Habermas

Recasting Democratic Theory, 1984–1996 195

BFN thus records a very personal process of coming to terms with
his intellectual past but also attempts to derive conclusions of gen-
eral theoretical significance.
Habermas’s key statement was that law’s legitimacy depends
neither on its grammatical form nor on an a priori moral content.
This enables us to turn from one error in German legal thought to
another: from the formalist error to the error of moral a priorism.
Proceduralism was Habermas’s effort to eschew these two primary
defects of twentieth-century German legal thought. In contextual
terms, Habermas’s procedural turn against “concreteness” was a
defensive maneuver to protect his radical reform agenda from threats
on multiple fronts in German politics between the mid-1980s and
the mid-1990s. But his procedural turn also depends to a significant
extent on his acquisition of terms of art internal to his system, which
he introduced for the first time in his writings on discourse ethics
in the early 1980s.^95
The key conceptual distinction he introduced was between
“moral” and “ethical” discourses. Moral discourses differ from ethi-
cal discourses in that the former are universal in scope, whereas the
latter are particular. As one philosopher explained:

Ethical discourses are concerned with the life-history of an indi-

vidual or a group. They seek to answer the question, “What is good

for me?”...

[Moral discourses by contrast]... are concerned with questions

of justice and right, not with good and value.... [They] are not

particularistic – limited to a particular historical group. They are

genuinely universal and concern the equal respect and rights of all

human beings.^96

While this philosopher finds unconvincing Habermas’s claim
that his procedural model of democracy does not presuppose any
“substantial-ethical” commitment, he apprehended the reasons for
Habermas’s insistence on the distinction between moral and ethical
discourses: “For if discourse theory were dependent on a substan-
tive ethos, then this would mean it could never achieve the type

(^95) See Habermas, Erläuterungen zur Diskursethik (Frankfurt/Main: Suhrkamp,
1991 ).
(^96) Richard Bernstein, “The Retrieval of the Democratic Ethos,” Cardozo Law
Review, 17:4–5 (1996), 1139–40.