2 Discourse ethics, democracy, and international law: toward a globalization of practical reason

American Journal of Economics and Sociology, The, Jan, 2007 by Karl-Otto Apel

ABSTRACT. This paper deals with the foundational "architectonics" (Kantian) at the ground of the internal relation between the three concepts raised in the title. First, I provide a short introduction into the ultimate foundation of practical philosophy by the transcendental-pragmatic conception of discourse ethics. Then, I discuss the foundational relation between discourse ethics, positive law, and democracy as a constitutional state of law. Finally, I explore the foundational relation between human rights as part of universal law, the democratic state of law, and international law or jus gentium. By taking issue with Kant, Habermas, and Rawls, I try to show that a rational foundation of ethics, as well as a rational approach to the traditional problems of international law, is only possible through a critical transformation of Kant's approach via a transcendental-pragmatic conception of discourse ethics.

I

Introduction: In View of a Foundational "Architectonics" of Practical Philosophy

IN WHAT FOLLOWS, I want to make an "architectonical" comment on the internal relationship among the three topics that I have raised for discussion: discourse ethics, democracy, and international law. My comment is to be "architectonical" in the Kantian sense, concerning the place of the three topics within a transcendental foundation of practical philosophy.

In what follows, I will first give a roughly sketched account of the transcendental-pragmatic foundation of discourse ethics as a basic precondition of practical philosophy; second, I will comment on the relationship between discourse ethics and positive law. In both parts of my discussion, I shall also give an argument dealing with Habermas's understanding of "architectonics" as outlined in his book Between Facts and Norms. (1) Finally, I will make some remarks on the foundational relationship between human rights and democracy, on the one hand, and the actual problems of international law (jus gentium), on the other. In this last part of my essay, I shall also give an argument against the late John Rawls's conception of the law of peoples. (2)

II

On the Transcendental-Pragmatic Foundation of Discourse Ethics

I SHOULD FIRST SAY that I am well aware that any talk of "transcendental," especially in connection with "foundation," sounds outmoded today. It is often equated with a metaphysical fundamentalism or foundationalism and, as such, it could be seen as offering an obsolete paradigm of philosophy.

In this vein, Richard Rorty and also my friend Jurgen Habermas propagate "de-transcendentalization" as a methodological precondition of any modern, topical philosophy. Now, I admit that Kant could not avoid entangling or reentangling himself in metaphysical foundationalism. The problem is already present in his theoretical philosophy, especially in his supposition that "things-in-themselves" are unknowable, but it is just as much present in his practical philosophy, especially in his making the foundation of practical philosophy rest on the supposition that there are two realms or "worlds" (one of unconditioned "perfect virtue" and the other of empirically conditioned "human law") whose

citizens are simply human beings. But these metaphysical features of Kant's philosophy, I think, contradict the spirit of his critical distinction between the "transcendental" (i.e., the conditions of the possibility of empirical validity) and the "transcendent" (i.e., what could only be conceived from God's point of view). And I have come to the conviction that Kant's metaphysical suppositions can be avoided by a transformation of classical transcendentalism. (3) Let me elaborate.

The Kantian distinction between unknowable "things-in-themselves" and mere "appearances" can be replaced, I propose, by the Peircean distinction between the "real" as the "knowable" (in the long run) and what cannot, as yet, be "known." Also, the supposition that both Descartes and Kant share of the "I think" (the "cogito"), which, as Husserl recognized, implies a "transcendental solipsism," can be replaced by the transcendental supposition of "I argue" as a member of a discourse community. The "I argue" implies the use of language and intersubjective communication. It follows, then, that we can also transform Kant's foundation of practical philosophy. For example, in the case of the transcendent "kingdom of ends," namely, a community of reciprocal relations among purely reasonable beings (which Kant needed in order to ground the validity of his "categorical imperative"), we can now say that this is just a metaphysical anticipation of the transcendental presupposition of an ideal communication community. This presupposition, in turn, is necessarily connected with any serious argument that, by virtue of its universal claim to validity, must implicitly postulate universal acceptability.

I am suggesting with this presupposition that the ideal communication community is also the nonmetaphysical but transcendental-pragmatic basis of discourse ethics, as I have tried to show since around 1970. (4) I want to add that, in my opinion, there is no other possibility of grounding normative ethics on what Kant called the (nonempirical) "fact of reason." And this means that we should avoid any derivation of moral norms from empirical facts or from "transcendent" (metaphysical) suppositions. The meaning of Kant's "fact of reason," I suggest, can be explicated as follows.