Page 79 - Democracy and the Public Sphere

74 Jürgen Habermas

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meet them halfway’. Why should we want to take up an orientation
towards the moral point of view? ‘An assessment of morality as a
whole is itself not a moral judgment but an ethical one … Life in a
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moral void would not be worth living.’ Our orientation towards
morality cannot, then, be uncoupled from questions of identity and
who ‘we’ are as a species. Habermas’s ‘species ethics’ represents a
minimalist and provisional form of humanism, then. Nonetheless,
it does cling stubbornly to a residual humanism – something widely
declared moribund in today’s intellectual landscape.

The cultural specificity of discourse ethics applies in the sphere
of law as well. In The Theory of Communicative Actions, Habermas
concluded by posing the problem of a divorce between morality and
law as the latter takes on the systemic features of ‘juridifi cation’. In
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the two subsequent collections of essays Between Facts and Norms
and The Inclusion of the Other, this problem became his starting
point. In complex modern societies law can never be synonymous
with morality because legal discourses ‘also involve empirical,
pragmatic and ethical aspects, as well as issues concerned with
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the fair balance of interests open to compromise’. Laws ‘are too
concrete to be legitimated solely through their compatibility with
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moral principles’. But rather than thinking in terms of either a
divorce or conflation between morality and law, Habermas suggests

that we approach the problem in a dialectical fashion. Law should
be conceived in terms of a dialectic between private autonomy and
public autonomy. Private autonomy delimits ‘a protective cover for
the individual’s ethical freedom to pursue his own existential life-
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project’. Public autonomy, on the other hand, grants citizens the
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rights and wherewithal to contribute discursively to the authorship
of the legal norms which delimit that private autonomy. This does
not mean that in any large-scale community the distinction between
legislators and the addressees of law could be extinguished, of course,
but the politics of the public sphere aspires to improve the mediation
of the two spheres. 61
Neither public autonomy (privileged in republican thought) nor
private autonomy (privileged in liberal thought) must be given
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primacy. Rather, the two ‘reciprocally presuppose one another’ and

‘it is left to the democratic process continually to define and redefi ne
the precarious boundaries between the private and the public so as
to secure equal freedoms for all citizens in the form of both private
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and public autonomy’. This leads Habermas to make a particular

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