To respond to the charge of context-insensitivity, discourse ethics distinguishes justification discourses, which only require that we consider what is equally good for all, and subsequent application discourses, in which the perspective of concrete others must be adopted. This article argues that, despite its pragmatic attractiveness, the separation of justification and application neglects the co-constitutive role that applicability plays for the meaning of normativity. Norms that do not, in a machine-like fashion, produce their cases, cannot already contain their appropriateness to the cases that nonetheless alone justify the existence of norms in th first place. The higher-order norm of appropriateness that enters normativity with th dependence on applications is one that remains implicit, and impossible to determine in advance. Thus, the justification of a norm is always incomplete for conceptual and not merely empirical reasons, as fallibilism typically has it.
In particular the third way in which applicability belongs to a norm would find further support in the recently widespread recognition that context - expanded by Davidson from Frege’s sentence to language (Donald Davidson, ‘Truth and Meaning’ in Inquiries into Truth and Interpretation, Oxford: Clarendon Press, 1984), and also put forward by structuralist accounts of language (cf. Georg W. Bertram, Jasper Liptow (eds.), Holismus in der Philosophie, Weilerswist: Velbrück, 2002) - is co-constitutive of meaning generally. For a norm, this would mean that its abstraction from contexts of application for pragmatic purposes - e.g. in order to state it in all generality and allow it to be widely followed, thus stabilizing behavioural expectations - must not lead to its hypostatization, the mistaken idea that the abstracted norm thrives prior to and independent of its applicability. (Of course such a general statement has its own meaning-generating context, e.g. other abstract norms, and thus need not already violate the context requirement on meaning. The point here is that for a norm, as opposed to meaning generally, contexts of application specifically are indispensable.) If we now further accept a semantic inferentialism that makes meaning depend not only on context in general, but on the context of supporting reasons for claims to which we attribute meaning, then the meaning of a norm would not only depend on applicability but on justification, giving the account of normativity the task of reconciling these two requirements. I mention this here because, at least in its broad strokes, this semantic holism is of course also defended by Habermas, for whom understanding meaning requires understanding the inferential relations between an utterance and supporting reasons. The result in Habermas’s case is thus even stronger: meaning and validity are so interdependent that to account for one is to account for the other. See J. Habermas (2000) On the Pragmatics of Communication, ed. Maeve Cooke. Cambridge: MIT Press.
2.
When confronted with claims such as Christoph Menke’s (Menke 2000, 2004) that attending to equality and singularity is not just an infinite task for empirical reasons, but inherently paradoxical for conceptual reasons, Habermas calls this a ‘postmodern’ critique of reason. C. Menke (2000) Spiegelungen der Gleichheit. Berlin: Akademie-Verlag. C. Menke (2004) Spiegelungen der Gleichheit. Politische Philosophie nach Adorno und Derrida, Frankfurt: Suhrkamp. J. Habermas (2003) ‘Kulturelle Gleichbehandlung - und die Grenzen des Postmodernen Liberalismus’ Deutsche Zeitschrift für Philosophie 51(3): 371. Habermas defends the universalist project precisely by distinguishing between the two discourses. As suggested, I will argue that the distinction between these two discourses is not only weak on its own grounds, but neglects the interdependent relation between equality and singularity: The idea of equal respect for all persons requires, but is also limited by, the attempt to do justice to singularity. For the debate between Menke and Habermas, permit me to refer to M. Fritsch (2006) ‘Equal Consideration of All: An Aporetic Project?’ Philosophy and Social Criticism 32(3): 299-323.
3.
Habermas ( 1996) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, tr. W. Rehg, p. 217. Cambridge: MIT Press . Cf. Alexandre Lefebvre (2006) ‘Habermas and Deleuze on Law and Adjudication’Law and Critique17: 389-414, at 403.
4.
It is not clear that it is best to speak of a ‘higher-order norm’, thus treating singularity or appropriateness as a norm in the same way as, say, the equality of which one would expect that it governs all normativity at least in the sense that like cases are to be treated alike. In a certain sense, it might be better to speak of egalitarian norms on the one hand, and, on the other, of the ‘idea of justice’ (see Derrida, Jacques (1990) ‘Force of Law: The "mystical foundation of authority"’ Cardozo Law Review 11:5-6, 919-1045). Or we may speak of the ‘sense of appropriateness’: see Klaus Günther (1988) Der Sinn für Angemessenheit. Frankfurt: Suhrkamp. Not calling this idea or sense a norm in its own right would be to emphasize that, as opposed to our usual understanding of norms, the idea or sense must remain implicit in the application of norms and cannot be given a positive, ‘calculable’ formulation, let alone be subject to the (rightfully, egalitarian) justification processes discourse ethics mandates of other norms. My main point here, however, will be that despite its implicit and nonpositive status, the idea or sense of justice is inseparable from all normativity in general, as norms are what they are only in and through their applications, which must be governed by singularity or appropriateness.
5.
Cf. J. Habermas ( 1990) Moral Consciousness and Communicative Action, tr. C. Lenhardt and S. Nicholsen Weber, pp. 195ff. Cambridge, MA: MIT Press.
6.
J. Habermas ( 1990) ‘Justice and Solidarity: On the Discussion Concerning Stage 6’, in T. E. Wren (ed.), The Moral Domain, tr. S. W. Nicholsen, pp. 224-51. Cambridge, MA : MIT Press.
7.
Habermas (n. 5), pp. 66-7. J. Habermas (1998) The Inclusion of the Other, tr. P. De Greiff, pp. 49 ff. Cambridge, MA: MIT Press. In his response to this criticism of Habermas, Rawls in essence responds by claiming that such actual processes of communication, while not situated at the level of the original position, are nonetheless demanded at a prior level (presumably that of wide reflective equilibrium), which first agrees on the procedure of the original position. John Rawls (1996) Political Liberalism (paperback edn), pp. 382 ff. New York: Columbia University Press.
8.
Michael Sandel ( 1982) Liberalism and the Limits of Justice. Cambridge, MA: Harvard University Press.
9.
Seyla Benhabib ( 1987), ‘The Generalized and the Concrete Other’ , in S. Benhabib, Drucilla Cornell (eds.), Feminism as Critique. The Politics of Gender. Cambridge, MA: Polity Press.
10.
Axel Honneth (1995) ‘The Other of Justice: Habermas and the Ethical Challenge of Postmodernism’, in Stephen K. White (ed.), The Cambridge Companion to Habermas, pp. 289-324. Cambridge: Cambridge University Press. Benhabib (n. 9); (1995) ‘The Debate over Women and Moral Theory Revisited’ in Johanna Meehan (ed.) Feminists Read Habermas. London: Routledge; Enrique Dussel (1997) ‘The Architectonic of the Ethics of Liberation: On Material Ethics and Formal Moralities’, Philosophy and Social Criticism 23(3): 1-35. Menke (2000, 2004, in n. 2).
11.
Benhabib ( 1992) Situating the Self: Gender, Community, and Postmodernism in Contemporary Ethics , p. 52. New York: Routledge.
12.
As Menke puts it: ‘A person is determined from the perspective of his or her equality with all others, whereas an individual is determined from his or her own perspective upon him- or herself’ (Menke (2000, in n. 2), p. 26. All translations from Menke and other German texts are my own. Cf. Habermas on the duality of the notion of person, Habermas 1991: 67-8). Cf. also the way Honneth (n. 10), p. 315, understands Derrida’s similar point: This conflict is irresolvable because the idea of equal treatment necessitates a restriction of the moral perspective from where the other person in his or her particularity can become the recipient of my care; for my showing him or her boundless concern and providing unlimited help would mean tending to neglect the moral duties that follow from the reciprocal recognition of human beings as equals. And this conflict is productive because the viewpoint of care continually provides a moral ideal from which the practical attempt to gradually realize equal treatment can take its orientation in a self-corrective manner, for it is only that kind of responsibility which is developed in loving concern for individual persons that brings about the moral sensorium with which the possible suffering of all other human beings can also be perceived.
13.
J. Habermas ( 1993) Justification and Application. Remarks on Discourse Ethics, tr. C. P. Cronin, pp. 4 ff. Boston: MIT Press.
14.
Ibid. p. 36.
15.
In favour of the priority of the moral over the ethical, the right over the good, Habermas would also mention that the moral principle of universalization is derived from the communicative structure of the lifeworld. In addition, modernity as the rationalization of the lifeworld tends to generate postconventional moral agents with abstract senses of self not dependent on traditions that generate ethical self-understanding based on values (as opposed to universal norms). Cf. G. Finlayson (2005) Habermas: A Very Short Introduction, pp. 99-100. Oxford: Oxford University Press. Thinkers like Menke, but also the Habermas-friendly Thomas McCarthy and Seyla Benhabib, deny that morality can operate without ethical values as the interests to be universalized in moral discourse are always already interpreted in light of values and ethical self-understandings (Menke (2004, in n. 2), pp. 262-3. Fritsch (n. 2). Benhabib (n. 10); Thomas McCarthy (1991) ‘Practical Discourse: On the Relation of Morality to Politics’, Ideals and Illusions: On Reconstruction and Deconstruction in Contemporary Critical Theory, pp. 181-99. Cambridge, MA: MIT Press. Cf. Habermas (n. 13), pp. 88ff.). Given that my argument indicates the need for ethical understanding of self and other already in moral discourses of justification, it could also be seen as challenging the hierarchical distinction between moral and ethical discourses, but in what follows, I will focus on the distinction between justification and application.
16.
I quote this reference to a ‘two-stage process’ in order to head off the objection to my argument that Habermas conceives of justification and application as merely two discursive moments, not two separate discourses. Additionally, the cited passage clarifies that application is to ‘follow’ justification as it leads to ‘singular judgments that prescribe some particular action on the basis of a valid norm’ (Habermas (n. 13), p. 36).
17.
Habermas (1991) Erläuterungen zur Diskursethik, p. 24. Frankfurt: Suhrkamp . Habermas (n. 13), pp. 13-14, 35 ff.
18.
Habermas (n. 2), 2005; cf. Fritsch (n. 2).
19.
Habermas (n. 3).
20.
Habermas (n. 5), p. 65; Habermas’s emphases.
21.
Even this understanding is ambiguous: an interest may be collectively or distributively universal, in the sense that it either indicates that parties hold a single interest in common (e.g., the avoidance of global environmental catastrophe), or that they each have their own interest (e.g., in avoiding pain), interests that happen to overlap. See Gordon Finlayson (2000) ‘What are "Universalizable Interests"?’, Journal of Political Philosophy 8(4): 456-69.
22.
Habermas (n. 7), p. 42; Habermas’s emphases.
23.
Benhabib (n. 9), p. 87.
24.
Habermas (n. 2), p. 373.
25.
J. Habermas ( 2004) ‘Transcendence from Within: Transcendence in this World’, in Eduardo Mendieta (ed.) The Frankfurt School on Religion, pp. 318-19. New York: Routledge.
26.
In citing Benhabib’s formulation of the difference between the two standpoints, I do not mean to say that she agrees with Adorno, Derrida or Christoph Menke on the ultimate incompatibility of the two standpoints. While I cannot show this here, I believe the ‘moral conversation’ (Benhabib (n. 11)) or the ‘interactive universalism’ (Benhabib (nn. 9, 10)) she opposes to Rawls’s ‘original position’ and, later, to Habermas’s two-discourse approach, merely cover over the conflict and the interdependence between the two standpoints. This is because she sees the perspective of the concrete other, for the most part at least, as a mere addition that must also be present in discourse, as e.g. in the following formulation: ‘What such discourses can generate are not only universalistically prescribable norms, but also intimations of otherness in the present that can lead to the future’ (Benhabib (n. 9), p. 93). Habermas, by contrast, recognizes that the principle of appropriateness, and with it the demand to assume the standpoint of the concrete other, is part of the meaning of moral validity. The dependence of the generalized other on the concrete other is thus not only empirical, as it is when we merely say, with Benhabib, that ‘we are children before we are adults, and that the nurture, care, and responsibility of others is essential for us to develop into morally competent, self-sufficient individuals’ (Benhabib (n. 10), p. 191). If the care relation, however indispensable for the kind of beings we are, is distilled as the taking of the perspective of the concrete other apart from its affective ties of friendship or love, it becomes more visible how indispensable it is ‘meta-theoretically’ at the heart of the ‘discursive procedure’ itself, rather than being of concern merely in addition to it: Meta-theoretically, I am committed to the position that the discursive procedure alone and not some additional moral principles of utility or human well being define the validity of general moral norms. Yet as a discourse theorist who is also a feminist, the needs and well-being of the concrete other are as much of a concern to me as the dignity and worth of the generalized other. (Ibid. p. 191)
27.
Cf. Albrecht Wellmer ( 1986) Ethik und Dialog: Elemente des moralischen Urteils bei Kant und in der Diskursethik, pp. 135 ff. Frankfurt: Suhrkamp .
28.
Habermas (n. 25), p. 318.
29.
Habermas (n. 13), p. 36; Habermas’s emphasis.
30.
Ibid.
31.
Ibid. p. 37.
32.
In this context, it is important to observe that calling the validity of justified norms prima facie, as Habermas often does to indicate the need for appropriate applications, means for him not that application discourses revise previously justified norms, in which case he would have admitted the role appropriateness plays in justification. Rather, he means that the principle of appropriateness, taking into account the perspective of concrete others, helps us to decide which prima facie valid principle finds application in cases of conflict between more than one principle. Thus, the applicability of a valid norm may be overridden by another previously validated norm that seems more appropriate in a given context. Cf. Habermas (n. 17), p. 65; Habermas (n. 13), pp. 14, 38; Habermas (n. 3), p. 217. In Habermas’s usage, prima facie validity may also refer to the possibility of exceptions to the application of valid norms. Habermas (n. 17), p. 65. However, neither exceptions nor overriding by another justified norm imply that application discourses revise previously justified norms.
33.
Here, it may be of interest that Habermas, despite denying the first and most important of these three feedback loops, acknowledges at least, even if still in a weak form, the need for allowing the second loop (cf. Habermas (n. 13), p. 37, where he speaks of prima facie valid norms remaining open to ‘further interpretation in the light of particular constellations of unforeseeable situations of applications’). He has not, however, detailed ways in which such revision of provisionally justified norms as a result of discourses of applications may take place; had he done so, it is likely that the prior interdependence of universalization and appropriateness principles in justificatory discourses themselves would have become as obvious as the inevitability of such ‘further interpretation’ changing the meaning of the norm in question, thus requiring a new consensus in discourses of justification.
34.
Günther (n. 4), p. 50, my translation; cited at Habermas (n. 13), p. 36.
35.
Habermas (n. 13), p. 36.
36.
Günther (n. 4), p. 51.
37.
Habermas (n. 13), p. 36.
38.
Ibid. p. 37.
39.
Günther (n. 4), p. 53; Habermas (n. 13), p. 37.
40.
The curious claim here that in justification discourses, justification will be provisional as it will be based on ‘situations actually used’ in the justification, points up another problem with weak (U), in the form introduced by Günther and adopted by Habermas. As Arash Abizadeh points out, weak (U) actually prevents the feedback loop between future applications and justified norms, and thus disallows the fallible learning processes on which Habermas insisted, with good reason, in the passage quoted above (Habermas (n. 13), p. 53). If the meaning of validity were limited to its justification on the basis of only anticipated consequences, then consequences unanticipated at the time of a norm’s justification, while if foreseen being able to prevent the application of the norm if another norm turns out to be more appropriate, cannot lead to revisions of the norm’s justificatory status. In this sense, weak (U) arbitrarily excludes future experiences, whether anticipated or actual, from leading to the rewriting of norms. See Arash Abizadeh’s (2004) ‘Pragmatic not Metaethical: A Critique of the Habermas/Günther ‘Justification vs. Application’ Distinction’ Paper read at Critical Theory Roundtable, Oct. 2004, Concordia University, Montréal.
41.
Habermas (n. 13), pp. 36-7; his emphases.
42.
Ibid. p. 37.
43.
Ibid. pp. 13, 37.
44.
Habermas (n. 3), p. 162. Habermas (n. 13), p. 37. This focus on the typical situation has drawn some related criticisms, as it appears to relegate a lot of the relevant discussion to allegedly merely secondary discourses of application. For a lot of meaningful discussion will revolve around what a standard situation is, whether we actually have it before us, which situations are relevantly like others, and so on. As Wellmer puts it (n. 27), p. 134, in view of attunement to particular situations, norms carry a … situative index by which they remain tied to the situations of their generation. That’s the only reason why there is a problem of the application of moral norms … in other words, in the case of moral norms, justification and application discourses do not allow themselves to be categorically separated from one another.
45.
Or as Benhabib puts it in view of understanding individuals on their own terms: While every procedure of universalizability presupposes that ‘like cases ought to be treated alike’ or that I should act in such a way I should also be willing that all others in a like situation act like me, the most difficult aspect of any such procedure is to know what constitutes a ‘like’ situation or what it would mean for another to be exactly in a situation like mine. Such a process of reasoning, to be at all viable, must involve the viewpoint of the concrete other … (Benhabib (n. 9), p. 90).
46.
Habermas (n. 3), p. 217.
47.
Klaus Günther (1989) ‘A Normative Conception of Coherence for a Discursive Theory of Legal Justification’, Ratio Juris2(2): 155-66, 159.
48.
Ibid. p. 163; emphases in original.
49.
Ibid.
50.
Cf. Lefebvre (n. 3).
51.
Günther (n. 46), p. 156.
52.
This emphasis on fallibilism here should not lead us to overlook its insufficiency stemming from the aporetic conflict - mutual but conflictual dependence of perspectives of all and of the singular other - within egalitarian universalism. If this is taken into account, it is not surprising that Habermas is baffled by Menke’s insistence that the aporetic account of the egalitarian reflection goes beyond fallibilism and its projection of regulative ideas. See Habermas (n. 2), p. 376, and Menke’s response: (2004, in n. 2), pp. 262 ff. See also Thorsten Bonacker (2001) ‘Ungewissheit und Unbedingtheit: Zu den Möglichkeitsbedingungen des Normativen’, in Stefan Müller-Doohm (ed.) Das Interesse der Vernunft: Rückblicke auf das Werk von Jürgen Habermas, pp. 107-43. Frankfurt: Suhrkamp.
53.
Habermas (n. 13), p. 56.
54.
Ibid. p. 53.
55.
Habermas (n. 17), p. 61.
56.
Habermas (n. 5).
57.
Habermas (n. 13), p. 36.
58.
Ibid. p. 37, citing Günther (n. 4), p. 55.
59.
Habermas (n. 6).
60.
Menke (2000, in n. 2), p. 83; cf. Jacques Derrida (1990) ‘Force of Law: The "Mystical Foundation of Authority"’, Cardozo Law Review 11(5-6): 919-1045, 949. Derrida (1999) Adieu: To Emmanual Levinas, tr. P. A. Brault and M. Naas, p. 33. Stanford, CA: Stanford University Press. Derrida (2005) Rogues: Two Essays on Reason, tr. P. A. Brault and M. Naas, pp. 48 ff. Stanford, CA: Stanford University Press. Honneth (n. 10), p. 315. Iris Marion Young (1997) ‘Asymmetrical Reciprocity’, Constellations 3(3): 340-63.
61.
Menke (2000, in n. 2), p. 85; cf. Derrida (1990, in n. 59), pp. 965 ff.; Geoffrey Bennington (2000) Interrupting Derrida, pp. 192 ff. London: Routledge.
