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Civil Ethics and the Validity of LawAuthor(s): Adela CortinaSource: Ethical Theory and Moral Practice, Vol. 3, No. 1, Justice in Philosophy and SocialScience (Mar., 2000), pp. 39-55Published by: SpringerStable URL: http://www.jstor.org/stable/27504118 .

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ADELA CORTINA

CIVIL ETHICSAND THE VALIDITY OF LAW

ABSTRACT. This paper aims to clarify the nature and contents of 'civil ethics' and thesource of the binding force of its obligations. This ethics should provide the criteria forevaluating the moral validity of social, legal and morally valid law. The article starts withobserving that inmorally pluralist Western societies civil ethics already exists, and hasgradually started to play the role of guiding the law. It is argued that civil ethics shouldnot be conceived as 'civic morals' which is in fact rather 'state ethics', nor as 'publicethics' which is said to reach its perfection when it becomes law, nor as ethics applicableprimarily to the basic structure of a society (political liberalism), but instead as a citizens'ethics. Subsequently the paper attempts to show what the contents of this ethics are, andwhich ethical theory would be able to ground its obligations.

KEY WORDS: citizenship, civil ethics, law, legal validity, moral obligation, moralpluralism, moral values, public ethics, virtues

1. Civil Ethics: A Necessity for Law in a Pluralist SocietyIn Section I of Spanish Law 35/1988 on Assisted Human Reproductionthe question is raised what kind of ethics can guide the law in amorallypluralist society. Although the document does not go into in-depth reflectionon this point, its conclusions clearly reveal that the answer to the questionlies beyond the natural law tradition and beyond legal positivism.A natural law standpoint which, whether in its traditional or 'posttraditional' version, ultimately takes only what is just from a certain moralconception as 'valid law', is not an acceptable basis for legal legislationin a morally pluralist society.1 But neither is legal positivism, whichconsiders that ths form of law is sufficient to identify the legal sphere,independently of morality, and which will in its extreme version go as faras defending that positive law decides on morality. Pluralist societies atthe post-conventional level in the development of moral consciousnessregard, in contradistinction to legal positivism, both social validity and legaland moral validity to be components of the concept of the validity of law:legal norms must be socially effective [social validity], be passed in

!See, amongst others, C.S. Nino (1984, p. 24).

Ethical Theory and Moral Practice 3: 39-55, 2000.? 2000 Kluwer Academic Publishers. Printed in theNetherlands.

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40 ADELA CORTINAaccordance with a legal system (i.e., be enacted by the competent body inaccordance with the appropriate procedures and not clash with a law ofsuperior rank) [legal validity], and also seek justification within aframework of morality [moral validity] (Alexy, 1991, 1993, ch. 3).The question is thus what kind of morality should guide legal norms ina pluralist society in order to be both socially effective and morally valid.The answer to that question has at least two facets: (1) It cannot consist ina particular moral philosophy, shared by members of a philosophical school,butmust instead consist in some kind ofmorality forming part of everydaylife. If we accept the usual distinction between morality involved ineveryday life and moral philosophy, there can be no doubt that themoralitywhich should inspire a society's positive legislation must stem from thatsociety's life world.2 According toKant, the philosopher can provide theformula for elucidating what maxims aremoral laws, but duties form partof everyday life. Philosophical doctrines obviously influence everyday life,but do not form this (Kant, Kr.p. V., V, p. 8.). (2) Itmust also be a kind of

morality which is in some way shared by the society as a whole, taking'whole' asmeaningnot the numerical

majority,but the type of

consciousnesswhich gives that society cohesion. In this respect, the reply given in theLaw of Assisted Human Reproduction is a good example of what isimplicitly accepted in a good deal of documents in pluralist societies: Civilethics is the only ethics that can confer moral authority to legislation.3

The importance of such ethics is enormous, because inwestern countriesits scope goes much farther than attempting tomorally justify a particularlaw. It is the kind of ethics which should judge themoral validity of positivelaws in pluralist societies. It also forms the common ethical basis ofNational and Local Bioethics Commissions and Committees, of ethicalcodes and company auditing, as well as of different professional codes. Itin fact involves this whole set of spheres on which the different branchesof 'applied ethics'4 reflect, each one of which is?in my opinion the result

2Iuse the terms 'morals' and 'ethics' indistinctly in this work, though I usually distinguish between 'ethics' as moral philosophy and 'morals' as themorality of everyday life.

3The aforementioned Law states that "From an ethical standpoint social pluralism anddivergence in opinions are frequently expressed on the different uses made of assistedreproduction techniques. Their acceptance or rejection will have to be argued from aposition of being properly informed, and be determined with no partial motivations orideological, confessional or biased pressure, being sustained only on ethics of civic orcivil nature".

4For other perspectives on applied ethics, see, amongst others, A. Edel, E. Flower andF.W. O'Connor, 1984; L.K. Sosoe (ed.) 1998.

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CIVIL ETHICS AND THE VALIDITY OF LAW 41of applying civil ethics to a sphere of social life. Iuse the term 'apply' inthe sense of a critical hermeneutics: as the discovery of ethical values andprinciples, which are modulated in a different way in different socialspheres (Cortina, 1993).

Civil ethics thus constitutes the ethical background of, and creates theconditions for social cohesion inmorally pluralist societies. Besides that,because civil ethics forms the hinge between personal ethics, the ethics ofdifferent spheres of social life and law, it is also an excellent context foranalysing the relations between morality and law.But civil ethics is not only that. Western countries faced with thechallenges of new technologies are jointly preparing ethical documents,which in turn guide the legislation in the individual countries. Thislegislation normally consist of three parts: one scientific, one ethical andone juridical. And even when countries are not actually jointly draftingsuch documents, they will try to tune their ethical documents to those ofother countries ideologically close to them. This leads to a continuousnarrowing of the moral and juridical differences between countries. InHuntington's view the (always hazy) boundaries between differentcivilisations can be marked by the religion that is or was at their base(Huntington, 1996). But it is increasingly a common civil ethics that unitescountries of a Judeo-Christian tradition (Europe, Latin America, theUnitedStates, Australia). The germ of a global ethics (Apel, 1973, vol. II, pp. 358)which this ethics might be said to contain, could indeed be theWest'scontribution to an intercultural dialogue.5 The Kantian dream of an ethicalcommunity, governed?at least verbally?by common moral laws, in closecontact with apolitical community, governed?at least verbally?by certaincommon legal laws6 will then come true.It is nevertheless not easy to explain what the nature of such ethics is:Does it have some material content or is itmerelyprocedural! What is itsrelationship with law! What is the bindingforce of its requirements? Aboveall, two reasons might serve as an explanation for this difficulty. Firstly, itis a type of ethics which must correspond to the ethos of a specific politicalsociety, and which must nevertheless strive to some extent for universality,attempting to gain the status of Moralit?t. Secondly, this ethics hasgradually been developed in a contingent sense as a social fact but, to havebinding power, itmust contain an internal normative rational core with the

5Inmy view this contribution has the form of an '?tica m?nima' (Cortina, 1986). Iprefer the conception of an '?tica m?nima' over that of Rawls in The Law of Peoples(1993) or ofWalzer inThick and Thin (1994).

6I.Kant, Die Religion innerhalb der Grenzen der blossen Vernunft, VI, 91?100.

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strength ofthat rational reality which Hegel called 'Wirklichkeif as opposedtomere 'Realit?t'. From mere contingent factualness one can draw social,but not moral, nor even legal compulsoriness in the long term; it is the'vern?nftig' which is 'wirklich'. This iswhy, from a criticalhermeneutics,one must try to discover what this already 'wirklich' civil ethics consists

of, what its rational, effective core is and what its relationship iswith lawand politics.

2. The Nature of Civil Ethics

Shortly after the Spanish Constitution was passed (on 6th December 1978),Pedro Lain Entralgo published an article inEl Pa?s of September 6,1979inwhich he characterised civil ethics as follows:

Civil ethics is the ethics which, whatever one's ultimate beliefs may be (positivereligion, agnosticism or atheism) should oblige us to co-operate in the perfection ofthe social groups to which we belong in our everyday lives: professional concerns,cities, unitary nations or, as is starting to occur in our case, nations of nationalities andregions. Without an implicit consensus between citizens about what that perfectionessentially is, civil morality does not seem possible.

Such words may lead us to think that a shared civil ethics does not in theoryseem somuch necessary for solving legal problems as well as for solvingsocial problems in awider sense: a society which does not share a certainidea of'perfection', an idea of what values areworth fostering, and passingon, is a radically destructured society and its citizens are incapable of takingon common projects. Lain was not using the expression 'perfection' to referto a model of person, as is defended by perfectionist ethics, but to anensemble of moral values and principles, from which shared projects canbe designed. In the opposite case, the society is not morally pluralist, but'axiologically polytheist', according toWeber, and thus incapable of

reaching rational moral agreements: if there is any moral consensus thiswill be contingent, but not rationally demanded.Obviously the need to recognise the existence of this shared moralityand to give it a name is particularly found in the societies which have

recently shifted from 'moral monism' to moral pluralism. When largenumbers of its people are accustomed to having a single moral code withmaterial content they are bewildered by the official appearance of adiversity of moral codes. Is this a symptom of axiological polytheism, moralrelativism, scepticism or of a pluralism, which consists in agreeing as tocertain values and principles and differing as regards others?

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CIVIL ETHICSAND THE VALIDITY OF LAW 43In amorally pluralist society it is important togive a name to the sharedethics so that the population become aware of what they share morally. A

philosophical name (such as mutatis mutandis, that of "moral conception ofjustice") is not enough. The name must be acceptable in everyday life,enabling to perceive it as a conscious social reality. 'Civil ethics' meets thiscriterion. It enables citizens in pluralist societies to know they are theprotagonists in their moral lives, to recognise the urgency of applying thisethics in different social spheres and also of transmitting it through education.The main characteristics of civil ethics are (see Cortina, 1993,1998,1999):

(1) Civil ethics is a social reality, not a philosophical construct, formingpart of the Lebenswelt (life world) proper to a pluralist society, of themoral consciousness of this society.

(2) This is the type of ethics which binds persons as citizens and for thisreason it can only be implemented in countries whose members areconscious of being citizens, and not serfs or vassals.

(3) Civil ethics is dynamic. It is the historical crystallisation of valuesshared by different conceptions of the good life, but also by the spheresof civil society (business, professions, media, etc.) and by the politicalculture proper to democratic societies.

(4) The different conceptions of the good life could be called 'ethics ofmaxima', since each of these proposes a hierarchy structure ofresources necessary for a good life, and also provides the 'greaterpremises' for warranting the conclusion that is the best form of life.Civil ethics is an 'ethics of minima' shared by the ethics of maxima,by the spheres of civil society and by the political culture.

(5) Civil ethics is obviously public ethics, but so is ethics of maxima.There is no private or 'non-public' ethics: on the contrary all of themcontain the element of publicity (the tendency to be made known tothe public through public opinion, with comprehensible andadmissible reasons).

The difference between the civil ethics of minima and ethics ofmaxima does not therefore consist in the fact that the former is

implemented in the public sphere and the latter in the private realm,or in that civil ethics demand public reasons and the ethics of maximarequire non-public reasons. It lies instead in theway these are binding:compliance with civil ethics can be morally demanded of society,(though not imposed by means of external sanctions, which can indeedbe done by law), while the ethics of maxima must invite the citizensto follow their model of a good life, but cannot demand compliance,and much less so impose this by external sanctions.

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44 ADELA CORTINAThe sphere of civil ethics is that of requirement, not only ofinvitation (ethics of maxima), but neither is it a sphere of external

imposition or coercion (law).(6) Civil ethics is a citizens 'ethics, proper to civil society, and in this

respect one should point out its differences with three otherphilosophical interpretations of public ethics with which it cannot beidentified.

(a) As citizens' ethics, it is not identical to the 'civic morals' thatDurkheim spoke of and which is in fact rather State ethics, becausethe State is the collective's true conscience, the body best fitted toknow what is good for people. While the group knows what its goodis only in a confused way, through myths, narratives and feelings, theState knows this lucidly (Durkheim, 1957, p. 50). On the contrary, civilethics, as citizens' ethics, understands that citizens are the interpretersbest qualified to establish what values are worth being pursued.(b) Neither can it be identified with the idea of 'public ethics',defended by authors like Peces Barba. In their view 'public ethics' isa type ofmorality that should be incorporated in positive law, guidingits aims and objectives. They name this public ethics 'critical morality'when it has not yet been included in positive law and is used as acriterion for judging this, and "legalised orpositivised morality" whenit has been incorporated in positive law. Public ethics is said to reachits perfection when it becomes law. Thus the nature of public ethicsdoes not oppose external imposition (Peces, 1995).

Against this interpretation of public ethics we must say that ethicsnever 'reaches perfection' when itbecomes law. The reason why wename public ethics 'civil ethics' is tomake it clear that itmust indeedguide just law, but has above all the aim of being incorporated in theattitudes of citizens, becoming conviction and custom, forming partofthat ?thos of society, which can never be reduced to legal norms,but always transcends these.7(c) Civil ethics as discussed herein clearly has a great similarity with

what Rawls calls a moral conception of justice. Nevertheless, it isdifferent from this in at least the following points:

7"Aber in der einfachen Identit?t mit der Wirklichkeit der Individuen erscheint dasSittliche, als die allgemeine Handlungsweise derselben - als Sitte, ? die Gewohnheitdesselben als eine zweite Natur, die an die Stelle des ersten bloss nat?rlichen Willensgesetzt, und die durchdringende Seele, Bedeutung und Wirklichkeit ihres Daseins ist, derals eine Welt lebendige und vorhandene Geist, dessen Substanz so erst als Geist ist"(G.W.F. Hegel, Grundlinien der Philosophie des Rechts, par. 151).

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(c.l) The aim of civil ethics is not political, in the liberal sense ofthe expression. Its primary subject is not the basic structure ofsociety, but the ethos of the citizens and the spheres of civil society,nor is its goal to ensure the stability of a democratic constitution,but to enable citizens to reinforce the values which already unitethem and which are the expression of a reason which has graduallyrecognised-created them historically.(c.2) Civil ethics is not created to solve legal conflicts, even thoughitmay be of assistance in doing so, nor does it have the Supreme

Court of Justice as a model of rationality. It is possible thatEuropean society is not yet as judicialized as North Americansociety, where numerous works on moral and political philosophy(not only on the philosophy of law) have origins lying in judicialdecisions,8 and where the model of judicial reason impregnatesculture to such an extent that the form of arguing in the SupremeCourt becomes for Rawls even a paradigm of the public use ofreason. Indeed, "to check whether we are following public reason"? Rawls says ? "we might ask: how would our argument strike uspresented in the form of a supreme court opinion", Reasonable?Outrageous? (Rawls, 1993, p. 254).If in Kantian moral philosophy it is essential to apply thecategorical imperative test in its triple formulation to check if a

Handlungsmaxime can be turned into amoral law; if in Kant'spolitical philosophy the sovereign must submit to the "fourthformulation of the categorical imperative for use of sovereignty"9(according towhich, "the sovereign cannot promulgate any morelaws than the people could have wanted"), the thought experimentthatRawls proposes for checking if the arguments match the proper

procedure of public reason consists in imagining if they are onesthat would be admitted in the Supreme Court, thereby suggestingthat the Supreme Court is the "court of practical reason" parexcellence.(c.3) "Moral conception of justice" is ^philosophical expression,which hermeneutically compiles the contents of an overlappingconsensus. The expression 'civil ethics' is assumable in the life

world, which enables this to be institutionalised more clearly. A

8See, for example, Dworkin, 1989; Macedo, 1995. See also the discussions in numerous works dealing with amendments to the Constitution, which displays the juridicalgenealogy of this type of doctrine.

9SeePhilonenko(1976).

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good way of moving on from the Moralit?t to the Sittlichkeitconsists in giving social realities socially recognisable names. Thisis even more necessary in the ethical world, which does not have

Parliaments, or Churches, but has to be created by citizensthemselves.(c.4) As we will see below, the hermeneutical-coherentialphilosophical model as well a contractualist paradigm are utterlyinsufficient rationally justifying the contents of Civil ethics. Areconstruction of its binding power requires appealing to a criticalhermeneutics which discovers the values going along with the

paradigm of reciprocal recognition and the attitudes and proceduresrationally demanded by it.

3. The Contents of Civil Ethics. Morality and LawIn After Virtue Maclntyre reminded us that the different Enlightenmenttraditions of moral philosophy oddly coincided in considering almost thesame precepts as being moral, while differing as to the foundations withwhich they attempted to underpin these. Something similar occurs withcivil ethics: there is today widespread agreement on the contents of differentcivil ethics, while philosophers turn to different moral philosophies whenattempting to support or justify itsmoral obligations.The first coincidence consists in the rather curious fact that one findshardly any rules in the contents of different societies 'civil ethics. Ethicalrules can be found in sectorial codes (of companies, hospitals orprofessions) but not in the common denominator of all of these, which iscivil ethics. In spite of the efforts of deontic logic to construe moral 'codes'as 'paralegal' codes of rules, in spite of the well-founded communitarianaccusation that liberals are concerned with rules and not with virtues, inspite of the great presence on the European continent of the formalist andprocedural tradition with its roots inKant, civil ethics does not consist ofa set of norms. For this reason, the differences between morality and lawdo not stem from these being two forms of legislating, or from their usingtwo types of procedures to determine if a rule is correct, but from the factthat twoforms of obligation, twoforms of demanding axe involved for thecontents. Here the Kantian tradition does indeed continue to be fruitful,but to the extent that itdistinguishes between two forms of obligation, ratherthan between two forms of requiring compliance with rules.We should indeed remember how the tradition started by Pufendorf andKant understands that ethical laws and legal laws are distinguished by the

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following criteria: (1) the agent's motive (respect for a law/empiricalmotive); (2) the type of coercion (self-coercion/external coercion); (3) therealm of freedom governed (internal/external); (4) the objects of legislation(maxims/actions); (5) the type of demand which each of these kinds oflegislation canmake on the agent (morality/legality); (6) the subject judgingas regards the legitimacy of the rule (subject agent/legislator); (7) the idealatwhich the legislation is aiming (realm of ends/perpetual peace).10

Nowadays criteria 1, 2 and 5 continue to be discriminatory, while theothers lose their effectiveness when dealing with civil ethics, which is nota personal ethics, but one of social moral consciousness. It is neverthelessstill true thatwhen moral obligations are in question themotive of the actionmust be internal (feeling/knowing oneself to be obliged), which does notoccur in the legal sphere: though the law is able to assume expressive andcommunicative functions, apart from its protective and instrumentalaspects,11 what is quite undeniably true is that ignorance of a law does notrelease one from its compliance.In the wake of Kantianism, Habermas understands that the differencesbetween morality and law are procedural, in the following sense (Habermas,1992, pp. 555 ff.): (1) legal procedures are bound to institutional criteria,while morality demands reconstructing the stance taken and discursively

verifying if the procedure was properly followed; (2) the moral proceduredisplays cognitive insufficiencies, because itdoes not guarantee infallibility,one sole interpretation, nor the result being obtained in any particular time;(3) it also involves motivational shortcomings, because moral reflectiondemands questioning what is taken as being evident in everyday life, andabove all because the modern World's separation of normative ethicalquestions from questions of the good life ensured by the religious hope ofsalvation means that "the most powerful motivation for following moralcommandments disappears". This iswhy it is necessary "to complement

morality, which has weak motivating power, with coercive and positivelaw" (Habermas, 1996, pp. 50 ff.). An ethics of responsibility meansprotecting themost fundamental rights with positive laws and not merelyleaving them to people's goodwill (Apel, 1988, p. 103 ff).Itwould thus appear that thewheel has come full circle in the formalisttradition and that what Kant saw as being the 'superiority' of morality

10I.Kant, Metaphysik der Sitten, VI; Die Religion innerhalb der Grenzen der blossenVernunft, VI. See also my preliminary study to Kant (Cortina, 1989, pp. XV-XCI).

nNew interpretations of law even attempt to extend their functions and give this, apartfrom the protective and instrumental function, expressive and communicative functions,as shown by Van der Burg and Brom in this issue.

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(internal motivation being essential) has now become its 'inferiority':external coercion seems safer to ensure compliance with certain rules; anethics of responsibility, or of overall co-responsibility, requires that "thegood should become reality" and for this reason it is said to demand legalguarantees.

Nevertheless, at least since the seventies, with the crises inpost-industrialsocieties, inwestern countries we are experiencing the need to recovermoral habits as something essential for securing humanity's future. Theinstitutions of democracy aswell as those of capitalism do not work withoutcreating "habits of reciprocity, moral obligations, responsibility towardsthe community and trust", because "contracts and economic rationalityprovide necessary, but not sufficient foundations for maintaining thestability and prosperity of post-industrial societies" (Fukuyama, 1995, p.11). Ajuridified society is powerless to sustain contracts and the economyis not able towork without the basis of a civic ethos, without the convictionthat 'pacta sunt servanda'. An ethics of responsibility requires thecomplement of positive law, but a responsible legal system requires acitizens' ethics, without which legal and economic contracts would lackany foundation. However the solution does not consist in duplicatinglegislations and multiplying moral laws along with legal laws, but inrecovering the awareness thatwe act from values, strengthening the "habitsof the heart" of individuals, organisations and peoples, remembering the"sources of the modern Self, creating projects of integrity and self

fulfilment.12Civil ethics is thus a 'basic essential', which contains, at least verbally,the following elements (Cortina, 1997, 1999).(1) An unrenounceable moral principle, the Kantian principle of the"non-instrumentalisation of people" who, through being ends in

themselves, have dignity, and thus cannot be treated only as means.This principle is the basis of modern civil ethics, which is expressedin any ethical code and documents from diverse social spheres(biotechnologies, companies, professions etc.), as well as inDeclarations of Human Rights. The moral obligation to obey thisprinciple is obviously rooted in the recognition of people 's identicalautonomy, which becomes the core element of this kind of ethics.This does not mean that civil ethics is identified with a particularcomprehensive doctrine of good, but that it constitutes a moralconception with this content.

12See Beelah et al. 1985; Taylor, 1989; Gewirth, 1998

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(2) Three values guiding civil habits: freedom, equality and integrity.Freedom is understood in at least a threefold sense: (a) as participation, in the line of the Aristotelian-Republican tradition, aparticipation which should be extended beyond the political sphereto all activities involving people in civil society; (b) as independence,in the sense of the "freedom of the modern", as this is specified by

Benjamin Constant; and (c) as autonomy, as the capacity to direct one'sown life along with those whose existence and points of view aresignificant for one.

Equality, on the other hand, is understood as (a) equality indignity,which includes the requirements of the same respect, with no racialor sex discrimination etc.; (b) basic material and cultural equality;(c) equality for the law, (d) equality of opportunities', (e) absence ofa 'dominant good' inWalzer's sense.13

Integrity as a necessary value and habit in the different spheres ofcivil and political society (Musschenga, 1999).(3) A moral approach to mutual relations, which involves at least

tolerance, but which can extend to active respect. From the noninstrumentalisation principle it takes on meaning not only to toleratebut to actively respect others' ethics of maxima, on condition that theyin turn respect minimum civil ethics.

(4) A procedure for rationally solving conflicts and disagreements aboutrules satisfying reciprocal expectations of action, which is the dialoguein rational conditions between those involved by these rules.14There iswidespread agreement as to these contents inWestern societiesand both ethical agreements and codes and juridical legislations aspire tobe guided by these. The major task consists in gradually qualifying theircontents in each of the spheres of social life and elucidating if livingaccording to them can be demanded from a dual standpoint:(1) From the society at least verbally professing this civil ethics. Can itdemand its compliance, while precisely the greatest differencebetween morality and law consists in recognising that moral

obligation can only be self-obligation, while the law can be obeyedfor 'pathological' reasons?

13"I call a good dominant if the individuals who have it, because they have it, cancommand a wide range of other goods" (Walzer, 1983, p. 10).

14I discuss the problem of the justification and the nature of violence inHasta unpueblo de demonios, 1998, XII.

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(2) From thephilosophical theories which give civil ethics regulatory force.Because if it all simply comes down to western societies havinggradually been reaching ethical coincidences over history, their citizenscan only be asked to value these positively within a culture of the'ethically correct'. Only if reason has gradually been configuring thesenorms historically is there any meaning in talking of compulsiveness.

4. Sources of Moral Obligation. The Philosophical Level

Indeed, should civil ethics have regulatory force for allmembers of society,itmust refer to a rational core, which does not bind only hypotheticallyand is not merely the result of a convention, and whose reconstruction isundoubtedly a task for moral philosophy. At the present time there aredifferent candidates for this role, three of these in theory seeming to havethe greatest chance of success: the hermeneutic-coherential model, whichuses the contractual legal model as a resource for giving binding force tomoral contents; the social-historical and pragmatist model, resorted to bya wide sector of communitarianism; and the pragmatic transcendental

model (Apel) or the pragmatic universal model (Habermas), whichreconstructs a dialogic social paradigm, but which in its present'procedural' state is insufficient to support a civil ethics and needs

complementing with the values and virtues included in the rationalprocedures. We will look at these briefly now, summing up the points dealtwith in greater depth in other works.

( 1) The hermeneutic-coherential model, proper to political constructivism,seeks 'better understanding' of the 'faktum' of the political cultureof societies with reasonable pluralism, by means of concepts, such asmoral person, well-ordered society and original position {hermeneuticmoment), and from this understanding attempts to construct theprinciples of justice using the procedure of reflective equilibrium(coherential moment) (Hoerster, 1977, pp. 57?76). With regard to sucha procedure one should say thatwaiving moral constructivism can haveits political advantages, but itmakes it impossible to support moralobligation: only citizens who defacto have a sense of the reasonable?but no others?will be willing to assume 'political' virtues, such astolerance, mutual respect, civility, the sense of equity or equitablesocial co-operation. Only a critical hermeneutics has the capacity todraw out a rational criterion, able to support the moral obligationproper to a civil ethics.

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CIVIL ETHICS AND THE VALIDITY OF LAW 51Furthermore, the contractual paradigm, which acts as a resourcefor 'understanding' political culture better, is, in its different versions,

amodel of private law, conveyed to the political sphere, inwhichthe figure of the Leviathan can be designed (Hobbes), becomedemocratised as 'free and equal citizens' (Rawls), or attempt to preparerules 'by agreement' (Gauthier), but which lacks the binding forceneeded to support the type of moral obligation which is required by acivil ethic.

Self-interest as a basis for the contract {Leviathan) or that selfinterest, tempered by 'reasonableness', is powerless to oblige those

who wish to have a share in the benefits of the State without payingthe relevant dues. Understanding the democratic political culture,which has historically been attained, and the sense of justice imbuedin this does not morally bind those who do not feel morally involved.The figure of thefree rider is inevitable, but so is that of the citizenwho is aware that he or she can be obliged to comply with legalmandates, but who does not feel affected by moral obligations.

(2) In the communitarian context there is amarked tendency to adopt, asa research method, a social-historical method or one of 'criticalinterpretation' (Walzer, 1987), a pragmatic method (Etzioni, 1996)or a political one (Barber, 1984), instead of 'coming out of the cavern'to contemplate the world of ideas. But this option reduces the binding

force for those who do not feel at home in the cavern. Why shouldthey take up 'values' such as the commitment to democracy(understood as being a value), the commitment to the constitution,loyalty, respect for difference, to dialogues open to society as awholeand the search for ameans to reconcile individuals who have harmedthe community? (Etzioni, 1996/7).On the other hand, within the communitarian model of society oneshould distinguish, insofar as the matter now being dealt with isconcerned, between a 'pre-modern' communitarianism, which wouldrenounce Modernity, and thus involve serious difficulties for givinga rational foundation to the obligation of complying with the ethicalprinciple of Non -Manipulation, and amodern communitarianism, likethe one defended, amongst others, by authors such as Benjamin BarberorAmitai Etzioni who, in spite of their differences, accept the defenceof autonomy as being something that cannot be renounced. Barberunderstands that autonomy can only be won in the community,whether this is through a strong democracy, or by bolstering civilsociety (Barber, 1984, 1992) and Etzioni states that, according tocommunitarian thought, a good society is one which achieves balance

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52 ADELA CORTINAbetween a traditional element and amodern one: between social orderand autonomy. This iswhy a new Golden Rule should be expressed:"respect and defend the moral order of society in the same way as youwould make society respect and defend your own autonomy" (Etzioni,1996, p. XVIII).

Nevertheless, communitarian thought comes up against seriousdifficulties when attempting to justify the core of "Moralit?t", theclaim to universality contained in civil ethics. This is because not onlydo the ethical contents thatwe have described form in certain countriespart ofthat society's ethos, but those values and principle claim to beuniversally valid, going beyond the particular contexts of action. Thisundoubtedly leaves the door open to cosmopolitanism (Beiner, 1995;Cohen, 1996).

(3) The transcendental or universal model of pragmatics is qualified tosupport the obligation side of civil ethics since it reconstructs the sinequa non conditions of communicative action and thus reaches the levelof rational demands. On the other hand, its reconstruction, proper toa critical hermeneutics, allows the dialogic nature of reason to berecognised, through the category of reciprocal recognition, towhichany being endowed with communicative competence binds himself,not only to co-ordinate his actions communicatively, but also toelucidate if a rule of conduct is effective or valid (Conill and Cortina,1999). The model of contract, proper to private law, has been replaced

by that of reciprocal acknowledgement, which makes dialogue, morethan a value, an essential means for solving conflicts fairly. Thepolitical model justified from this critical hermeneutics is obviouslythat of a political community, which justifies its legal norms frommoral, ethical and pragmatic standpoints. The fact that the politicalmodel makes use of moral reasoning is precisely why it needs to bebased on a civil ethics, which in turn has claims to universality(Habermas, 1993).

(4) Nevertheless, through its claim to be 'axiologically neutral' and torestrict itself to rational procedures for justification of norms, the ethicsof discourse has fallen into a concise proceduralism whichruns the

risk of losing the moral dimensions which give itmotivating force,and not only rational compulsoriness. For this reason it is importantto draw out the axiological and aretaic elements implicit in theprocedures, if ethics of discourse wishes not only to provide

foundations for civil ethics, but give motivations formoral obligation.We could thus infer the following axiological and aretaic elements aspresuppositions of moral procedures (Cortina, 1990, 1992):

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(i)Freedom, understood in a threefold sense: (a) as the autonomy ofcompetent speakers, which is not only pragmatic (capacity toformulate claims to validity and to accept or reject these), but alsomoral (capacity to be guided by universalisable interests); (b) as

participation in the different spheres in which decisions are madeaffecting a person: acknowledging that a competent speaker is apersonand should be taken into account in ,any decisions which affect thesame; (c) freedom understood as independence, in the sense ofprotecting first generation rights. If these rights are not safeguardedlanguage's 'personal pronouns' cannot survive or participate inlinguistic discourses (Habermas, 1986).(ii) The imperative o? no reciprocal instrumentalisation, as a necessarycondition to become aware of which norms are right,(iii) Equality of conditions in the dialogue, which requires raising thematerial and cultural level of virtual and real interlocutors, sinceotherwise it is impossible for there to be any claim to approach symmetry(a requirement which goes beyond the 'second generation rights'),(iv) Solidarity with social networks which make survival of 'personalpronouns' possible.(v) Recognition of the value of belonging to a linguistic communitybut, in turn, to a universal community of speaking beings.

From this standpoint, one can demand, but not impose by means of externalcoercion, the contents of a civil ethics, which has its base not in a factualconsensus, but in the rational requirement of reciprocal recognition. Suchcontents can be demanded from public opinion and civil society, and haveto direct valid law, along with ethical and pragmatic reasons.

ReferencesAlexy, R., Theorie der juristischen Argumentation. Frankfurt: Suhrkamp, 1991.2Alexy, R., Begriff und Geltung des Rechts. Freiburg: M?nchen, 1992.Apel, K.-O., Transformation der Philosophie. Frankfurt: Suhrkamp, 1973.Apel, K.-O., Diskurs und Verantwortung. Frankfurt: Suhrkamp, 1988.Apel, K.-O., Globalization and theNeed for Universal Ethics. Manuscript.Barber, B., Strong Democracy. Berkeley/Los Angeles/London: University of California

Press, 1984.Barber, B., An Aristocracy of Everyone. New York/Oxford: Oxford University Press,

1992.Beiner, R., Introduction. Why Citizenship Constitutes a Theoretical Problem in the Last

Decade of the Twentieth Century?, in R. Beiner (ed.), Theorizing Citizenship. NewYork: State of New York Press, 1995, pp. 1-28.

8/3/2019 Hobbes1

17/18

54 ADELA CORTINABellah, R.N. et al., Habits of theHeart. Berkeley: University of California Press, 1985.Cohen, J. (ed.), For Love of Country. Debating the Limits of Patriotism. Boston: Beacon

Press, 1996.Conill, J. and A. Cortina, Pragm?tica Trascendental, in M. Dascal (ed.), Pragm?tica ILMadrid: Trotta, 1999.

Cortina, A., Etica m?nima. Madrid: Tecnos, 1986.Cortina, A., Estudio preliminar a I.Kant, La Metaf?sica de las Costumbres. Madrid: Tecnos,

1989.Cortina, A., Etica sin moral. Madrid: Tecnos, 1990.Cortina, A., Diskursethik und Menschenrechte, Archiv fur Rechts- und Sozialphilosophie

76 (1990), pp. 37-^9.Cortina, A., Etica aplicada y democracia radical. Madrid: Tecnos, 1993.Cortina, A., Ciudadanos del mundo. Madrid: Alianza, 1997.Cortina, A., L'?thique appliqu?e comme herm?neutique critique des activit?s humaines,

in L.K. Sosoe (ed.), La vie des normes & l'esprit des lois. Quebec/Paris: Harmattan,1998, pp. 151-168.

Cortina, A., Hasta un pueblo de demonios. Madrid: Taurus, 1998.Cortina, A., Ciudadanos como protagonistas. Barcelona: C?rculo de Lectores/Galaxia

Gutenberg, 1999.Cortina A., Ethik ohne Moral: Grenzen einer postkantischen Prinzipienethik, in K.-O.

Apel und M. Kettner (Hg. ), Zur Anwendung der Diskursethik in Politik, Recht undWissenschaft. Frankfurt: Suhrkamp, 1992, pp. 278.

Durkheim, E., Professional Ethics and Civic Morals. London: Routledge & Kegan PaulLtd., 1957.

Dworkin R., Liberal Community, California Law Review 11 (1989), pp. 479-509.Edel, A., E. Flower and F.W. O'Connor, Critique of Applied Ethics. Philadelphia: Temple

University Press, 1994.Etzioni, A., The Community of Communities, The Responsive Community 1 (1996/97),

pp. 21-32.Etzioni, A., The New Golden Rule. New York: Basic Books, 1996.Fukuyama, F., Trust. New York: The Free Press, 1995.Gewirth, A., Self-Fulfillment. Princeton: Princeton University Press, 1998.Habermas, J., Gerechtigkeit und Solidarit?t, H. Joas and G. Nunner-Winkler, Zur

Bestimmung der Moral. Frankfurt: Suhrkamp, 1986.Habermas, J., Faktizit?t und Geltung. Frankfurt: Suhrkamp, 1992.Habermas, J., On the Pragmatic, the Ethical, and the Moral Employments of Practical Rea

son, inJustification and Application. Cambridge/London: The MIT Press, 1993, pp. 1-18.Habermas, J., Die Einbeziehung des Anderen. Frankfurt: Suhrkamp, 1996.Hegel, G.W.F., Grundlinien der Philosophie des Rechts. Hamburg: Felix Meiner, 1955.Hoerster, N., John Rawls' Koh?renztheorie der Normenbegr?ndung, in idem (Hg.), ?ber

John Rawls Theorie der Gerechtigkeit. Frankfurt: Suhrkamp, 1977, pp. 57?76.Huntington, S.P., The Clash of Civilizations and the Remaking of World Order. New

York: Simon & Schuster, 1996.Kant, I,Die Religion innerhalb der Grenzen der blossen Vernunft, Kants Werke. Berlin:

Walter de Gruyter, VI, pp. 1-202.Kant, L,Metaphysik der Sitten, Kants Werke. Berlin, Walter de Gruyter, VI, pp. 203-494.Macedo, S., Liberal Civic Education and Religious Fundamentalism: The Case of God v.

John Rawls, Ethics 105 (1995), pp. 468-496.

8/3/2019 Hobbes1

18/18

CIVIL ETHICSAND THE VALIDITY OF LAW 55Musschenga, A.W., Are Personal and Moral Integrity Goals of Civic Education?, Manu

script, 1999.Nino, C.S., Etica y derechos humanos. Buenos Aires/Barcelona/M?xico: Paidos, 1984.Peces, G., Etica, poder y derecho. Madrid: Centro de Estudios Constitucionales, 1995.Philonenko, A., Th?orie et Praxis dans la pens?e morale et politique de Kant et de Fichte

en 1793. Paris: P.U.F., 1976.Rawls, J., Political Liberalism. New York: Columbia University Press, 1993.Rawls, J., The Law of Peoples, in On Human Rights. The Oxford Amnesty Lectures. Ox

ford: Basic Books, 1993.Sosoe, L.K. (dir.), La vie des normes & L'esprit des lois. Quebec/Paris: Harmattan, 1998.Taylor, Ch., Sources of the Self. Cambridge: Harvard University Press, 1989.

Walzer, M., Spheres of Justice. Oxford: Blackwell, 1983.Walzer, M., Interpretation and Social Criticism. Cambridge: Harvard University Press,

1987.M. Walzer, Thick and Thin. Notre Dame/London: University of Notre Dame Press, 1994.

Catedr?tica de Etica y Filosof?a Pol?ticaUniversidad de ValenciaSpain