting oneself to the logical presuppositions associated with theenactment of a norm.

This theme in the philosophy of law is crucial to political theory, sinceit tackles the issue of axiological pluralism and the universal validity ofethical-legal norms such as human rights. Indeed, if it were possible toestablish a link between normative production and universal morality (atleast as one could expect it to be), then ethical-legal norms would be thenecessary horizon of any legal system. On the other hand, if such anattempt is doomed to failure, then such norms are destined to depend onparticular conceptions of justice, that is, on specific historical and culturalcontexts.

The issue of the relations between principles of justice and the pluralityof the conceptions of the good lies at the heart of John Rawls’ seminalwork, though this work will not be directly examined here. Rather, I shallinvestigate the theoretical issues by means of a critical examination of thecontroversy between Karl-Otto Apel and Jürgen Habermas. Their exchangeexplicitly raises the question of the universality of both language andreason, as well as its normative consequences. My purpose is to bringtogether, and cut across, distinct disciplinary fields. However, bothdomains address the same problem, since nowadays normative politicaltheory examines issues that used to be assessed by natural law theory. Ishall therefore present this controversy by means of an examination ofGerman philosopher Robert Alexy, who attempts to revive natural lawtheory in his book The Argument of Injustice. Alexy aims to establish ananalytical link between law and morality, and to this end he considers thelegal norm as an illocutionary act. This methodological prism on theconnexion between law and morality highlights the importance of thinkingabout language when trying to establish universal fundamental normswithout reference to the classical categories of natural law—a project thatKarl-Otto Apel also seeks to accomplish.

I shall first present Alexy’s attempt (I), then Raz’ critique of it (II).Following Raz, I argue that a legal norm, conceived of as an illocutionary act,can merely claim legitimacy. As such, it cannot also claim moral correctness.

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Still, it may be possible to rescue Alexy’s argument at the level of the basicnorm: The efficiency of the legal order (on the basis of which the Kelsenianlegal scholar presupposes such a basic norm) is inconceivable, it seems,without minimal moral approval on the part of the citizens. However, sucha minimal link between law and morality makes no claim to the correctnessof that morality. To this extent, the hypothesis of an analytical link betweenlaw (as an illocutionary act) and morality requires an assessment of theproblem of a transcendental foundation of both language and reason, in themanner of Apel. Such a foundation, were it possible, would necessarilyinclude a moral dimension that would constitute a necessary horizon for anynormative production. I shall then assess Habermas’ critique of that attempt.As a result, one cannot but abandon this project, and confine oneself to thepurpose of securing a synthetic link between law and morality, that is, aconnection depending on a peculiar history and a specific experiencecharacterised by axiological pluralism (III). In Rawls’ terms, it is necessaryto acknowledge that the fundamental principles of justice depend on moralintuitions that are proper to western democracies. As regards the relation-ship between principles of justice and value pluralism, one cannot but noticestriking analogies between, on the one hand, Apel and the early Rawls, andon the other hand, between Habermas and the later Rawls. Thus, theexamination of a connection between law and morality in legal philosophymay enable us to shed new light on one of the most debated controversiesin contemporary political theory.

I. Linking Law and Morality: The Burdens of Liberal Legitimacy

1. The Threefold Argument of Robert Alexy

Alexy exposes the positivistic thesis as follows, whereas Raz contests it, butI shall return to him later: The concept of law is so defined that it does notinclude a moral element. Against such a view, Alexy puts forward threearguments, the first of which lays the foundation for the other two, andattempts to establish a necessary link between morality and law. In 1946,the German positivist legal scholar, Gustav Radbruch, wrote a famouspaper which marked his conversion to the emerging natural law paradigm,affirming that unjust law is simply not law at all (Radbruch 1946). Thisthesis made sense in the context of the debate taking place in Germany atthe time, over the responsibility of magistrates and civil servants in NaziGermany. The aim was to ascertain whether or not they should haveconsidered themselves released from compliance with the laws on thestatute book, in particular racial laws. In the search for a conceptualfoundation for Radbruch’s argument, Alexy first distinguishes between theexternal observer’s perspective on the system of laws, and the internalperspective of the participants. The participant perspective “is adopted by

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one who, within a legal system, participates in disputation about what iscommanded, forbidden, and permitted in this legal system and to whatend this legal system confers power” (Alexy 2001, 25). The observer’sperspective is adopted by “one who asks, not what the correct decision isin a legal system, but rather, how decisions are actually made in a certainlegal system.” The observer’s perspective allows Alexy to put forward hismain argument. From this perspective, discrete norms cannot be denied thestatus of valid laws simply because they are unjust, since the observer doesnot take any part in the process of enacting them as valid norms, that is,effective norms. Conversely, the validity of any legal system as a whole canbe contested by the observer on moral grounds: While the validity of asingle law depends on its relation to the entire system, which only aparticipant such as a judge can appreciate, the concept of a legal systemnecessarily entails a claim to its own validity, which includes a moraldimension: what Alexy calls the “claim to correctness.” He attempts todemonstrate it by means of a thought experiment in which the first articleof the Constitution is the following: “X is a sovereign, federal and unjustrepublic.” According to Alexy, such a sentence contains a perfomativecontradiction, because “the claim to correctness—in this case, above all, aclaim to justice—is necessarily attached to the act of framing a constitu-tion” (Alexy 2001, 37). Any legal norm, because by definition it makes aclaim to validity, assumes that it is correct: This is a necessary element ofthe concept of a legal norm. This argument of the “claim to correctness,”which becomes a claim to justice when applied to the entire legal system,is contestable as such, and I shall come back to this point. However, it hasonly few practical effects, as Alexy himself says: Indeed, all legal systemsclaim to be just. It is thus unlikely that, even from an external perspective,one can ascertain that the Constitution is not valid.

The “claim to correctness” argument is essential to Alexy’s reassessmentof Radbruch’s argument of injustice, which aims at making it possible todisqualify unjust norms, this time from the participant’s perspective, andfrom that perspective only. The argument of injustice must first be given anarrower definition than that of Radbruch: Asserting that any intolerablyunjust law forfeits its legal character implies that any valid law is moral aswell, which is dangerous; it gives way to the risk of “acritical legitimationof law.” Thus, one ought to say that only an extremely unjust law forfeitsits legal character. Alexy does not clearly develop the analytical bound hepostulates between the concept of law and its morality, but one may followRaz’ reconstruction of the argument in his critical reading of Alexy. Thedemonstration would be the following: “(1) The law essentially makes aclaim to its moral correctness. (2) From the participant’s point of view, thisclaim to moral correctness forms part of the reasons to follow the law, andin the case of judges, to apply it. (3) Since a grossly unjust law cannot bemorally correct (ex hypothesis), judges ought to interpret the law so that

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grossly unjust law is rendered invalid. (4) Therefore, from the internalpoint of view, from the point of view of the judges, unjust law is not law”(Raz 2007, 13–4).

It may be noted that this argument is not fully satisfactory: If the validityof the law is only formally appreciated (either directly, on behalf of the claimto correctness of every law which Alexy deduces analytically from theconcept of law, or on behalf of the claim to correctness of fundamentalnorms, i.e., the constitution), it is not clear why an unjust law could beconsidered as not being a law, since the concept of law only implies the claimto correctness, and accordingly the charge of performative contradiction canonly be addressed to a law that would claim its own unjust character. Nordoes one clearly understand why external observers would be unable toappreciate such injustice, whether law’s validity is appreciated directly(claim to correctness) or indirectly (claim to correctness of fundamentalnorms): In both cases one just has to notice that law does not claim explicitlyits unjust character—indeed this is never the case. If, by contrast, law’svalidity is judged on the basis of its content, i.e., on behalf of its conformityto the claim of correctness, one understands that it may be considered unjust,but then the distinction between the observer and the participant is nolonger relevant, given that claims to validity only refer to the content of lawwithout requiring any reference to any other norm. The second interpreta-tion seems to be the right one: Validity of law has to be examined with regardto its content, rather than its claim to correctness analytically deduced fromthe concept of law. However, it seems to me that the distinction betweenobserver and participant should be abandoned, because it confuses theargumentation. In any case the task still remains of examining the value ofthe argument according to which, because of the claim to correctness impliedby every law, an unjust law can be considered as not being a law at all onthe basis of an internal contradiction. I shall try to show that such arequirement cannot be deduced by the sole speech act of a legal norm’senactment, unless one grounds it in a theory that founds language andreason morally. In this connection I shall examine Karl Otto Apel’s attempt.

On that basis, Alexy raises the issue of the injustice of a legal system asa whole. The question is then whether the failure of correctness, as regardsthe fundamental norms of a legal system, entails the injustice of the entiresystem, disqualifying all the norms of the system. Two arguments come tomind in this connection: first, the “extension thesis,” according to whichthe injustice of fundamental norms entails the injustice of all norms thatshare the same injustice. Alexy asserts that this argument is not convincing,given that it is not possible to establish with sufficient objectivity to whatextent a norm that seems to be unjust shares the injustice of fundamentalnorms. As a result, only norms that are “extremely unjust,” and theextreme injustice of which is easily acknowledgeable, forfeit their legalcharacter. According to a variant of this argument, grossly unjust norms



entail the injustice of the entire legal system because of the hierarchy ofnorms. This argument is not valid either, since only the content of normsis relevant to judging their moral correctness. This shows that the judge-ment of the injustice of a norm is founded on substantial grounds. Alexythus asserts that the entire legal system forfeits its legal character if andonly if it contains so many grossly unjust laws that there do not remainenough to warrant its social efficacy.

Alexy’s third argument, in addition to the claim to correctness and theargument of injustice, is “the argument of principles.” Alexy borrows fromHerbert Hart the idea of the “open texture” of a legal system (cf. Hart 1958;Fuller 1958), for several reasons—such as the absence of any norm, or theconflict between different norms. “From the standpoint of positivistictheory,” Alexy writes, the judge is then “empowered by the positive law tocreate new laws essentially as a legislator does, on the basis of extra-legalstandards. [. . .] By contrast, the argument from principles says that thejudge is legally bound even in the open area of the positive (issued andefficacious) law, indeed, legally bound in a way that establishes a necessaryconnection between law and morality” (Alexy 2001, 69). Because of theclaim to correctness that is part of the law, the judge cannot but refer to amoral principle in order to settle his verdict in a doubtful case. Theproblem arises, then, of the value of the principles to which the judgerefers; at this point the argument of principles comes together with theclaim to correctness. When the judge appeals to moral principles—in orderto satisfy the claim to correctness that makes his decision a legal norm—heis claiming their own moral correctness: That claim must, like every claim,be justifiable. The justifiability of these principles has to be examined withregard to the regulative ideal of “correct morality.”

At this stage, Alexy is able to tackle the issue of the general validity of law,of which moral justifiability is only an element, and to confront the problemof the foundation of a legal system (the basic norm problem) on grounds ofa reformulated concept of law, one that includes moral elements.

2. The Basic Norm and the Claim to Moral Legitimacy

There are three concepts of validity as regards law: sociological validity, thecriterion of which is efficacy; ethical validity, the criterion of which isjustifiability; and legal validity, the criterion of which, according to posi-tivist theorists like Kelsen or Hart, is merely formal, while Alexy intendsto show that it includes both sociological and ethical criteria.

Social Validity

A legal system is socially valid so long as it is efficacious, and an individualnorm is valid so long as it is minimally efficacious (some norms may beobsolete).

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Moral Validity

A system is morally valid if and only if it can be morally justified. Whilea legal system collapses when it is not socially efficacious, it is able tosurvive when the constitution and the fundamental norms are not effec-tively morally justifiable, but it also collapses when it encompasses somany unjust laws as to undermine its social efficacy. Individual normsforfeit their legal character when they are extremely unjust.

Legal Validity

Legal positivism defines legal validity so as to exclude any reference to the(moral) content of law; that is, a norm is said to be valid if it is enacted inthe duly prescribed way by a duly authorized body, and does not violateany higher order norm. According to Alexy, that concept of legal validityraises two problems—an external one, and an internal one. The internalproblem concerns law’s validity as defined by reference to another validnorm, which necessarily leads to the problem of the basic norm. Theexternal problem concerns the question of how to relate the legal conceptof validity to the two others.

As regards the internal problem, Alexy examines Kelsen, Hart and Kanton the issue of the basic norm. I shall confine my argument to his readingof Kelsen, on which Alexy chooses to build his own threefold argument ofcorrectness, justice and principles. Kelsen’s basic norm asserts that oneshould behave in accordance with the constitution. However, that normpertains to the “Sollen,” the “ought,” and accordingly cannot be directlydeduced from the proposition “the constitution has been established and issocially efficacious.” It is necessary to formulate the basic norm as asyllogism: 1) If a constitution has been promulgated and is sociallyefficacious, then it is legally prescribed that one behaves in accordance withthis constitution; 2) Constitution C has in fact been promulgated and issocially efficacious; 3) There is a legal requirement to behave in accordancewith constitution C (Alexy 2001, 98).

Alexy objects that defining the basic norm as an obligation related to thesystem’s social efficacy is a necessary, but not sufficient, element of thisdefinition. Indeed, in accordance with the argument of principles, law mustinclude all the necessary elements to satisfy the claim to correctness indoubtful cases, and in accordance with the argument of injustice, a lawcannot be valid if it breaches the claim to correctness by an extremeinjustice. Kelsen’s basic norm does indeed solve the internal problemraised by an exclusively legal concept of validity: Its reformulation, whichincludes moral elements, satisfies the further requirement, that of the linkbetween the legal concept of validity and the two other concepts ofvalidity.



Accordingly, Alexy proposes a new definition of law. Law is a system ofnorms that 1) makes a claim to correctness; 2) is constituted by the wholeset of norms that contribute to a constitutional order that is sociallyefficacious as a whole, and are not themselves unjust in the extreme; andfinally 3) encompasses the principles and others normative arguments onwhich the process of law application is and/or must be based in order tosatisfy the claim to correctness (Alexy 2001, 127).

II. What Does the Norm Claim: Correctness or Legitimacy?The Challenge of Objective Justifiability

The core of Alexy’s argument consists of two assertions, that must pass thecritical test. On the one hand, the concept of a claim to correctness aspresupposed by the norm conceived of as a speech act; on the other hand,the notion that a law, the content of which is considered as extremelyunjust, does not meet the claim to correctness, and is therefore not a lawat all. My purpose in the following is to show that asserting the moralitythat law would necessarily imply requires demonstrating that languageitself presupposes moral principles, which is no easy task.

I shall hereafter follow Joseph Raz’s critical reading of Alexy. Razcontests Alexy’s definition of legal positivism, but the definitional contestis not in itself relevant here. Raz asserts that “determining what the law isdoes not necessarily, or conceptually, depend on moral or other evaluativeconsiderations about what the law ought to be in the relevant circum-stances” (Raz 2007, 5). He also rejects the distinction between observersand participants that I set aside in my reading of Alexy, a distinction thatI think confuses the argument: “Given that we are given no choice but toassume that the difference between the observer’s and the participant’sperspective is the subject matter of the inquiry, there is no reason to expectthem not to be able to share the same concepts. One or the other of themmay find that some concepts crop up more often in his inquiries, but thereis no principled reason why they should diverge in any way in theirconcepts. It is therefore surprising to find Alexy claiming that the state-ment: ‘A has not been deprived of citizenship according to German law,although all German courts and officials treat A as denaturalised’ as astatement of an observer contains a contradiction if made from one pointof view it does so if made from any point of view” (Raz 2007, 8).

The core of Raz’s critique lies in his reading of the correctness thesis.According to him, this thesis applies to all intentional actions: “[E]veryintentional action ‘claims,’ that is commits its agent to, its own correctness.As it is evident the thesis merely means that (a) actions of different kindsare subject to evaluation as actions of those kinds (though perhaps also toother evaluations as well), and (b) it is part of the concept of intentional

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action that one who performs an intentional action knows that his actionis subject to assessment by the standard applying to actions of that kind(the kind under which it is intentional)” (Raz 2007, 9). From the fact thatevery action presents itself as appropriate to the pursued goal, one cannotinfer that the goal must be justice. From that property of all intentionalactions, one cannot infer that law necessarily claims moral correctness.1

Raz’s objection to the argument of injustice is all the more important asit can help us reformulate the basic norm as proposed by Alexy. Raz pointsout that, by its very nature, law claims legitimate authority, for it intendsto prevail over any other norms, whatever its substantive purposes may be.But this, Raz suggests, does not entail that law claims moral correctness.Accordingly, participants in the legal system follow the law, but merelybecause they think it is legitimate: “It is generally true that participants, ifthis means officials such as judges, administrators, police and the like,generally follow the law not because it claims to be morally legitimate, butbecause they think that it is morally legitimate. The claim by itself isneither here nor there. To examine the rest of the argument we need toassume that while unjust laws may be morally binding, grossly unjust lawscannot be, that is we need to assume that grossly unjust laws are not onlymorally deficient, they also exceed any legitimate (i.e., morally binding)authority which anyone may have. Will that assumption vindicate theconclusion that officials (i.e., Alexy’s participants) are always morallyjustified in refusing to apply such laws?” Raz answers: “The question iswhether this can lead to the conclusion that no grossly unjust law is law,or that courts have inherent legal power to set such laws aside? Clearly, theassumptions do not in themselves entail such a conclusion”(Raz 2007,14–5). It would therefore be necessary to demonstrate that a law cannot beextremely unjust, a point that the argument of the claim to correctness failsto achieve, because it is a property of any intentional action as such,whatever the substantial content of the action or, for that matter, of the law.

The claim to correctness, as Raz shows, is not sufficient either todemonstrate that a legal system presupposes its own morality, or todisqualify a law on the ground that its content contradicts that claim. It isthus required to explore another path, which would help us demonstratethat law does presuppose its own morality. It seems interesting to start, asAlexy does, from the law as an illocutionary act; but it is also necessary,following Raz, to base the argument of correctness on new grounds: Likeany compulsory norm, law encompasses a claim to legitimate authority.That claim is nothing but the assertion of legal validity, that is implicit inthe discourse of the law. Nevertheless, it may be possible to assume an

1 Otto Pfersmann uses a similar argument, discussing the example given by Alexy, that of aconstitution which would claim its injustice; there is no contradiction, he says, if the state’sruler had unjust intentions and wished to make it known (Pfersmann 2002, 31).



analytical link between a claim to legitimacy and a claim to morality, buteven if such a link is to be found, it would still be required to examine onwhat conditions that morality can be said to be correct. That task will leadus beyond the question of a specific bound between law and morality, andwe shall turn to the question of a general link between morality and reasonitself.

I shall first go back to Kelsen’s basic norm, in order to secure a specificlink between law and morality. People acknowledge the legitimacy of lawsbecause they are enacted in a duly prescribed way; the constitution itselfcan only ground its own legitimacy on a presupposed norm, the basicnorm, which only lays down a requirement to abide by the norms that areenacted by the body that institutes the first constitution. As a result, law isultimately founded on a proposition of the following kind: “It is requiredto respect the law.” But if the concept of law is not conceivable withoutimplying its own validity, then only effective regard for norms prevents thelaw from being nothing more than tautological speculation. Indeed, Kelsenasserts that the basic norm is presupposed by the legal scholar in theinterpretation of effective laws. As Olivier Jouanjan writes, “one has toacknowledge that effectiveness and efficacy of the legal order precedes andeven conditions the validity of the norms it is made of. The supposed basicnorm which grounds the validity of the legal order already presupposesthe effectiveness and efficacy of that order” (Jouanjan 2000, 74). Now, if theconstitution is effectively respected, it is because people confer some valueon it. As a result, the validity of the legal system depends above all on theappreciation of its moral value by its subjects. There surely is, as Jouanjanargues, a violation of the Sein/Sollen principle (Jouanjan 2000). Still, onecould rewrite in the following terms the syllogism that according to Alexystands behind Kelsen’s basic norm: 1) If a constitution has in fact beenpromulgated, and if its social efficacy depends on the appreciation of itsmoral value by its subjects, then it is legally prescribed that one shouldbehave in accordance with this constitution; 2) Constitution C has in factbeen promulgated and is socially efficacious; it is then, ex hypothesis,perceived as morally valuable; 3) It is legally prescribed that one behave inaccordance with constitution C. The problem of the basic norm thusprovides evidence in support of the view that there is a specific linkbetween law and morality, because at this level, the legal order encom-passes the ethical-political project that underlies it.

The question now becomes that of finding out whether the claim tomoral value can possibly be given an objective foundation. Put anotherway, since the basic norm qua speech act claims moral legitimacy, thequestion remains whether or not this claim is to a correct morality. Thisamounts to the problem of rational justifiability, which Alexy takes as thecriterion of extreme injustice. Raz rejects such a concept of justifiability;most importantly, he rejects the principle according to which the more

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extreme an injustice is, the more certain our knowledge of it. Raz givessimple examples: “Many will admit that slavery as practised by Muslimsand Christians in the sixteenth and seventeenth centuries was among thegreatest injustices of those times, yet it was not among the most obviousinjustices to the people who engaged in it. The repression of women or ofgays in many cultures provides similar examples. I think we are lucky thatsuch arguments do not bear on the question of the nature of law” (Raz2007, 15). Indeed, showing that a claim to morality necessarily involves theprinciples of a correct morality (like those of the German constitution inAlexy’s case) requires much more than is offered by such a contingentnotion as “justifiability.” It requires grounding a transcendental foundationof language and reason, in both the practical and theoretical senses. If suchan attempt were possible, one could then show that every speech actnecessarily encompasses determined principles.

As a result, the problem of linking law and morality would have to bereplaced by the broader question of a general link between morality andlanguage. To this extent the morality presupposed by reason itself wouldnecessarily be a correct one, any alternative moral system being contraryto reason.

III. Is a Moral Foundation of Right Possible?Universalism and Liberal Justification

1. Transcendental Arguments vs the Plurality of Forms of Life

This is precisely what K.-O. Apel tries to achieve (Apel 1973). His attemptis noticeable in terms of philosophy of law, because it remains within theframe of a purely procedural method. Indeed, Apel insists that everyargumentation encompasses presuppositions that can neither be denied(unless falling into a performative contradiction) nor demonstrated (unlessmaking undue postulation). These presuppositions are constitutive ofreason itself: among them, the principles of formal logic, the principles ofa universal pragmatic, the presuppositions of existence, and the presup-position of an ideal speech community. This foundation of reason encom-passes a practical dimension, in so far as the presupposition of an idealspeech community implies “that all human beings capable of linguisticcommunication must be recognized as persons, given that they are, in alltheir actions and expressions, virtual interlocutors, and that the unlimitedjustification of thought cannot ignore any interlocutor, nor can it ignore anyof his virtual contribution to discussion” (Apel 1973, 400). Any significantcommunication necessarily presupposes recognition of all human beingscapable of communication as valid interlocutors, and thus as alter ego andsubjects of rights. Any argumentation not abiding by this duty would fallinto performative contradiction, that is, into a contradiction with the very



presuppositions of its own discourse. Apel calls that presupposition “prin-ciple U” (Universalization).

As regards law, one could suggest that any legal order, as a set ofnormative propositions, necessarily presupposes equal and reciprocal rec-ognition of all its subjects, so that human rights form the horizon of anylegal system. If that Apelian endeavour could be proved, one couldconclude that the fundamental norm supposed by the jurist (which pre-scribes respect for the constitution, and presupposes effective respect forthe legal system, and accordingly its moral value as perceived by itssubjects) cannot be valid unless the constitution effectively satisfies therequirements of every normative proposition. The specific link betweenlaw and morality would therefore be the following: The fundamental legalnorm would depend on a moral norm as presupposed by language andreason.

Jürgen Habermas dissents from that endeavour of a transcendentalfoundation of reason. According to him, the fact that communicationpresupposes intersubjectivity does not mean that such a presuppositionrefers to the nature of reason, nor does it mean that this presuppositioncannot be falsifiable. It only stands as evidence of the world of experience.Secondly, he distinguishes between the principle of discussion itself, whichhe calls “principle D,” and requires that “valid norms are those on whichall concerned persons, or persons who are liable to be concerned, mayagree” (Habermas 1992, 123), and “principle U,” which is a specification ofprinciple D, and regards moral questions requiring further, by their verynature, to be set in the frame of a universal horizon, which is notnecessarily the case with regard to legal norms. Thus, the dissent with Apelis twofold (see Apel 1989). On the one hand, intersubjectivity refers merelyto the fact of socialization, rather than to the nature of reason; this isenough, according to Habermas, to refute opponents of discourse ethics.On the other hand, it is not the case that every argument needs to pass thevalidation test of the universality of speaking subjects. Legal norms can bevalidated by mere pragmatic reasons in accordance with determined goals,and by ethical reasons, that is, reasons referring to the ethos and theconception of the good life proper to the culture where one is situated.

Returning to our question, this entails that a legal system, as a set ofpractical norms, implies recognition of anyone as a subject of rights if andonly if it explicitly refers to principle U, that is, to ethical-legal norms suchas human rights. Such norms, because they are conceived of as applyingto everyone, everywhere, must indeed pass the test of the universalhorizon. Conversely, a legal system as such does not imply recognition ofeveryone as equal subjects of rights, as this would require a connexionbetween law and morality of the kind in compliance with “principle U.”In particular, one could infer from the position of Habermas that a legalsystem does not imply equal recognition of all its subjects, since principle

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D only requires mere agreement of those concerned (and not of anypossible interlocutor). As regards equal rights for men and women, forexample, such an agreement is still possible in cultural contexts wheredomination of some part of the population is internalised by those whoare themselves dominated.

2. Value Pluralism and Liberal Justification

In addition, Habermas considers that reference to principle U is madepractically necessary in contexts of value-pluralism, which makes it impos-sible to satisfy oneself with mere “ethical” reasons—that is, culturallysituated reasons. It would be a betrayal of principle D, in itself morallyneutral, but which requires the agreement of all those concerned, in thiscase, humanity as a whole. Clearly, it is above all within western legalsystems that one is likely to find such norms at the top of the legalhierarchy. Accordingly, it is above all these systems that set law within thehorizon of morality, but they do so because value pluralism forces moralconsiderations into positive law. Principle U, i.e., the horizon of univer-sality, is only invoked because of a world-of-experience fact, as a specifi-cation of principle D appropriate to certain circumstances. As a result, thepractical objectivity of the moral principles invoked by the basic norm isonly secured, in the end, by a specific context of argumentation, charac-terized by axiological pluralism (Habermas 1998). To that extent, one canconclude that there is only a mere synthetic connexion between law andmorality, instead of an analytic link, of the kind both Alexy and Apel tryto establish.

The evolution of Rawls’ thought testifies, in a significant way, a similarlimitation of the initial claim to universality, which was that of theprinciples of justice. Rawls’ concept of “public reason” describes thatpeculiar sense of justice, the “principles of fair cooperation” possessed bypeople in a just society as defined by the two famous principles chosenunder the “veil of ignorance” (Rawls 1971).2 Such principles providepeople with a criterion of what is fair or unfair treatment of the individualin society. The notion of public reason escapes the contingency andrelativity of the simple “moral sense” (which Rawls takes into accountelsewhere, by means of what he calls a “reflective equilibrium”). Indeed,the principles grounding the sense of justice do not refer to any particular

2 “First Principle [Liberty Principle]: Each person is to have an equal right to the mostextensive total system of equal basic liberties compatible with a similar system of liberty forall.Second Principle: Social and economic inequalities are to be arranged so that they are both:(a) [The Difference Principle] to the greatest benefit of the least disadvantaged, consistent withthe just savings principle, and (b) [Fair Equality of Opportunity] attached to offices andpositions open to all under conditions of fair equality of opportunity” (Rawls 1971, 302).



history or culture, since they are necessarily deduced from the solerationality of the people situated under the veil of ignorance, who areaccordingly uncertain of both the position they hold within society, and thenatural skills they are endowed with.

However, the concept of public reason can provide strong criteria ofjustice if and only if the universal character of its constitutive principles isstrongly secure itself. Rawls himself was famously led, in his PoliticalLiberalism, to limit the scope of his principles of justice (Rawls 1996), andto concede that they do not proceed from the sole reason, but also frommoral intuitions which are proper to liberal democracies. Accordingly, ifthe objectivity of publicly recognized moral claims is secured by rationalprinciples stemming from particular moral intuitions, one presupposes thatthe problem one intends to solve is already settled. If moral rights are notvalid claims but within the frame of a society ruled by principles of justice,which in turn depend on moral intuitions stemming from a specific historyand culture, then they cannot be valid except in contexts where they arealready partially implemented by positive law.

Similarly, according to Habermas, one is led to conclude that instead ofsecuring a necessary connexion, at the core of the legal order, between lawand morality (i.e., between the claim to legitimacy of law and objectivemoral principles), one can only show that these principles cannot be valid,but where they are presupposed by the context of norm validation. Theclaim to universality cannot take place except where the argumentativecontext specifies it explicitly, and this context is specifically a westerncontext.

However, principle D (the only principle presupposed by languageaccording to Habermas), while less demanding than principle U, stillexcludes, it seems, extremely unjust norms (in Alexy’s terms), such as thosedenying the right to live to some parts of the population. Apel, for his part,argues that principle D is already a moral one. But still, and mostimportantly, Habermas denies that it refers to reason: Language onlypresupposes it as a given fact of the world of experience. Apel rejects thispoint, arguing that resorting to a world-of-experience ethos amounts tocommitting a “naturalistic fallacy,” that is, deducing a normative propo-sition from a given fact. In other words, it amounts to mistaking the“Sollen” order for the “Sein” order, the “ought” for the “is,” subverting theaim of critical theory, that is to judge the world of experience, and todiscriminate between positive norms and morally valid norms. It wouldstill be necessary, if one wishes to refute the objections of Habermas, toshow that intersubjectivity refers to the nature of reason, and that itencompasses in itself a dimension of practical objectivity.

To conclude, it is sufficient to suggest that, once we take on boardHabermas’ objections to Apel’s project, we can no longer base law onuniversal morality. But it remains possible to prevent the danger of

146 Didier Mineur


relativism. One can argue, in the wake of the neo-Popperian Hans Albert(Albert 1980 and 1982), that intersubjective recognition, from which fun-damental rights are deduced, still stems from an original decision in favourof open reason. This is the case even if Habermas disputes the idea thatreason is chosen as a result of the rejection of a transcendental foundationof reason, a view that he shares with Albert. This choice may be promotedby the moral experience of axiological pluralism, and it takes place whenlegal norms require validation to pass the test of universality. Now it seemsthat if one accepts that critical (or open) reason is one of the two figuresof reason (the other being traditional reason), a legal order defined by therecognition of equal rights is not relative to a given culture, but resultsfrom the choice in favour of the first one. It may be vain to assume that anylegal order necessarily presupposes equal and reciprocal recognition of itssubjects—it cannot be deduced from rationality itself—but it is probablyplausible to assert that this is the case as regards any legal order resultingfrom an original choice in favour of critical reason.

CEVIPOF—CNRSInstitut d’études politiques de Paris

98, rue de l’Université75007 Paris

FranceE-mail: [email protected]

References

Albert, Hans. 1980. Traktat über kritische Vernunft. Tübingen: Mohr. (1st ed. 1968.)Albert, Hans. 1982. Die Wissenschaft und der Fehlbarkeit der Vernunft. Tübingen:

Mohr.Alexy, Robert. 2001. The Argument of Injustice. A Reply to Legal Positivism. Trans.

Bonnie Litschewski Paulson and Stanley L. Paulson. Oxford: Oxford UniversityPress. (1st ed. in German 1992.)

Apel, Karl-Otto. 1973. Transformation der Philosophie. Frankfurt am Main: Suhrkamp.(English translation: Towards a Transformation of Philosophy, trans. Glyn Adey andDavis Frisby, London: Routledge and Kegan Paul, 1980.)

Apel, Karl-Otto. 1989. Normative Begründung der “Kritische Theorie” durchRekurs auf lebensweltliche Sittlichkeit? In Zwischenbetrachtungen im Prozesse derAufklärung. Eds. A. Honneth et al., 15–65. Frankfurt am Main: Suhrkamp.

Fuller, Lon. 1958. Positivism and Fidelity to Law—A Reply to Professor Hart.Harvard Law Review 71: 630–72.

Habermas, Jürgen. 1992. Faktizität und Geltung. Frankfurt am Main: Suhrkamp.(English translation: Between Facts and Norms, trans. William Rehg, Cambridge:MIT Press, 1998.)

Habermas, Jürgen. 1998. The Inclusion of the Other. Trans. Pablo de Greif and CiaranCronin. Cambridge: MIT Press. (1st ed. in German 1996.)

Hart, Herbert. 1958. Positivism and the Separation of Law and Morals. Harvard LawReview 71: 593–629.



Jouanjan, Olivier. 2000. Faillible droit. Revue européenne des sciences sociales, CahiersVilfredo Pareto XXXVIII–119: 65–78.

Lefort, Claude. 1986. Les droits de l’homme et l’Etat-providence. In Claude Lefort,Essais sur le politique. Paris: Seuil.

Pfersmann, Otto. 2002. Droit et justice. Revue de métaphysique et de morale 2(33):27–41.

Radbruch, Gustav. 1946. Gesetzlisches Unrecht und Übergesetzlisches Recht. Süd-deutsche Juristen-Zeitung 1: 105–8. (Reprinted in: Gustav Radbruch, Gesamtaus-gabe, Heidelberg: Arthur Kaufmann, 1990.)

Rawls, John. 1971. A Theory of Justice. Harvard: the Belknap Press of HarvardUniversity Press.

Rawls, John. 1996. Political Liberalism. New York: Columbia University Press.Raz, Joseph. 2007. The Argument from Injustice, or How Not to Reply to Legal

Positivism. In Law, Rights and Discourse. Ed. George Pavlakos, 17–36. Oxford:Hart.

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