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Abstract

Discourse ethics (DE) articulates a perspective on morality based on communicative rationality. It holds it to be possible to justify universal moral norms on the basis of rational argumentation in practical discourse, if and only if a set of formal criteria are met. A central criterion is that a norm is accepted by all participants in discourse without any form of coercion. In bioethics, above all, its focus on inclusion, participation and democracy is appreciated, as well as the fact that it allows for truth-ﬁnding in pluralistic settings. The fact that DE is idealistic with regard to the possibility to attain impartial and universal norms on the basis of an “ideal speech situation” is both seen as a strength, as it is argued to set an inspiring standard for present-day bioethical enquiry, and as a weakness, because its high-demanding criteria are untenable in practice. Other aspects that are mentioned as weak points of DE are its proceduralism, its cognitivism, its universalism, and the fact that concrete guidelines for deliberation are not provided. Nevertheless, DE is relevant for bioethics, as it focuses on the intersubjective nature of moral understanding and provides a standard for organizing practices of moral reasoning in a democratic way.

Introduction

Discourse ethics (DE) is most known in the version developed by Jurgen Habermas. Generally, it argues that a norm is right if and only if it is accepted by communicative agents under ideal conditions of justiﬁcation. Habermas puts his trust in the rational competences of interlocutors; in a dialogue freed from the restraints of interests, power relations and other disturbing factors, they should be able to recognize the validity of moral claims in the face of criticism, as to assess “the worthiness of the norm for intersubjective recognition.” A central condition is that a norm is accepted jointly by each individual without any form of coercion.

In bioethics, DE is seen as a valuable framework for present-day ethical enquiry in pluralist societies and as an inspiration for concrete methods of moral deliberation, for instance in clinical ethics support. Furthermore, because of its focus on the democratic participation of stakeholders in discourse it is popular in the context of studies focusing on patient participation, the inclusion of minorities in policymaking, and empowerment.

History And Development

The formerly Frankfurt-based philosophers Jurgen Habermas and Karl-Otto Apel are considered to be the founding fathers of modern discourse ethics, which took shape in the seventies and eighties of the twentieth century. However, the idea of a DE was already brought up by G. H. Mead in the early twentieth century, who was inspired by C.S. Peirce’s pragmatic semiotics, in which communication is the main instrument in collective processes of truth-ﬁnding. Since Apel and Habermas, DE has been pursued by a number of philosophers. For purposes of focus and clarity, but also because he is primarily referred to in bioethical elaborations on DE, this lemma will primarily deal with Habermas’s version of DE.

Like Mead, both Apel and Habermas are thoroughly inﬂuenced by pragmatism. Apel investigates the so-called transcendental-pragmatic conditions of communication. As a pragmatist’s answer to Kant’s system of pure reason, he maintains that anyone who takes part in an argument implicitly acknowledges all possible claims that can be made, as long if these claims can be justiﬁed by rational arguments (Apel 1980, p. 277). This idea forms the basis of Habermas’ discourse principle (which is also discussed below), which states that “only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse” (Habermas 1990, p. 66). In developing his version of DE, Habermas combines his consensus theory of truth (1973) with his theory of communicative action (1981). He describes the main tenets of DE in Moral Consciousness and Communicative Action (1983). The practical applications of his DE are elaborated in Between Facts and Norms (1992), in which Habermas focuses on democracy and legislation.

In his account of DE, Habermas combines Peirce’s pragmatism and Kant’s deontology and universalism. Like Peirce, he maintains that all thought takes place in language. Like Kant, Habermas presupposes the universal, unconditional and obligatory nature of morality and argues that justifying the validity of moral norms can be done in a manner analogous to the justiﬁcation of facts. Similar to Kant, Habermas links morality with impartial reason. But whereas for Kant morality is individualistic, as each individual, guided by the categorical imperative, can independently come to valid conclusions with regard to our moral obligations, Habermas claims impartiality can only come about by engaging in a dialogue with all those affected by an issue being present, under the condition that this dialogue is freed from the restraints of interests and power relations. Habermas therefore articulates the ideal of a herrschafsfreie Diskussion, in which consensus-oriented communicative action takes place, freed from the limitations of power relations and of strategic actions out of (self-)interest. Eventually, he characterizes this ideal dialogical state as a regulative ideal, rather than something that is truly and fully attainable. Yet, he also claims that as a regulative ideal, it is actually presupposed in communicative practice.

With concern to this last element, especially in secondary literature, there has been an extensive debate on whether either Michel Foucault’s or Habermas’ account of truth, power and discourse is more convincing and/or desired. Foucault elaborates on the immersion of power in any practical discourse. He states that there is no place outside power relations in society, and that discourses enable, control, exclude and include human identities, action and behavior. Knowledge – including moral knowledge – is therefore irrevocably conditioned and even produced by power. Habermas, on the other hand, seeks to free discourse from power relations and to realize freedom, truth and empowerment in a dialogue based on communicative action – a dialogue freed from (personal) interests.

In 1992, a comprehensive volume on DE and communicative ethics appeared: The Communicative Ethics Controversy (Seyla Benhabib and Fred Dalmeyr (ed.)). Different proponents of communicative ethics and DE put forward their positions (among whom is Habermas) within the major debates and controversies around these theories. This includes the criticism of care ethicists who argue that Habermas’s universalization of rationality overlooks relevant particularities of concrete situations and persons. Other criticism pertains to the fact that Habermas’ universalism assumes a homogeneous community of autonomous agents, hence overlooking fundamental differences between people and the fact that, especially nowadays, dialogues take place in pluralistic and multicultural settings. Furthermore, not everyone considers Habermas’ universality principle to be strictly necessary for a discourse ethics. In the same volume, Habermas responds that his universalism does not imply an abstract take on morality, and that his approach to DE is inherently relational and interpersonal, as it always applies to concrete and speciﬁc situations. His universalism applies to the procedures and conditions of communication rather than to ethical content.

Other criticism of DE pertains to its cognitivism and strong orientation toward consensus. Opponents refer to sensitive issues on which ﬁnding consensus is extremely hard, if not impossible, due to differences in stakes and perspectives that cannot – and maybe should not – be bridged. Furthermore, it hinges on the capacity of persons for dialogue and rational evaluation of arguments, and the ability to overcome their personal and emotional involvement, which cannot (and should not) always be expected in concrete situations, as emotions are essential for moral judgment. Rather than being discarded, they should be taken into account in moral discourse (Molewijk et al. 2011).

Conceptual Clarification

DE seeks to answer two questions: How are moral norms established? And: What constitutes the validity of a norm? The answers to these questions are contained in three major postulates of DE: (1) that similar to truth claims, normative claims have cognitive meaning, i.e., it is possible to solve moral problems in a rational and cognitive way; (2) that the justiﬁcation of moral norms requires practical intersubjective discourse; and (3) that certain formal criteria of this discourse are to be met in order to overcome particularity and to achieve impartiality, so as to come to the universality of a norm.

Habermas’ DE articulates a perspective on morality based on communicative rationality. Habermas maintains that the rightness of a moral norm does not so much consist in its reference to an independently existing world “out there.” Rather, it consists in intersubjective recognition and agreement as the outcome of a practical discourse between stakeholders. Although Habermas follows Kant’s rationalism and appeal to universality, he refutes Kant’s moral solipsism, and therefore the Kantian categorical imperative “Act only according to that maxim by which you can at the same time will that it should become a universal law.” According to Habermas, norms are not established and validated on the basis of individual reason, but moral reasoning takes place within the context of a communicative community. The foundation of moral norms is located in actual dialogue and communication.

Habermas describes his position on morality and justiﬁcation as it is articulated in his DE as “epistemic proceduralism.” The procedure is proceduralist because what is considered to be right emerges from a democratic process, the necessary conditions of which are described by DE; it is epistemic insofar as that process results in collective (moral) truthﬁnding.

DE is based on two principles: the discourse principle (D) and the universalization principle (U). The discourse principle (D) deals with the validity criterion of norms:

only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse. (Habermas 1990, p. 66)

Thus, norms are justiﬁed discursively, which not merely requires that the interlocutors exchange perspectives with one another, but that consensus is found, meaning that all participants can reasonably agree with a norm. Dialogue and mutual understanding thus are essential requirements to establish moral truth. However, this dialogue is not without constraints: Habermas insists on the principle of impartiality. Impartiality is necessary if a norm is to be legitimate. The principle of universalization determines those conditions that must be met if the claim of legitimacy – the claim advanced by moral commands and norms – is really justiﬁed. The principle of universalization (U) is stated as follows:

A [moral norm] is valid just in case the foreseeable consequences and side-effects of its general observance for the interests and value-orientations of each individual could be jointly accepted by all concerned without coercion. (Habermas 1998, p. 42).

(U) is at the same time a principle for argumentation, which comes with certain implications:

The equal participation of all stakeholders
Unlimitedness, i.e., the fundamental openness concerning time and persons
Freedom from constraint, i.e., the freedom, in principle, of discourse from interests and power relations
Seriousness, i.e., people should not be misled or deceived; participants speak faithfully and authentically (Habermas 1973, p. 255.

If these conditions are all met, one would have an ideal speech situation (herrschafsfreie Diskussion).

However, in practice, these conditions can never be fully realized. Nonetheless, the mere idea(l) of consensus under these strict conditions at least encourages interlocutors engaged in a search for normative rightness to strive to meet these conditions to a reasonable degree. An ideal speech situation hence remains a regulative ideal. This implies that universality and therefore true validity in the way that Habermas described can never be fully reached. This entails that moral claims are always only partially justiﬁed rather than conclusively convincing for all.

Ethical Dimension

DE is regarded to be useful to bioethics in various respects. First of all, its value is recognized as a framework of ethical inquiry suitable for present-day pluralist society, as it does not seek to claim certain moral positions. As a meta-ethical position, DE focuses on the philosophical justiﬁcation of the procedural rules of moral discourse, rather than on speciﬁc norms. In this capacity, it is used as a “yardstick” to assess deliberation processes and the conditions under which morality emerges (section “DE and Ethical Pluralism”). Second, as DE deals with the rules and conditions of discourses on what is morally right, it is inspiring for methods of moral deliberation and of collective decision-making, in various settings, such as moral case deliberations in a clinical setting, and societal debates on bioethical issues in the public sphere (section “DE and Methods of Moral Deliberation”). Finally, because of its background in critical theory, DE is valued in studies concerning democracy and the participation and inclusion of all stakeholders in establishing norms, for instance with regard to good care, in decision making concerning treatment and care, and in policy making in healthcare institutions (section “DE and Democracy, Participation, and Inclusion”).

DE And Ethical Pluralism

DE is particularly attractive to contemporary bioethics because it combines universalism and pluralism. On the one hand, DE appeals to ideals of universality, impartiality and rationality; hence, it provides a foundation for substantial moral claims. On the other hand, DE rejects any transcendental foundations (Letztbegrundung) of moral knowledge. It recognizes the limitations of discourse without losing sight of an idea(l) worthy to strive for. This makes DE suitable for pluralistic “post-metaphysical” societies in which a single, shared foundation for moral truth can no longer be presupposed. As it is intersubjective and dialogical, it inherently allows for a plurality of perspectives.

A pragmatic discourse bioethics as an alternative for existing models of ethical inquiry is plead for by Elisabeth Cooke, as she deems the latter to be dogmatic and authoritarianist. According to Cooke, a pragmatic model of inquiry such as DE is a democratic, open-ended framework of ethical inquiry, which allows for the sensitivity to contexts and for the tolerance for differences. It provides us with a useful approach to the bioethical examination of norms and values, and of the way decisions are made. DE can therefore be an interdisciplinary, scientiﬁc, and purpose-driven pragmatic approach that can accommodate the difﬁculties that present-day bioethics faces, she concludes (Cooke 2003).

The fact that DE takes a meta-ethical stance is also welcomed by bioethicists: DE does not tell moral agents which moral norms are valid, what they ought to do and why. Rather, it deals with the rules and conditions of moral discourse, by which it seeks to offer a way of justifying moral arguments and argumentation. Therefore, DE can function as a framework to assess processes of deliberation, without being limited to speciﬁc normative stances. In this sense, DE can be thought of as a yardstick to measure the validity of the process of truth formation, even though we often fail to meet the standards set by DE (Gunson 2012).

On the other hand, DE is sometimes criticized as not being ethically neutral, as it clearly prescribes the procedure and conditions for moral discourse. This suggests that the procedural approach described by DE may not be as content-free as supposed, and therefore its universal applicability is questionable. Furthermore, the assumption of the universality of rationality is criticized: what counts as rationality may not be the same for everyone, or maybe only for some people, such as those living in Western, liberal democracies (Gunson 2012). Related to this criticism, it is argued that Habermas’s DE disregards lifeworlds by regarding values as something sociological and only norms as philosophical; only the latter should be taken into consideration in moral discourse. Unlike norms, however, values and preferences : cannot be separated from their contexts cq. lifeworlds, it is argued. This makes DE “extremely narrow” and it provides an “unrealistic view” on what actual discussions of conﬂicting life-ideals are about (Pekelharing 2002).

Finally, Habermas’s DE is criticized for focusing too much on universalizability in abstract terms, including “the generalized other,” thereby overlooking the fact that in discourse, we are actually always dealing with concrete, embodied, and embedded individuals (Benhabib and Dalmeyr 1990).

DE And Methods Of Moral Deliberation

DE has been an inspiration for methodological frameworks for bioethical deliberation as well as for philosophical reﬂection on the conditions that need to be met in practical discourses. Remarkably, the methods of deliberation that are inspired by DE usually do not adopt its strict formalist rules, nor do they focus solely on consensus in the way that DE prescribes. This may be related to the strictness of the conditions that need to be met in order to accept a norm in DE, making it too formalistic and too demanding to solve moral problems and establish norms in everyday bioethical practice. In discussing the value of DE for bioethics, Cooke warns that using DE may result in a “minimal ethics,” because only those ethical judgments on which we could reach consensus in ideal speech situations and only universalizable claims have the potential to become norms (Cooke 2003). But although the formal, procedural and theoretical character of DE is found difﬁcult to translate to concrete methods of deliberation in bioethics, it is endorsed as a regulative ideal in ethical inquiry, as well as a means to reﬂect on ourselves as moral agents.

A good example of a method of moral deliberation that shares certain presuppositions with DE is moral case deliberation, a dialogical way of ethics support developed in the Netherlands and becoming ever more used elsewhere in Europe. Moral case deliberation departs from the idea that health care professionals should develop the answers to their moral questions in interaction with each other. It entails a joint process of investigation of values and norms, facilitated by an ethicist. The facilitator helps the participants to focus on their concrete moral experiences, while methodically structuring the deliberation process and looking after the optimal conditions for the dialogue, which include equality among participants, the postponement of prejudices, and active listening. Rather than merely focusing on the rationality of arguments, moral case deliberation also seeks to create a space for exploring the source of emotions, like frustration or (moral) distress, in order to ﬁnd out what is morally important to the stakeholders (Molewijk et al. 2008).

Whereas moral case deliberation usually focuses on concrete cases in clinical settings, DE is also used as a basis for methods of deliberation on more encompassing themes in the public domain. In a 2012 report on emerging technologies, the Nufﬁeld Council of Bioethics proposes a “public discourse ethics” with regard to biotechnology governance. The council argues that this is, or should be, a matter of public, i.e., nonprivate and nonpartial, ethics: “Insofar as there is a public interest, normative propositions can be made about emerging biotechnologies that are guided by the good of the public collectively” (Moran 2012). This public discourse ethics could achieve an unbiased and open engagement between relevant normative positions, mediated through different interpretive frames. However, the authors formulate the criteria of this public discourse ethics in terms of virtues (such as openness, inclusion, caution, and accountability) rather than strict deliberation criteria and decision rules, as they see the rules of DE as untenable with regard to discussing emerging biotechnologies on a wide public scale (Moran 2012).

DE And Democracy, Participation, And Inclusion

DE’s emphasis on dialogue, inclusion of stakeholders, and consensus reﬂects Habermas’ position as a second-generation scholar of the Frankfurt School, which critically analyzed society, ideologies, and authorities, and promoted equality, democracy, and empowerment. In line with these tenets of Habermas’ work, an important application of DE in bioethics concerns ethical issues around patient participation and empowerment, the use of coercion in mental health care, and animal rights.

Prilleltensky and Rossiter, for instance, argue that “good health care” should not be deﬁned by experts but should be based on a public process. In order to develop a participatory framework that is sensitive to caring relationships and that acknowledges the intersubjective character of health care, they turn to DE: “Discourse ethics provides an alternative to the problem of harm done through unchecked expertise by subjecting norms to a process of public consensus building.” Nevertheless, they mention that putting in practice their theoretical framework based on DE turned out to be fraught with obstacles and difﬁculties, which demonstrates, they conclude, how difﬁcult establishing ideal speech really is (Prilleltensky et al. 1996).

In “Prevention of Unethical Action in Nursing Homes,” Solum, Slettebö and Hauge apply discourse ethics to nursing ethics. With unethical action, they primarily mean actions that are coercive and harmful to patients. Taking recourse to DE, they argue that “practical discourse is valid only when it ensures that all parties involved in a case can participate in the dialogue to reach consensus.” This means that health care professionals should not make decisions if all parties involved have not been informed or given the right to form an opinion. When speciﬁc parties involved cannot participate in a conversation about decisions that concern them, which is often the case in nursing homes, those who are able to participate should take care of their interests by representing them correctly. This places a great responsibility on caregivers to learn and hear what the patients say (Solum et al. 2008).

In “The Recovery Model: Discourse Ethics and the Retrieval of the Self” (2008), Fardella uses DE to reﬂect on the so-called recovery model in mental health reform, in particular focusing on how individuals dealing with mental health challenges should be involved in the care they receive. The recovery approach in mental health care argues that empowerment and selfdetermination are important to recovery, including having both self-control and control over one’s situation and recovery process. This includes participating in decision-making processes within a health care program, as well as (social) inclusion. Fardella concludes that, through the use of DE in the recovery approach, “clients are recognized as having a point of view worthy of being listened to [which] may in itself foster a therapeutic recovery by the client of her self-respect. In this way, the inter-subjective and self-determining potential of the client, at even the earliest stages of her recovery, is recognized and encouraged.”

In the context of long-term and residential care, DE is appreciated with regard to the participation of clients in management issues and decision-making processes, so as to prevent harm by neglecting patient or client interests. The proceduralist aspects of DE, among which are the strict conditions that are to safeguard impartiality and democracy in discourse, are positively valued here as means to warrant client inclusion and participation, based on ﬁndings that in practice there are many factors that might obstruct this. Abma and Baur, for instance, investigate the functioning of resident councils in the Netherlands, which are a (legally required) means to enhance the democratic participation of older people living in residential care homes. Their study shows that both managers and resident councils are not satisﬁed with council participation, and describe it as ineffective. This is mostly due to asymmetric relations, hierarchies, and money issues. Therefore, attention should be devoted to creating new forms of democratic participation, central to which is dialogical interaction between residents and professionals. In the view of Abma and Baur, Habermas’ ideals of herrschaftsfreie Kommunikation and his concept of communicative action can offer guidance in developing these new forms (Baur and Abma 2011).

Nevertheless, some scholars are less positive about the capacity of DE to include all stakeholders. Nicolae Morar, for instance, criticizes DE because normativity is intrinsically connected to language. This means that only communicative actors can debate their validity claims, and that speechless beings will never be considered as participants in a discursive practice. In that sense, Morar argues, non-humans only have a quasi-moral status, leaving both non-human animals and future generations as “a second class of moral objects” (Morar 2009).

Conclusion

DE regards moral rightness as the outcome of practical discourse under the conditions of speciﬁc rules and principles. In various domains of bioethics, DE has clear impact. It is regarded to be valuable for assessing and creating frameworks for ethical investigation, for moral deliberation in pluralistic settings, and for reﬂection on empowerment and participation issues. The high-demanding and formalistic nature of the conditions that need to be met in order to validate a moral truth claim, its claim to universalism, its cognitivism, and the fact that as a meta-ethical theory, DE does not provide concrete rules for moral deliberation, are mentioned as weak points by critics. However, notwithstanding its limitations, DE is a relevant perspective for bioethics, underlining the intersubjective nature of moral understanding and providing a valuable set of conditions for organizing practices of moral reasoning in a democratic way.

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