Between Facts and Norms - Contributions to a ... - Blogs Unpad

109 ---A Reconstructive Approach to Law Itially justified; I assume that the principle itself reflects those symmetricalrelations of recognition built into communicatively structuredforms of life in general. To introduce such a discourse 'principle already presupposes that practical questions can be·judged impartially and decided rationally. This is not a trivialsupposition; its justification is incumbent on a theory of argumentation, which I will sketch provisionally in the next chapter. Thisinvestigation leads one to distinguish various types of discourse(and their corresponding sorts of reasons) according to the logicof the question at issue; it also leads to a distinction betweendiscourse and procedurally regulated bargaining. Specifically, onemust show for each type which rules would allow pragmatic, ethical,and moral questions to be answered.37 We might say that thesevarious rules of argumentation are so many ways of operationalizingthe discourse principle. For the justification of moral norms, thediscourse principle takes the form of a universalization principle.To this extent, the moral principle functions as a rule of argumentation.Starting with the general presuppositions of argumentationas the reflective form of communicative action, one can attempt toelucidate this principle in a formal-pragmatic fashion. 38 I cannot gointo this here. For the application of moral norms to particularcases, the universalization principle is replaced by a principle ofappropriateness. We will deal with this later in regard to legaldiscourses of application.39 The two principles express differentaspects of the same moral principle, which requires that theinterests of each person be given equal consideration. In thepresent context, however, I am primarily concerned with the waysin which one can distinguish the principle of democracy from thatof morality. ,Caution is necessary here. At this juncture, one must not suc-cumb to the ingrained prejudice suggesting that morality pertainsonly to social relationships for which one is personally responsible, ,whereas law and political justice extend to institutionally mediated 1spheres of interaction.40 Discourse theory conceives of morality asan authority that crosses the boundaries between private andpublic spheres; these boundaries vary throughout history anyhow, (lt depending on social structure. If we construe the universalist claimof the moral principle intersubjectively, then we must relocateideal role taking, which, according to Kant, each individual under-