BASIC INDIVIDUAL RIGHTS

Consequences for a theory of individual rights follow from the preceding discussion of the question of law's ethical neutrality. The liberal conception of the "legal person" -as the subject of positive law and bearer of individual rights-was determined as being ethically neutral in the sense that it is not based on any ethical conception of the good. Its justification rests on gen­

eral norms and not on ethical values. The liberal conception of the legal person is not however ethically neutral in imposing restrictions on ethical conceptions of the good or on particular communities; moreover, it is an enabling condition for the development and realization of the good through individuals and communities. Thus liberal theory draws from the

"fact of reasonable pluralism" (Rawls) -that is, the decline of ethically in­

tegrated political communities-the necessary conclusion of a procedur­

alist theory of the justification of norms.

The normative-legal status of the legal person not only secures the equal recognition of all persons before general laws and thereby forms an exter­

nal protective cover for particular identities, but as such it is also sensitive to the rights claims of those identities that, by standard norms of equal treatment, are treated in effect unequally on account of their difference.

The claim of being

generally

and

reciprocally

justified obligates law to take into account the

particular

perspective of those who have so far been ex­

cluded from the community as a whole. Legal autonomy is the general framework for particular ethical autonomy; legally guaranteed "negative"

liberty makes ethically "positive" liberty possible. Individual rights are not located outside contexts of intersubjectivity and are not ascribed to atom­

istic, contextless, individualistic subjects; rather, they secure general rec­

ognition as legal cohorts and the particular possibility of developing per­

sonal identities ^m different intersubjective-ethical contexts and communities.

Basic individual rights are therefore guaranteed by norms that "cannot be reasonably rejected," norms that conform to the

strict

criteria of reci­

procity and generality. Thus no person can

reciprocally

dispute with good reasons another person's rights and justified claims that he or she asserts for him- or herself (e.g., the right to one's own way of life) , and any argu­

ment that generalizes ethical values must be formulated in a way that can be accepted

generally.

Reasons that must be justified in strict reciprocity and generality legitimate norms that, by observing the "threshold" established by these two criteria, do not violate persons' elementary rights claims to autonomy and grant these claims-through the positivization of such

THE ETHICAL NEUTRALilY OF ! .A W H 1

norms-a concretized, protective legal status. If a person attempts to cross argumentatively the divide between what is valid

for him or her

and what is to be valid

for all,

arguments have to be given in accordance with the dif�

ferent validity modes of ethical and general norms. As Nagel ( 1 99 1 , 1 59) aptly expresses it, "if you force someone to serve an end that he cannot be given adequate reason to share, you are treating him as a mere means­

even if the end is his own good, as you see it but he doesn't. " Put another way, this means that no one may be forced to advance general reasons for the values that are valid for him or her as long as he or she does not violate any moral principles or raise any moral claims.47 Basic individual rights are rights to personal autonomy within the limits of generally justified princi­

ples-they can be

defended

or

restricted only

by strict, moral-universal argu­

ments. In this sense, they are

justified

(and always justifiable) , not simply

"given "

basic

rights. Nongeneralizable reasons cannot serve as the founda­

tion for legal principles. In this sense, law secures individual liberty:

"Free­

dom

(independence from being constrained by another's choice) , insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity" (Kant 1 99 1 , 63) . The rights of individual liberty-the right to respect for the integrity of the person and for the personal freedom to act-are rights to liberty that cannot be restricted by reciprocally and gen­

erally justified norms; in fact, those norms protect them. Liberty rights are thus not "innate" or primarily justified on the basis of "highest-order inter­

ests" (Rawls) ; they are moral rights of "reason " in the sense that they cannot be reasonably disputed inasmuch as persons recognize one another as au­

thors and addresses of the norms to be justified. What is first of all deter­

mined in this way is just a mode of justification, not any concrete contents.

Therefore, what is foundational is an individual basic

right to justification,

the right of moral persons to veto, as it were, certain norms (or actions) .48 This right corresponds to the

principle of practical reason

that only recipro­

cally and generally justified norms can claim general (or, in moral matters, universal) validity: no generality or universality can therefore disregard in­

dividuals' justified rights claims. The right to justification is not to be un­

derstood as an "original" liberty right in Kant's sense; rather, it is inherent in the principle of justification, which has to be "recursively" reconstructed, and which I characterize as a principle of practical reason (see chapter 4. 2 ) . Here, "practical reason" is to be grasped not as an authoritative source of moral norms but as the capability of "reasonable" persons to give in the appropriate contexts "good" reasons for (action-legitimating) norms. Prac­

tical reason is understood in a nonmetaphysical sense as a reason

in

(and not outside) intersubjective contexts. This conception of reason, morality, and law makes it possible to provide a justification of the principle of equal individual rights, which corresponds to Rawls's first principle of justice,

82 THE ETHICAL NEUTRALI1Y OF LAW

without calling on the thought experiment of the original position. In its revised form, Rawls's principle states: "Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all" (Rawls 1 g82a, 5; see chapter 3.4) .

The conception of the "legal person" is however determined not only in the normative sense to be a person with

individual rights,

but also as the subject of

positive law.

Frequently, these two dimensions are not sufficiently distinguished in the liberal, natural-law tradition (which calls positivism into action) ; they do nonetheless draw attention to the fact that legal per­

sonality embodies only in essence moral norms, the realization of which requires institutionalization, concretization, and interpretation, however.

Law is always the law of a particular legal and political community. We infer from the above-mentioned principle of the general justification of norms that legal personality embodies in its

core

moral norms of reciprocal rec­

ognition, yet its

determination

and

realization

require, in accordance with this principle, institutionalization within a political community and

legitimation

by this community. This requirement in turn means that procedures of

"public justification" in political discourses among citizens are necessary to determine law in the legitimate sense.49 The moral content of the principle of general justification must be politically "translated," a translation in which law does not duplicate a transcendental moral order and political discourses do not operate in a moral-free space: the criteria of strict reci­

procity and generality do not ascribe content to these discourses but set conditions for the treatment of moral problems that appear in political contexts.

There thus emerges a complex picture of various "contexts of justice"

(which still cannot be fully explicated here) : norms that can be justified in strict reciprocity and generality are for every human being as a

moral person

obligating norms of action in light of which a person must be able to justify him- or herself in moral contexts to every other concrete person. In legal­

political contexts these norms are to be translated into human and basic rights. These rights form the abstract core of the conception of

legal person

(as a general protection of the

ethical person) .

Unlike morality, law is valid only within a legal community; it obligates persons to act not in a morally motivated manner but in agreement with the law; it is therefore-with its coercive character-addressed to persons' freedom of choice and stabilizes mutual expectations regarding external conduct (cf. Habermas 1 gg6a, 1 1 2 ) . As legal persons, people are the subjects of a certain, institutionalized law, which is the law of a political community. Legal persons are subjects and

addressees

of this law, and as

citizens

they are at the same time its

authors.

It is the consensus of the citizens that first creates (and later changes) law and that is the medium within which claims to recognition are discussed and recognized. This is not supposed to mean that the status of the "citizen"

THE ETHICAL NEUTRALilY OF LAW 81 is not a legal status too; in a normative respect, however, this status adds

the dimensions of political rights to participation (

Teilnahmerechte)

and so­

cial rights to share society's resources (

Teilhaberechte) -as

enabling personal and political autonomy-to the individual rights to personal liberty. It thereby gives effect to the conception of political autonomy alongside that of personal autonomy and thus to a different dimension of the duties, responsibilities, and reciprocal recognition of "citizens. "50

An example of the connection between various conceptions of the per­

son proposed here can be found in Kant. He distinguishes the following

"a priori principles" of a legal state: " 1 . The

freedom

of every member of society as a

human being.

2 . The

equality

of each member with every other as a

subject.

3· The

independence

of every member of the commonwealth as a

citizen"

(Kant 1 983, 7 2 ) . He determines the first as the right of every human being to "seek happiness in the way that seems best to him [or her] "-that is, ethical-personal autonomy; the second as the right to be subject to general and identical laws irrespective of status or ancestry-that is, legal autonomy; the third as the right, as "co-legislator" ( 7 5 ) , as

citoyen,

to pass laws that express the "public will"-that is, political autonomy. Re­

iterating Rousseau's idea, Kant regards this last one as an essential require­

ment for the legitimacy of law, since this is the only way to guarantee that law is general: what affects all must be decided by all, "for only to oneself can one never deny what is right" (76) ,r>1 as Kant says (cf. Maus 1 992, 1 48-7 5 ) . Law requires legitimation through all those affected, as citizens. Lib­

eralism-as a descendant of the natural-law tradition-cannot content it­

self with justifying universal moral principles without establishing the nec­

essary connection to the democratic constitutional state. Moral rights are not institutionalized and determined by themselves, and law's legitimacy cannot be explained by its being "covered" in its validity by natural-law norms.

This is overlooked by a liberal position that disputes a necessary con­

nection between law and deliberative democracy; even a "liberal-minded despot," as Isaiah Berlin ( 1 969b, 1 29) says, could guarantee individual rights: 'The answer to the question 'Who governs me?' is logically distinct from the question 'How far docs government interfere with me?' " ( 1 30) . For law is legitimate only because the subjects of law (Kant's

Untertanen,

the subjects of the ruler) conceive of themselves as the authors of the law and recognize their interests in it; that is to say, they acknowledge it as

their

self-given law. There is no other way to answer the follow-up question to Berlin's, namely, what rights do persons concretely have as well as what interference can be justified, and how. General legitimacy and individual freedom to act are conceptually connected in this way in the framework of law. Personal and political autonomy refer to each other.

In his legal theory, Habermas terms this internal connection the

"co-84 THE ETHICAL NEUTRALI1Y OF LAW

originality" of the two conceptions of the autonomy of persons as the ad­

dressees and as the authors of law ( 1 gg6a, 1 03-4) . Below the level of a

discourse principle

(D) for the justification of action norms-"D: Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses" ( 1 07)-he draws a distinction be­

tween a principle of morality and one of democracy. The former refers to universally valid moral norms, the latter to the justification of legal norms.

The discourse principle and the concept of "legal form"-according to which, as presented above, coercive law relates to the "external relation"

of legal persons with freedom of choice-"interpenetrate" in the principle of democracy in such a way that there follows a "logical genesis of rights"

( 1 2 1 , italics omitted) that persons as addresses and authors of law must grant reciprocally "if they want to legitimately regulate their interaction and life contexts by means of positive law" ( 1 2 2 ) . These are basic rights to the greatest possible measure of individual liberties, to equal membership, to legal actionability, to political participation, and, in a derivative sense, to securing the material conditions for having equal opportunities to avail oneself of these rights to private and political autonomy. The internal con­

nection between human rights and popular sovereignty means that there is no democracy without the exercise and institutionalization of political power in the form of law (and therefore not without the status of the pri­

vately autonomous

legal person) ,

and there is no legitimate law without dem­

ocratic legitimation (by politically autonomous

citizens) .

But nothing has yet been said about the content of these rights-it is "unsaturated" inas­

much as it is not politically "interpreted and given concrete shape" ( 1 25, italics omitted) .

This argument rightly avoids the thesis of the priority of moral rights, which have to be determined in "transcendental purity" ( 1 29) and are given in advance as natural rights, "prior to the state," so to speak; but it cannot avoid recognizing the moral core of individual liberties, which jus­

tifies speaking in the first place of "human rights" ( 1 04) and judging the legal order morally ( 1 06) . The alternative between natural law, on the one hand, and individual rights as the positivized possibility of liberty without its own moral weight, on the other, is too narrow: the discourse principle itself, understood as the principle of reciprocal and general justification, requires that individual liberty rights be understood as moral rights that cannot be mutually disputed; moreover, these rights constitute the

abstract

core of the legal person and must be politically determined and interpreted in their

concrete

content. Thus no additional external moral requirement is imposed on law other than the one it has to meet in any event according to the criterion of general legitimacy. In its "translation" into political-legal contexts, the moral content of reciprocal justification does not mean that

THE ETHICAL NEUTRALITY OF LAW N;

all legal norms, which must be justified at the level of

restricted genrmlity

wi tit reasons that are in the broadest sense political (ethical or pragmatic ones, for instance) , require moral reasons to be legitimate;52 this content does however mean that the criterion of

strict

reciprocity and generality requires that, in the case of moral questions that concern basic rights,

moral

reasons satisfying this criterion be given. Basic rights do indeed have a concrete legal content, but they require moral justification: they form the core of the protection of the person, and, for moral reasons, this core

cannot

be limited in favor of ethical or practical considerations. This morally justified primacy of basic rights within law is underscored by Habermas's

deontowgical

understanding of law (see Habermas 1 gg6a, 256; t gg8a, 2 1 6) . This moral claim made on law does not come from without but is raised against it from within by the claims of those who, to defend their "person," demand strictly reciprocal reasons in the event of an infringement of their rights.

Within

contexts of political discourses, the members of legal communities require that law and morality

"substantively

intersect" ( 1 gg6a, 207) . This conception of a "threshold of reciprocity and generality," as I call it, which gives effect in a procedural-criteriological manner to moral points of view within law, justifies in the first place the demand for the "greatest possible" and "equal"

individual freedom. The different validity modes of law and morality are thereby maintained; but moral demands are made on law, ones it must meet as legitimate law. 53

Thus the following constellation of personal-legal, ethical, political, and moral autonomy becomes evident. If morally autonomous persons are si­

multaneously (co-) authors and addressees of moral norms (see chapter 4) , then persons are as citizens (co-) authors and as legal persons addressees of legal norms, which make ethical autonomy possible. Until now, the eth­

ical and the legal dimensions have been at the center of the discussion; at the following points, however, reference was already made to the concep­

tual connection with the concepts of citizenship and political community.

First,

without these dimensions the theory of the neutrality of law and of the public justification of legal norms, and their concrete political deter­

mination, is incomplete. Law is always the law of a particular political com­

munity and the subject matter of citizens' political discourses. This com­

prehension of law therefore raises the question of the nature of both this community and these discourses. What does the principle of justification mean in political contexts?

Especially the discussion of the feminist critique of liberalism and com­

munitarianism makes it clear that law cannot be primarily the forum in which claims to recognition are raised.54 In its discourses and institutions, the political community itself must be the forum in which the relation between generality (legal person) and difference (ethical person) is

dis-86 THE ETHICAL NEUTRALI1Y OF LAW

cussed and regulated, and in which groups raise their voices to protest against exclusions and to question power relations (operative in how "pri­

vate" is defined, for instance) .

Second,

in the discussion of the question of affirmative action it became apparent that it is necessary to give formerly excluded groups certain pos­

sibilities to raise their claims politically. For that, not only political but also social rights are required. The status of the "citizen" not only requires for­

mally equal opportunities to participate but also includes material condi­

tions, which make personal

and

political autonomy possible. To secure and to determine these is the task of a political community.

Third,

in the discussion of the rights of cultural minorities the question appeared as to what substantive conditions belong to the conception of the full citizen as a member of the political community. How formal or sub­

stantive can "membership" in a political community be determined if it is not to exclude cultural differences?

These systematic questions lead back to the debate between liberalism and communitarianism-the questions of political legitimation, of the fo­

rum for public discourses, of social justice and solidarity, and of citizenship

rum for public discourses, of social justice and solidarity, and of citizenship

In document Forst, Rainer Contexts of Justice (Page 93-101)