Table Of ContentThe Sense of Appropriateness : Application Discourses in
title: Morality and Law SUNY Series in Social and Political
Thought
author: Günther, Klaus.
publisher: State University of New York Press
isbn10 | asin: 079141552X
print isbn13: 9780791415528
ebook isbn13: 9780585092591
language: English
Appropriateness (Ethics) , Norm (Philosophy) , Prudence,
subject
Law--Philosophy.
publication date: 1993
lcc: BJ1418.5.G8613 1993eb
ddc: 170
Appropriateness (Ethics) , Norm (Philosophy) , Prudence,
subject:
Law--Philosophy.
The Sense of Appropriateness
Application Discourses in Morality and Law
Klaus Günther
Translated by John Farrell
State University of New York Press
SUNY Series in Social and Political Thought
Kenneth Baynes, Editor
Originally published as Der Sinn für Angemessenheit. Anwendungsdiskurse
in Moral und Recht.
© 1988 Suhrkamp
Published by
State University of New York Press, Albany
© 1993 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever without
written permission except in the case of brief quotations embodied in critical articles
and reviews.
For information, address State University of New York
Press, State University Plaza, Albany, N.Y. 12246
Production by Diane Ganeles
Marketing by Dana E. Yanulavich
Library of Congress Cataloging-in-Publication Data
Günther, Klaus, 1957-
[Sinn für Angemessenheit. English]
The sense of appropriateness : application discourses in morality
and law / Klaus Günther; translated by John Farrell.
p. cm. (SUNY series in social and political thought)
Includes bibliographical references and index.
ISBN 0-7914-1551-1 (acid-free). ISBN 0-7914-1552-X (pbk. : acid
-free)
1. Appropriateness (Ethics) 2. Norm (Philosophy) 3. Prudence.
4. LawPhilosophy. I. Title. II. Series.
BJ1418.5.G86 1993
170dc20 92-31385
CIP
10 9 8 7 6 5 4 3 2 1
Page v
CONTENTS
Translators Introduction ix
Author's Preface xvii
Author's Introduction 1
Part One: The Problem of Application in Discourse Ethics 11
1. Justification and Application on the Presupposition of a Semantic 15
Principle of Universalizability
2. Justification and Application on the Presupposition of the Moral 23
Principle (U)
3. Two Versions of the Universalization Principle 29
4. Application as Discourse 41
5. Can Justification Discourses be Replaced by Application Discourses? 45
6. The Application of the Moral Principle 59
Part Two: The Problem of the Application of Norms n the Development of 73
Moral Consciousness
1. The "Free Application" of Indeterminate Norms as a Result of Societal 77
Rationalization Processes (Durkheim)
Excursus: The Emergence and Following of Rules in Social Processes 87
Page vi
1. The Emergence of Situation-independent Meanings in Social 87
Situations (Mead)
2. Rule-following as a "Custom" (Wittgenstein) 91
2. Mead's Draft of a Universalist Ethics as a Method for the Constructive 101
Formation of Appropriate Hypotheses
3. The Differentiation Between Justification and Application at the 113
Postconventional Level of Moral Consciousness (Piaget and Kohlberg)
3.1 The Development of the Relation Between Equity and Equality in 114
Piaget
3.2 A Provisional Developmental Scenario 119
3.3 The Development of the Relation Between Equity and Equality in 125
Kohlberg
4. Is There a Contextualist Alternative to "Stage 6"?The Discovery that "it 137
depends"
5. Is Postconventional Moral Consciousness Rigoristic? 155
6. Summary: Three Levels in the Development of Types of Application 167
Excursus: "Phronesis" as an Example of Context-bound Application 171
1. The Aristotelian Theory 171
2. Appropriate Understanding: Hermeneutics 190
Part Three: Appropriateness Argumentation in Morality 203
1. The Problem of a Conflict of Norms: Prima Facie and Definitive Norms 207
Page vii
2. Appropriateness Argumentation as an Experimental Procedure and as a 221
Moral Learning Process
3. Elements of a Logic of Appropriateness Argumentation 229
3.1 Complete Description of a Situation 229
3.2 Norm Coherence 239
Part Four: Appropriateness Argumentation in Law 247
1. Discourse Ethics' Reasons for the Distinction Between Law and Morality251
2. Systems Theory's Concept of Law 255
2.1 Double Contingency 255
2.2 Law as an Autopoietic System: Differentiation into Code and 263
Programming
3. The Indeterminacy of Legal Rules 269
3.1 Hermeneutical Models 273
3.2 "Integrity": In Search of the Best Justification (Dworkin) 278
Notes 285
Bibliography 331
Index 345
Page ix
TRANSLATOR'S INTRODUCTION
I
Moral philosophy is now commonly divided into two parts: normative ethics and
metaethics, 1 on the one hand, and applied ethics or practical morality, on the other.2
This division is considered self-evident and is generally accepted by philosophers and
laypersons alike, and is currently institutionalized in the literature on moral
philosophy and in university courses.3 This is not of course incorrect, but it is this
very self-evident character which contributes to the circumstance that the parts are
more the disjecta membra than the differentiated components of an integral
philosophical theory of morality.4 So far, moral philosophy has failed to provide a
systematic analysis of the interrelationship of these two aspects, without neglecting
either one or collapsing one into the other.
If we may synecdochically express these elements in the form of the following
questions When is a norm valid? When is a valid norm appropriate to a concrete
situation? then we can recognize Klaus Günther's contribution as an attempt to
distinguish between, inter-relate, and answer these questions without having to
sacrifice the deontological, cognitivist, or formalist features of a universalist moral
philosophy.5 Indeed, it is probably possible to read non-normative, skeptic,
materialist, and contextualist (relativist) attacks on universalism as misguided
critiques;6 that is to say, what they are essentially critiquing is not the universalist
justification of norms, but the absence of a sufficiently differentiated argumentative
logic of the application of norms.
II
But up to now, moral philosophies of a Kantian provenience have really proposed an
answer only to the first question, have
Page x
failed to distinguish clearly between both, or have virtually misconstrued the second
by reducing it to the firstthe argumentative logic of application is assumed to be
identical to that of justification. Curiously enough, this is due in no small part to the
very type of universal principle which Günther takes as the point of departure of his
analysis. Put simply, the universalization principle "(U)," as developed in discourse
ethics by Karl-Otto Apel and Jürgen Habermas, states that a norm is valid only if all
those affected by its general observance can accept (in a practical discourse) the
consequences and side effects this observance could foreseeably have on their
interests.
However, such a norm would be "perfect." 7 That is to say, to recognize a norm as
valid according to this version of (U), we would have to have unlimited time and
infinite knowledge in order to be able to foresee all the possible situations in which
this norm could find appropriate application in the future, thereby regulating each
individual instance of its own application. For this reason, Günther drains a "weaker"
version of (U) by introducing a ceteris paribus clause, whereby a norm's validity is
established only for its observance under circumstances which are assumed to remain
unchanged, and that means that particular situations of application are not
considered.8 This does not however mean that the application of norms is left to a
context-bound phronesis;9 rather, it is now necessary to first distinguish
systematically between the "other things being equal" character of justification (the
universal-reciprocal sense of impartiality) and the "all things considered" character of
application (impartiality's applicative sense), where the specific situation is the focus
of attention and the norm's appropriateness refers only to the particular features of this
situation. Günther can then demarcate justification discourses, which are concerned
with the validity of a norm as a rule, from application discourses, which he derives
from the idealizing presuppositions of argumentation10 and which deal with the
appropriateness of a (valid) norm in a specific situation.
Taking the work of Durkheim, Wittgenstein, Mead, Piaget, and Kohlberg as the basis
for his analysis, Günther reconstructs this systematically introduced distinction
between the justification and the application of norms within the framework of the
development of moral consciousness and arrives at a three-level model of types of
application.11 The first level is characterized by the fact that justification and
application cannot be distinguished:
