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

459Postscriptdeem it to be equally in the interests of all that this norm or these normsshould prevail in society.1:'To be sure, this tension between facti city and validity is already builtinto moral discourse, as it is in the practice of argumentation ingeneral; in the medium of law, it is simply intensified andoperationalized.Wellmer, however, wants to reserve the idea of universal rationalacceptability for explaining the legitimacy of law and not have itextend to the validity of moral norms. He believes it is a mistake fordiscourse ethics to carry over the connection between normativevalidity and real discourse, which is present in the special case oflegal validity, to the validity of moral commands. In this context, wecannot concern ourselves with this objection itself,14 but it doesdraw our attention to a demarcation problem that the discoursetheory of law and morality in fact poses. If, unlike Wellmer, onedoes not bring in the discourse principle exclusively to explain theprinciple of democracy, but employs it more generally to explicatethe meaning of the impartial assessment of normative questions ofevery kind, then one runs the risk of blurring the boundary betweenthe postconventional justification of norms of action in generaland the justification of moral norms in particular. In my view, thediscourse principle must be situated at a level of abstraction that isstill neutral vis-a-vis the distinction between morality and law. Onthe one hand, it is supposed to have a normative content sufficientfor the impartial assessment of norms of action as such; on theother hand, it must not coincide with the moral principle, becauseit is only subsequently differentiated as the moral principle and thedemocratic principle. Therefore, it must be shown to what extentthe discourse principle does not already exhaust the content of thediscourse-ethical principle of universalization (U). Otherwise, themoral principle that was merely concealed in the discourse principlewould once again, as in natural law, be the sole source oflegitimation in law.It is important to note that the two key concepts in the proposedformulation of the discourse principle (D) remain indeterminate:"Only those norms of action are valid to which all possibly affected ·persons could assent as participants in rational discourses." This