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2

The ontext of Moral Living and

Argumentation

The State of Civilization

Statements about the project of being-human-well, and about the possibility and necessity of moral argumentation, must begin by taking account of the state of being human which forms the context of those statements. The historical background against which they are made must also be considered. Since the eighteenth century the section of humanity to which we belong has referred to its present state as 'civilization'. Underlying this self-evaluation was an assumption about the broad trend of human development which we can no longer accept. Europeans regarded themselves as civilized in contrast to savages and primitive peoples who lived close to nature. They believed they could define themselves in terms of their distance from nature. This meant, in the first place, their distance from their own nature, but it also implied emanci­ pation from external nature, through controlling it.

The state of being 'civilized' was therefore distinguished from nature as a whole, and referred to a condition of human beings in which their humanity was thought to be enhanced, or even only achieved in the first place, through self-control and distancing. On the other hand, being civilized was also understood as just one step towards a humanity which was yet to be produced. Kant divided the development of humanity - a development through which human beings were to become truly human for the first time - into three stages: civilization, culture and morality. We no longer share the optimism of the Enlightenment, which enabled Kant to pose the question 'whether the human race is engaged in a constant

24 The Context of Moral Living and Argumentation

progression towards a better state'.! The shock of the last century, caused by the outbreak of a new barbarism in Europe, the horror that such a thing was possible among 'civilized peoples', has been too profound. Nevertheless, the state of humanity which we must take as our starting-point from an ethical standpoint must be referred to as a civilized state. But this state can no longer be described in terms of progress; it must be defined quite simply as a structure both of the internal organization of human beings and of their external circumstances. If this is done, it might also become clear that the danger of the new barbarism was inherent in this very organization of human existence.

Civilization has always been characterized by its analysts as a process, not a state - as when Max Weber speaks of a process of rationalization and Norbert Elias of the 'civilizing process'. This description is not inadmissible, provided it is understood, not as an account of human history in general, but as the line of devel­ opment followed by European people. It also has the advantage that a number of recent developments can be described, under the heading of technical civilization, as a continuation, a modification or a reversal of the civilizing process.

This book is concerned with an ethics of technical civilization. That implies that the meaning of the concept of being-human­ well must be elaborated against the background of the state of technical civilization, and that the necessary regulating mecha­ nisms which must be justified morally by ethical discourse arise from this state. An ethics in which a moral question is defined as one by which it is decided, for the individual, what kind of a human being he or she is, and for society, what kind of a society it is, posits the human being in a radical sense as an histori­ cal being. It is embedded in an historical anthropology. It is not an ethics in the universal sense, but an ethics of technical civilization.

When we speak today, in an ethical context, of entities such as body and soul, conscience, drives or, with Freud, of Ego, Id and Super-Ego, these are not historically invariable structures, but arise from a specific, historically conditioned attitude of the human being towards him- or herself. These organizational forms and structures of the human being could, in principle, differ between individuals and even be situation-dependent. But as they are mediated by processes of socialization and are constantly reinforced by interpersonal expectations and sanctions, they can be posited as the average constitution of the modern human being, and therefore of ourselves. Under the heading of the civilizing

The Context of Moral Living and Argumentation 25

process Norbert Elias has described the historical genesis of such structures.

The most important dimension of the civilizing process for us is the transfer of the mechanism of behaviour-regulation from with­ out to within. Norbert Elias shows that the repression of spon­ taneous behaviour, of passions and desires which originally - that is, prior to the modern age - was applied by external obstacles, authorities and force, is effected in modern people by an internal agency. The habituation to self-control was originally an attribute of people of higher social strata, especially the courtier. Today it is the factor which makes the modern human being calculable and unobtrusive. The repression of drives is so deep-seated that they are no longer able to develop into passions and become conscious. This affect-control, which is almost automatic and thus is not a moral attainment, operates in two directions. On the one hand it prevents strong desires and wishes from arising, and on the other it impedes receptivity to strong stimuli, and susceptibility to powerful feelings and impressions. This blocking of affects and stimuli has been inculcated since the eighteenth century, when it was directed primarily - in a way which is hardly comprehensible today - against imagination. Even at the beginning of that century imagination had been regarded as a receptivity to images, a capacity for picturing something, and thus as the faculty of sym­ pathy, or of compassion and empathy for others. The product of this twofold, habitual affect-control is what we encounter as bour­ geois emotional coolness, but also the objectivity which is charac­ teristic of modern people. To refer to such people as bourgeois or citizens is, however, anachronistic, as we are concerned, rather, with the modern transport user and professional person. This type of person - that is, ourselves - is distinguished by a very high degree of functional usefulness; mobility and flexibility, in addition to the traditional values of punctuality, discretion, reliability and willingness to perform, are further intensifications of this type. To the independence from drives and stimuli they add a severance from regional and family ties.

Now, one might think that this highly disciplined human being - which we are - would be entirely satisfactory from the ethical point of view, and indeed, such an individual seems hardly in need of ethics at all. For ethics earlier served primarily to disci­ pline the appetites, and to be moral meant to renounce their satisfaction in favour of higher principles. Reading old novels, dramas or educational books, one is surprised to see what moral exertion it cost to overcome the vices of unpunctuality and lazi-

26 The Context of Moral Living and Argumentation

ness. That is truly remarkable, in view of the ease with which the everyday demands of travel and work are met today. Neverthe­ less, this result of the human process of self-production - which has produced us - is not satisfactory. That has been shown by the outbreak of barbarism in the last century, both in the form of a chaotic eruption of instinctual energies and in the unresisting availability of this modern professional, transport-using human type for state-organized crime. We shall have to come back to this later.

The second dimension of the civilizing process which is relevant to our discussion is called by Norbert Elias the advance of the shame-frontier. In the centuries since the early modern period Elias has noted a progressive distancing from nature, a lengthening of the chains of mediation between nature and bodily experience, a suppression and concealment of one's own naturalness, which is relegated to an invisible, private sphere. This civilizing strategy of distancing from nature and one's natural being includes the differ­ entiation between private and public in general, and, in particular, the internal subdividing of living spaces, the establishment of public lavatories, the use of the handkerchief, cutlery and servi­ ettes, and table manners generally. These civilizing 'attainments' are now taken for granted, and in the age of technical civilization have been heightened still further - for example, by the shower, the electric razor and the deodorant. However - as Norbert Elias was clearly not yet able to perceive - the transition to technical civilization has caused a weakening, if not a reversal, of the main trend of the civilizing process. The objections to Elias are obvious: the emergence of nudism, the relaxation of morals in the sexual sphere, the liberalization of table manners. Even the level of domestic hygiene has long since passed its peak. Alerted by such phenomena, one discovers a downturn or a reversal in other dimensions of the civilizing process. Compared to its level in the Victorian age or the time of Freud, internal repression, too, is much reduced, since it has been taken over again by external agencies. Admittedly, repression now emanates less than earlier from direct authority or the police truncheon; rather, it is imposed by the technicization of life itself, by the general rhythm of traffic and the objective compulsions of the world of work. This does not lead, however, to a liberation of the drive-structure or the development of new passions, but to a split: whereas the life of work and travel runs its course in the cool, disciplined way called for by the modern age, and social reality is frictionless and safe, the liberal­ ized inner world unfolds in a fictitious space: the drive-structure,

The Context of Moral Living and Argumentation 27

freed from sanctions, no longer seeks its fulfilment in reality but in the imaginary world of the media. This equilibrium of disciplined reality-behaviour and aesthetic gratification could be regarded, from the ethical standpoint, as a satisfactory way of managing the human condition - if it were not highly unstable. In reality, the smooth organization of the public person can be seen frequently to be accompanied by a barbarization of the private sphere, and also by a devastating interaction between imaginary drive-satisfaction and the outbreak of real drive-energies in private. A characteristic example is the link between the production of pornographic films and child abuse.

A third dimension of our state of civilization can no longer be described in Elias's terms, but is determined explicitly by tech­ nology, through the existence of material systems of means. If 'technology' is understood to mean knowledge which serves pro­ duction, or a regulatory system intended to enhance behavioural efficiency, then technology is a part of modernity or of the civiliz­ ing process as a whole. But for centuries technology in this sense was dependent on the disciplining and systematic training of human faculties - both physical and mental - and on the organ­ ization of communal life. In our century, technology has existed increasingly as a material system of means to which production and efficiency-enhancement could be delegated for any desired purpose. Technology in this sense takes on the character of an infrastructure for human and social behaviour. Thus, the nature and performance of this behaviour are co-determined by the technology existing at a given time. This process of the technical modification of human behaviour and social relationships can be referred to as technicization. It defines the current state of the civilizing process.

The relevance to ethics of this structure, which I have formu­ lated to begin with in abstract terms, will be made clear at once by an example from sexual morality. For centuries in Europe birth control, to the extent that it was not taken care of by natural factors in any case, i.e. infant mortality, epidemics and wars, was, from the sociological standpoint, a matter of morality. The value placed on virginity, i.e. the prohibition on premarital sexual inter­ course, the Christian recommendation of abstinence, the insti­ tution of celibacy and the restriction of the right to marry to those of a certain social status, had the effect of keeping the birth-rate relatively low. The population theorist Malthus, who in the early nineteenth century was the first to recognize the danger of expo­ nential population growth and a divergence between the graphs

28 The Context of Moral Living and Argumentation

of food production and population increase, still recommended a moral solution to the problem: abstinence. Today the situation is determined by the existence of material systems of means, that is, by technical means of contraception. As the goal of birth-limi­ tation can be achieved directly by technical means, it no longer needs to result indirectly as a by-product of moral behaviour. This has made sexual morality largely superfluous. And its insti­ tutions, from virginity through marriage to celibacy, are becoming dispensable. This certainly does not turn sexuality into a morality­ free zone. But, as compared to the nineteenth century, for example, an extensive liberalization can clearly be observed, going hand in hand with the technicizing of this sphere. And the moral questions no longer relate to distance and inner disciplining, but to which contraceptives should be used when and by which sex­ ual partner.

So much for the description of the make-up of the modern human being as a product of technical civilization. It is probably clear from this that the question as to what it means to be human well cannot be answered universally and in an historically invariant form, but must be related to this make-up of ours. We have to start from ourselves as modern professional men and women and highly controlled traffic participants, with an ego-structure devel­ oped to the point of self-forgetfulness, with a highly effective mechanism for the repression or splitting-off of drive energies - people capable in principle of a high degree of objectivity, cool to the point of being inaccessible to emotion and accustomed to achieving our performances and goals not by moral exertion but by the application of technical means.

To say this, however, is to mention only the general conditions of present-day ethics, as far as they can be defined by anthropology or, better, historical anthropology. The social conditions, which have no less impact on what ethics can be today, must also be identified. I shall give an example straight away. The intense public attention now paid to ethics, the demand which writers on ethics can count on for their products, results from the expectation that many of the social problems which afflict us today - environ­ mental destruction, contamination of foodstuffs, poverty, war, migration, population growth - can be solved by ethical behaviour. That such an expectation might be an anachronism is suggested, perhaps, by the reference to Malthus. If the aim is to protect consumers from genetically manipulated foods treated with dubi­ ous preservatives, a commercial ethics based on the idea of the honest merchant will have little success. The system-goal of a

The Context of Moral Living and Argumentation 29

foodstuffs dealer is neither the nourishment nor the health of his customers, but the maximization of his profit. Why is that so, and why do these two objectives fail to coincide?

The answer is given by the general conditions of our society, the emergence of which Max Weber characterized by the concept of rationalization. This development correlates in many respects with the one described by Elias under the heading of civilization, except that it relates more to the organization of the general life of a society and its institutions, and less, as in Elias, to the inner organization of the human being. A link between the two is formed by the emergence of the modern state, which also plays a major part in Elias. The development of the modern state is determined on the one hand by the monopolization of power and on the other by the depersonalization or objectification of rule. The monopoli­ zation of power by the organs of state leads to an internal pacifi­ cation of social life and to the establishment of non-violent forms of conflict-regulation between states. The neutralization or objecti­ fication of rule is attained by the establishment of the modern professional bureaucracy and the tendency of the state to be transformed into an administrative machine. This leads to a de­ moralization both of the relationship of the citizen to the state and of state actions. The relationships between citizen and state are no longer determined by moral categories such as welfare or loyalty, but by formally regulated rights and duties.

Max Weber characterizes the main line of development of modernity by the concept of rationalization. This term means that each area of life is permeated by analysis, organized according to efficiency-enhancing rules and finally monitored for success. Max Weber's model here is the rational business based on double-entry book-keeping. This kind of business is no longer concerned, like any form of economic activity, with profit, but with profitability, i.e. the intensified exploitation of capital. In the modern age, however, rationalization has changed not only businesses but practically every area of human activity - science, art, the armed forces, administration. According to Weber's cultural and socio­ historical investigations, rationalization has its origin in forms of living, and influences them retroactively. In his book The Protestant Ethic and the Spirit of Capitalism2 he shows that what he calls intramundane asceticism has, on one hand, generated the capacity to work - work becomes a value in itself and is not directly linked to needs and their satisfaction - and, on the other, has led to a separation of consumption from the maximization of profit. Only the latter has made possible the accumulation of capital necessary

30 The Context of Moral Living and Argumentation

to the existence of capitalism: profits are not, as a rule, used to increase consumption, but are invested.

Max Weber thus identifies the foundations of the processes of rationalization which lead to the social conditions we call modern. They are related to those characterized by Elias: self-control, the formation of objectivity and far-sightedness, i.e. a capacity to plan and work enabling the appropriate performance of objective tasks within prescribed times, and the separation of the private and public spheres, household and business, work and leisure. How­ ever, the rationalization of all areas of society has a retroactive influence on modes of living. The first mechanism through which this takes place is the spread of expertise. Because every sphere of life, and the actions relevant to it, requires a degree of specialized knowledge so that the actions can be carried out rationally and appropriately, experts responsible for each sphere come into being, and the actions are delegated to them. This is true of spiritual and psychological care, of education, of the treatment of bodily con­ ditions and disorders; it is true of welfare, of care in old age, of one's relationship to the state and of public relationships to other people. The development of various forms of dietetics, i.e. methods of rational living, makes the individual dependent on a host of life-advisers. As a result of the rationalization processes which constitute modernity, therefore, the situation of the individual is characterized by an almost complete incapacitation. As most actions in life require professional knowledge, the individual has to delegate them to experts. Lacking this knowledge, he or she cannot really judge and share in the experts' decisions, and, through fear of unknown risks, is only too willing to hand over his or her decisions in personal conflicts, in educational tasks, in matters of therapy, in the prosecution of rights and the meeting of demands, to specialists. It is revealing that Kant, at the end of the Enlightenment - at the end, be it noted - attributed the failure of human beings to attain intellectual majority to their dependence on experts. In his treatise 'An Answer to the Question: What Is Enlightenment?' of 1783 he writes: 'It is so easy to be immature. If I have a book that has understanding for me, a pastor who has a conscience for me, a doctor who judges my diet for me, and so forth, surely I do not need to trouble myself. I have no need to think, if only I can pay; others will take over the tedious business for me.'3 This situation has not changed since, and has even been consolidated.

The second mechanism through which the rationalization of social life retroactively influences modes of living is the increasing

The Context of Moral Living and Argumentation 3 I

differentiation of the individual spheres of life. A number of examples of this have already been mentioned - such as the separation of household and business, that is, of the reproduction sector from the production sector, and the corresponding severance of the increase in consumption from the increase in profitability. More generally, it can be said that rationalization enforces a separation of the different spheres of life and of social activity, since only in this way can they be rationally organized to meet their specific objectives. Thus, scientific activity is separated from the rest of society in that it is concerned solely with the production of truths and the reciprocal acknowledgement of their producers. Business and industry make themselves autonomous vis-a-vis the rest of society in that they are no longer defined from outside as a system for the satisfaction of needs, but by their internal system­ objective of increased profitability. Habermas, influenced by socio­ logical system-theorists, has described this process as the differentiation of subsystems of instrumental action.4 This means that partial systems organized in terms of a particular system-goal, and in which people's behaviour is organized rationally to attain that goal, detach themselves from the - diffuse - totality of society. The resulting situation is highly significant in guiding the actions of the modern human being. What it amounts to, to state it briefly, is that the behaviour of the individual who is active within such subsystems of instrumental action is morality-free.

This must be clarified by an illustration. I shall take the example of the transition of agriculture to its industrialized form. Let us picture one of the old manorial estates before the industrialization of agriculture. The lord of the manor stood in a patriarchal relation­ ship to the families of his labourers, who belonged to the estate even if they did not belong to him. Their payment did not take a wholly monetary form and did not depend strictly on the time spent labouring, but consisted partly in produce sufficient for subsistence, and in the provision of parcels of land for their own production. It was not the labourer or his wife as individuals who were in service, but the whole family, who joined in the work when needed. Conversely, the patriarch also felt responsible for his labourers' families, supported them in times of need, made arrangements for marriages and funerals. The relationship of the lord of the manor to nature, to his land, was a relationship to an ancestral seat. The working and exploitation of the land, of the fields and forests, served at the same time to reproduce them, and therefore followed well-tried rules of crop rotation, allowing fields to lie fallow, reforestation, etc. After the industrialization of agri-

32 The Context of Moral Living and Argumentation

culture the landowner's relationship to his land and workers became completely different. Let us suppose that, through impov­ erishment, the lord of the manor has to sell his estate to an industrialist, or that he or his family introduce industrialization themselves. In either case, after this moment the land becomes a capital which must yield a profit. It is cultivated according to market laws and profitability is pushed as high as possible by the use of machines and chemical fertilizers. If the estate proves no longer profitable the capital will be withdrawn and will seek other possibilities of its reproduction. In this process the labourers become for the first time free wage-labourers who are paid by the hour and are employed in greater or smaller numbers depending on the productivity of labour.

From an ethical standpoint the difference between these two economic forms is as follows: the lord of the manor and his actions are encompassed within a diffuse situation governed by ethics. His activity itself is not external to him; rather, what he is as a human being is decided by his conduct as lord of the manor. Accordingly, his people are not treated in a merely functional way as providers of labour power, but are also recognized in their dependent position as humans, albeit on a lower level. Even the landlord's relationship to the land and soil is a quasi-ethical one, in that it is a tradition imposing duties on him and also includes a responsi­ bility towards the reproduction of nature. The capitalist, by con­ trast, is, as such, a participant in a highly differentiated system of instrumental action. His economic management is not concerned at all with moral questions, but with questions of efficiency and profitability. These factors govern his actions. And in his actions he does not stand or fall as a person, any more than his workers are integrated as persons in this instrumental context. They, like him, are mere functions, and they can - provided they have enough strength left - be completely different people outside the system.

This example illustrates the extraordinary significance which the process of the differentiation of social subsystems organized on instrumental principles has for ethics. It teaches us that it is pointless to try to solve the problems created by these systems with moral exhortations. The most important historical example of this is the insensitivity of the world-wide system of arms research to appeals to the responsibility of the scientist. One might have hoped that, in this case, the basic guidelines of the scientific system would have generated some receptivity to such appeals. The sociologist of science Robert K. Merton has named some of these basic

The Context of Moral Living and Argumentation 33

guidelines: universalism, communalism, disinterestedness and organized scepticism.5 Such values have indeed largely regulated the dealings of scientists with each other since the beginnings of modern science. But in practice the objectives which the scientists share with their occupational systems, i.e. the national research laboratory, the large research establishment, the firm, have proved dominant in relation to the universalistic standards of science. Studies by Stephen Box and Stephen Cotgrove6 have shown that the behaviour of modern scientists is simply the behaviour of modern professional people, that is, it is finally directed not morally but instrumentally towards the system goal defined by their organizations. This situation is not refuted but is even under­ lined by the existence of movements such as Pugwash or the scientists' 'Responsibility for Peace' movement.

The situation of the modern human being is determined by the rationalization and differentiation of society. People participate in society primarily as professional persons. This participation con­ sists in making their professional competence, or for a certain time their labour power, or their mere presence, available for payment. This participation has nothing to do with what they may otherwise be as human beings, or what they do in their remaining time, their so-called leisure. Their professional activity is morally irrelevant for them, in that while their income and their social status depend on it, their worth as persons, and what they amount to as human beings, do not. Conversely, their professional work serves merely as a basis for the subsistence of what they are in the rest of their lives. It affects them in no way as persons. For their family and friends their work can be entirely unknown, and as a rule it remains shadowy. They do not appear in their families in terms of their professional role - as the traditional farmer was 'the farmer' in his family as well. As a result, there is no need for present-day people to be integral personalities. It is sufficient if they can switch between their various social roles, as working people, road-users, taxpayers, family and leisure persons. In this situation the devel­ opment of a personal style of life, or, indeed, self-realization, has the character of a merely private affair. It is a matter for leisure time and the private sphere. In sum: this situation is removed from the sphere of morality. The behaviour of the modern person is determined by the relevant system imperatives and by what is customary in the subsystem concerned, and through its lack of public relevance the project of a personal style of life is reduced to a hobby.

An ethics which is written and read in one of the developed

34 The Context of Moral Living and Argumentation

industrial nations of our century must take account of this situ­ ation. It is not addressed to the human being in general, but to the human being within technical civilization. This person brings with him or her a specific form of organization, has a high degree of self-control and work-capability, and separates body and soul, or, better, body and consciousness. He is not the master of his conduct of life, but is dependent on experts; he is integrated in social life as a professional and transport-using person. Social life, for its part, takes the form of a bundle of subsystems of instrumental action, which do not call on the individual as a whole person but integrate him or her only partially, i.e. functionally, and which, as a conse­ quence, make the formation of a personal identity impossible or superfluous.

Technical civilization today largely determines what moral questions actually are; at the same time it sets the boundaries within which the individual is accessible to moral discourse, just as it also sets the boundaries within which society can be modified by moral argumentation. But it is precisely these boundaries which give moral discourse its cutting edge.

Our Historical Background

To reflect on where and when this ethics is written and read is to characterize it as an ethics after Auschwitz. An attempt to recon­ struct, or rather to construct, Adorno's moral philosophy appeared under this title? For the crucial fact is that Adorno did not write an ethics, and probably did not believe such a thing possible. Adorno's dictum that it is impossible to write poetry after Ausch­ witz is well known.8 But, in fact, poetry has been written after Auschwitz, and not only after it, but in and about Auschwitz. The real meaning of Adorno's formulation is probably that poetry or an ethics after Auschwitz seemed impossible to him, because he felt too much solidarity with 'metaphysics at the moment of its downfall? and therefore with traditional bourgeois morality. The question can only be what an ethics could look like after and under the auspices of Auschwitz. In keeping with the two main lines of ethics which were distinguished earlier, the question must be: How must I develop in order to survive morally in a world in which Auschwitz is possible? And: How must I argue morally in a country in which Auschwitz really existed? How must I be, what

The Context of Moral Living and Argumentation 35

alertness must I practise, what powers and abilities and possi­ bilities of reflection - perhaps, indeed, what principles - must I have at my disposal in order to survive morally in a situation in which a whole category of people, a population group, a race, is progressively deprived of its rights? In a situation in which I am suddenly forbidden to go to my trusted doctor, to buy at my traditional shop? What must I be able to do, in order to survive morally in a situation in which my neighbours are taken away nightly, colleagues are dismissed from their posts, writers and artists are forbidden to practise their professions? What possi­ bilities must I have at my disposal if people are insulted and beaten up in my presence, if shops whose owners belong to a certain category of people are looted? What will I do if I myself am given the task or the order to remove, to deport, to shoot people of a particular category? These are questions which are difficult to answer in a civilized world and from the experience of a civilized life. But they must be answered, and I would maintain that our civilized life is worthless if it is not permeated by a rehearsal of the necessary answers to such questions. That could mean that this civilized life, which by its nature is set up to relieve us of the burden of moral questions and claims of legitimacy, should, case by case, be taken seriously.

Furthermore, how should a state and a society be structured in a country, in a people, in which Auschwitz was a reality? How must public institutions be judged, and how must one argue for social regulations in a country in which, in the recent past, rights were a racial privilege, in which, with the toleration of the whole population and with the collaboration of a gigantic apparatus of civil servants, employees and other participants, whole categories of people were expelled, condemned to forced labour and mur­ dered? How must the legal system be constituted in a country in which the right to suppress and liquidate political opponents was exercised? How must the treatment of life, sickness and disability be managed, when we can recall that human life was classified as worthy and unworthy in this country, that it was degraded by medicine into experimental material and that euthanasia was practised to remove the burden of caring for gravely ill and disabled people? It is these historical facts which make moral discourse into a real discourse. They determine what can and cannot be said, and whether this society will gain historical self­ awareness.

Social life after 1945 was not set up explicitly in terms of the question as to how one must live in a country in which Auschwitz

36 The Context of Moral Living and Argumentation

had been a reality. It was set up with the desire to turn away from all that and to make a new start, although re-education and the introduction of parliamentary democracy were imposed by the western allies. The existing laws were taken over, but without the fascist additions, and especially the race laws. Their reform in line with the norms of the Basic Law proceeded slowly. Even today some laws from the pre-fascist era survive, such as the right of citizenship, which ties citizenship to descent, and therefore to blood. The Basic Law was created by old-style liberals and scholars, and its fundamental concepts are derived less from the experience of German history than from that of western democracies. Only from a few statutes, such as the abolition of the death penalty or the introduction of the right of resistance, and finally the original version of the right of asylum, can one gather when and for which people this Basic Law was elaborated. All the same, the fathers of the Basic Law10 succeeded in drawing up a constitution which up to now has made possible a high degree of stability and peaceful resolution of conflicts. But the experience of German history has not been incorporated in the Basic Law sufficiently for it to be made the sole standard for further social development. Explicit remembrance of our past is necessary when we are concerned with the further development of social life and its explicit and implicit norms. This is even more the case when provisions of the Basic Law are themselves called into question, as has been the case with the right of asylum.

In the political sphere, therefore, the task of creating an ethics after Auschwitz has yet to be performed. It is no different in the individual sphere, that is, with regard to the projecting of modes of living. People from the generation of those directly involved and affected have not, as a rule, been able to synthesize their lives into a biography. We can only be lenient towards their repression, their forgetting and their silence today if we acknowledge that to assimilate and master something as terrible as what happened around them, through them and to them, was impossible. The most active of them have at least worked, through their commit­ ment to the constitutional state and democracy, to remove the traces of the past. Nevertheless, as a result of their silence, the National-Socialist past was repressed in the public sphere in post­ war Germany, and the attitude to life of the succeeding generation was not shaped by the legacy of Auschwitz. This was not changed when the public began to concern itself with the National-Socialist past in the 1960s, because the following generation, invoking the 'blessing of later birth', believed it could manage its relationship

The Context of Moral Living and Argumentation 37

to the German past by distancing itself and by moral condem­ nation. However, the lifting of the taboo on the past, brought about primarily by the students' movement, and the ability to talk about and investigate all the horrors of the past, concealed a much deeper taboo - the taboo on empathizing with those involved and affected, that is, the perpetrators as well as the victims. How profound this taboo is was made plain when a President of the Bundestag was forced to resign from one day to the next, and was consigned to political oblivion, because of a speech.ll This abrupt event cannot be adequately explained by an inept or offensive use of words. Rather, Philipp Jenninger had expressed empathy with the Germans who had stood passively by during the pogroms of the so-called Reichskristallnacht or had applauded them, and he had lent his voice to Heinrich Himmler.

To do justice to the seriousness conferred on one's own life by Auschwitz it is not enough to be indignant about the fact and to distance oneself from it with a declamatory 'Never again'. What is at issue is not only the fact of Auschwitz, but the ability to look its possibility in the face. To do this one must be able to imagine what it meant to be a participant or a victim. Only by opening oneself to the possibility of Auschwitz does one become able to shape one's life so that one- is forearmed against its becoming a reality. For this to be possible, the frozen block which is Auschwitz must be thawed. And for that, the people who lived at that time must be released from their state as an undifferentiated mass solidified by rigor mortis, and made, in a certain sense, comprehensible. This work has been done in part today by the 'children of the perpetra­ tors',12 and by survivors of the Holocaust.

Let us first picture the situation in which one might have been one of the victims. As a German one usually resists this idea. Does this resistance still contain a residue of the notion of the master race? Perhaps one need only recall that, not too long ago, many people in former Yugoslavia who are now victims would have been unable to imagine such a situation. Whether one is a perpe­ trator or a victim does not depend on oneself, but on the external constellations of power. But we are not concerned only with genocide and the question whether one belongs to a category of people who traditionally were among the powerful. We are also concerned, for example, with torture, which in certain power formations can be inflicted on anyone.

The first thing to be borne in mind is the possibility that death can be unwitnessed. Probably still more terrible than the death and suffering itself is the fact that under the conditions of modern

38 The Context of Moral Living and Argumentation

mass extermination and torture no one bears witness to that death and suffering. The exemplary nature of the death of Socrates, for example, who bravely took on himself an unjust verdict, is effaced under the conditions of the twentieth century, for he died his death on the stage, as it were, and was able by the manner of it to earn immortal fame. That is not the case with the dead of the twentieth century, who did not die individually but in a mass, or if individ­ ually, then unseen and with no one to witness how they bore it. Even though the equation of virtue and happiness is fallacious, nevertheless, it will always make a difference for the person who died well - a difference, indeed, of everlasting meaning - if someone has been looking on. For only thereby does virtue become real, and is not swallowed up in the vortex of nothingness. This is the 'loneliness of the dying' which threatens us in our period of history, not the average loneliness of the modern person, as understood by Norbert Elias,13 The question is whether one will be able to maintain one's moral existence when there are no wit­ nesses. The Sophist Antiphon formulated the matter as early as the fifth century Be: 'A man therefore can best conduct himself in harmony with justice, if when in the company of witnesses he uphold the laws, and when alone without witnesses he uphold the edicts of nature.'14 One of those affected by the Holocaust, Ruth Khiger, whose father died in the gas chambers, expresses the disquiet associated with this situation:

In their death agony the strong trod on the weak, so that the corpses of the men were always on top, those of the children right at the bottom. Did my father trample on children, on children like me, when he breathed his last? But, after all, he was not someone who used his elbows, and on his first day at school he stood right at the back, leaning against the railing. Does someone who is suffocating reach the limit of freedom and trample on others? Or are there, even then, differences, exceptions?15

How did my father conduct himself? asks Ruth Kluger. How would we conduct ourselves? we must ask. The quotation also confronts us with the second question which we must come to terms with in case we become victims. If we hold firmly in mind the terror into which the word Auschwitz sucks us as if into a black hole, and consider it in detail as an everyday reality, as it was experienced by the victims, it emerges that, strictly, there are not only perpetrators and victims but a hierarchy of very fine gradations between them. Perpetrators and victims are terms for

The Context of Moral Living and Argumentation 39

poles. But the terrible thing about the National-Socialist extermi­ nation system was that these poles were intertwined. That is not meant as an excuse for the perpetrators, but the voices of the victims who tell us that they, too, were perpetrators should be taken seriously. The formula of the identification with the aggres­ sor is known from psychology. There is clear evidence of this in the reports of the persecuted Jews. For example, in his book Shivitti, Ka-Tzetnik [concentration camp inmate] 135633 describes a vision in which he saw himself wearing an SS cap.16 In his book Wartime Lies, Louis Begley makes Maciek, the Polish Jewish boy, kill lice 'as the SS kill Jews',17 And although Maciek is constantly driven from one hiding place to another by the SS and the Wehrmacht, he plays a game with his tin soldiers in which the brave and orderly SS chase the Russians. Identification with the aggressor is one danger for the victim; the other is collaboration. A problem which has not been fully worked through by the Jewish people is the co-operation of the Jewish councils with the Nazis. The book by Begley just mentioned describes how the Jewish councils lent the Nazis a helping hand in 'selecting' Jews according to categories - anyone who could not prove their identity, who had no work, was below or above a certain age - and arranged for their orderly transportation to the camps.18 One of the mechanisms of the National-Socialist extermination machinery which ensured that the genocide went so smoothly consisted in constantly making distinctions between the victims. This means that there were always minimally better chances of coming out alive, of distancing oneself from others even in the deepest wretchedness, and sharing in the power of the oppressors even while one was a victim. That is one answer, even if a far from adequate one, to the question why the Jews offered so little resistance to their annihilation. This makes the signal given by the uprising in the Warsaw ghetto all the more significant. More important still are the reports of indi­ viduals who were capable of saying 'No' even when it was almost meaningless - even more so if one exposes oneself to the situation of the victim by asking: What would I have done, what would I do? This is the testimony of Ka-Tzetnik 135633:

Because the crematorium was overstretched and the barracks were full to bursting point, the lorries dumped their loads into this ditch, and the 55 man turned to the first man he came to in our row and ordered him to take a petrol canister and empty it over the women and children.

'No! No!' he said in Dutch.

40 The Context of Moral Living and Argumentation

I shall never forget the tormented look of rebellion in his face, and his Dutch 'No!' will always ring in my ears. Never had such a 'No!' been said to a German in Auschwitz.

And while women and children burned, the 55 man stamped round behind our row and gave the Dutchman a kick in the backside. Like a piece of dry driftwood his skeleton tumbled into the flames.19

Such testimonies may be as remote and untouchable as the fact of the million-fold murder itself. But they do restore their dignity to the victims, by making us realize, in the light of individual events, that the extermination really did take place: on this earth, on particular days, at certain hours and through the actions of individual people, even if there were very many of them. Ethics after Auschwitz poses the question of being-human-well in the light of such testimonies. It will always be the question whether one failed to say 'No' to collaboration with evil - even in situations where it would have cost much less - and still fails to say it.

Now let us consider the situation of the perpetrators. I said that it is difficult for us as Germans to identify ourselves with the victims. But can we really imagine having been the perpetrators, or rather: Are we prepared to face the idea that we could find ourselves in the role of perpetrators? We are prevented from picturing this to ourselves by our pacified, civilized daily life and the belief that it must take terrible criminals to commit such terrible crimes. This casual assumption of the stability of our civilized state might have been shaken in anyone who experienced the innocuous life in former Yugoslavia as a tourist. But Hannah Arendt's book Eichmann in Jerusalem20 has deprived us of the - protective - belief that the dreadful crimes committed at the time of the so-called Third Reich were the deeds of dreadful people. This belief has long prevented us from thinking that these deeds actually concern us. 'I myself ' - everyone could say in good faith - 'am not such a dreadful person that I would ever participate in such murders. So what have they to do with me?' Hannah Arendt's book shows that Eichmann was a very simple, somewhat proper, conscientious and far from evil man. If only he had been a diabolical demon! The dreadful thing is that Eichmann was like everyone and that every­ one could be Eichmann. Hannah Arendt came to her conclusion on the basis of her observations during the Eichmann trial in Jerusalem, and on the basis of the interrogation reports and a partial knowledge of his autobiography. I do not want to give details of his life here; instead, I will quote Hannah Arendt's

The Context of Moral Living and Argumentation 4 1

concluding summary. She speaks of the difficulty the judges had in understanding the accused. Then she goes on:

Clearly, it was not enough that they [the judges at the Jerusalem trial] did not follow the prosecution in its obviously mistaken description of the accused as a 'perverted sadist', nor would it have been enough if they had gone one step further and shown the inconsistency of the case for the prosecution, in which Mr Hausner wanted to try the most abnormal monster the world had ever seen . . . . The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal,21

In another place she stresses the opinion of a psychiatrist who had examined Eichmann, that 'his whole psychological outlook, his attitude toward his wife and children, mother and father, brothers, sisters, and friends, was "not only normal but most desirable'' '.22

As the head of Section 4B in Office IV at the headquarters of the Reich security service, Eichmann, this 'normal person', had organ­ ized the deportation of the European Jews, that is, ultimately, their transportation to the extermination camps. He claims that he had never hated Jews and had never killed any Jew or non-Jew. He carried out the task assigned to him within the plan for the so­ called final solution of the Jewish question with circumspection, energy and bureaucratic punctiliousness. He was thus, operating in a central position, one of those primarily responsible for the annihilation of European Jewry, and was therefore condemned to death by the court in Jerusalem.

Hannah Arendt rightly says that this judgement, and the trial itself, did not solve 'the most serious moral problem presented by the case' or even make it a subject of debate. This problem is that an Everyman took part in and, through his office, actually commit­ ted a monstrous crime without even being aware that it was a monstrous crime. That could lead one to conclude that the criminal factor was not the individual at all, but the system. Although there is some truth in this view, and although the monstrousness of the National-Socialist crimes certainly cannot be explained by the actions of individual people alone, this view should not be taken as grounds for excusing the individual. Not even Eichmann used this argument to justify himself, although he did point out that in his place eighty million Germans would have acted in exactly the same way. But all he meant by this was that he had done his duty.

42 The Context of Moral Living and Argumentation

The moral point is, of course, that neither Eichmann nor anyone else ought to have acted as he did. And the question is: What must one be like as a person, which aptitudes must one acquire in order not to act like Eichmann, however overwhelming the system of evil may be?

The monstrousness of the Eichmann case and the impression, which is hard to resist, that evil itself had taken on an autonomous existence different to the evil actions of human beings, might still prevent us from feeling directly affected by this case. I should therefore like to say something about a psychological investigation which, in a relatively innocuous context, shows the same thing as the Eichmann case: that everyone, in certain constellations, is capable of crimes against humanity. I am referring to what is known as the Milgram experiment,23

In the early 1960s the American psychologist Stanley Milgram carried out a series of tests to investigate the phenomenon of obedience to authority. He summarizes the results as follows:

This is, perhaps, the most fundamental lesson of our study: ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a terrible destructive process. Moreover, even when the destructive effects of their work become patently clear, and they are asked to carry out actions incompatible with fundamental standards of morality, relatively few people have the resources needed to resist authority. A variety of inhibitions against disobeying authority come into play and successfully keep the person in his place.24

The experiment was set up, briefly, as follows: the test subjects - quite ordinary people from the street - were placed in the role of teachers who were to train 'learners' to make certain word associ­ ations. They were to bring about this 'learning process' with the aid of a shock generator with which they could subject the 'learn­ ers' to electric shocks of 15 to 450 volts. Clearly legible on the shock generator was a scale with the readings: Slight Shock, Moderate Shock, Medium Shock, Powerful Shock, Very Powerful Shock, Danger - Severe Shock.

The subject was told to administer a shock to the learner each time he gave a wrong response. Moreover - and this is the key command - the subject was instructed to 'move one level higher on the shock generator each time the learner gives a wrong answer.' He was also instructed to announce the voltage level before administering the shock. This served to continually remind the subjects of the increas-

The Context of Moral Living and Argumentation 43

ing intensity of shocks administered to the learner. If the subject reached the 30th shock level (4S0 volts), he was instructed to continue the procedure using this maximum voltage. After two further trials, the experimenter called a halt to the experiment.25

The 'learner', however, was a person initiated into the scientists' intentions, and did not receive real shocks but merely mimed their effects. The screams and convulsions of the 'learner' could be heard and seen by the test subject who had taken over the role of teacher. However, a test subject who hesitated was instructed to continue.

The result varied, depending on the nearness to the victim of the test subject. If the victim was sitting behind a pane of glass covered with a sheet of foil, 65 per cent of test subjects obeyed their orders right up to the most powerful shock of 450 volts. But even when there was acoustic feedback the figure was still 62.5 per cent. To give an impression of the kind of reactions of the victim which were accepted by the test subject, I quote a schematic overview:

In general, however, the victim indicated no discomfort until the 7S­ volt shock was administered, at which time there was a little grunt. Similar reactions followed the 90- and lOS-volt shocks, and at 120 volts the victim shouted to the experimenter that the shocks were becoming painful. Painful groans were heard on administration of the 13S-volt shock, and at lS0 volts the victim cried out, 'Experi­ menter, get me out of here! I won't be in the experiment any more! I refuse to go on!' Cries of this type continued with generally rising intensity, so that at 180 volts his response to the shock was definitely an agonised scream. Throughout, from lS0 volts on, he insisted that he be let out of the experiment. At 300 volts the victim shouted in desperation that he would no longer provide answers to the mem­ ory test,26

Milgram carried out his experiments expressly in relation to the Nazi crimes, and also in the context of the crimes against humanity then being committed by US troops in Vietnam. The matter-of-fact nature of his setting and the arbitrary selection of test subjects prevent us from evading the moral question, by taking flight either into a demonology of evil or into hypotheses about selective careers in the SS. Each of us could have been one of Milgram's test subjects. The question poses itself again: What must one be like, what abilities must one have at one's disposal, to be morally equal to such situations? It clearly is not sufficient to be a decent person

44 The Context of Moral Living and Argumentation

with passable moral views - when matters become serious that is not enough.

Hannah Arendt's account and Stanley Milgram's experiments are in the tradition of the Enlightenment: they attempt to acknowl­ edge the reality of evil without at the same time assuming a power of evil or a wickedness rooted in the human being. Evil happens. The ethical question consists in what a person must do in order not to be drawn into its vortex.

Although this way of acknowledging evil does result directly from taking seriously the horrors of the twentieth century, the question remains whether it is not, all the same, a naive way. Naivety is something one cannot afford in this context - not when one is concerned with ethics. It must unfortunately be said that an ethics without a concept of evil is worthless in our time. Admit­ tedly, in concerning oneself with this concept one must take account of the fact that to take seriously the horror of evil might well mean to acknowledge its incomprehensibility. Nevertheless, two questions must at least be asked. Firstly, is there something in human beings which meets evil halfway, a tendency towards a joy in evil, which causes them to join in 'the evil which happens'? And secondly, is it adequate to the experience of individuals as a phenomenon to personify the overwhelming power of 'the evil which happens' as a demon or a devil?

Let us begin with the first question. Hannah Arendt's descrip­ tion and Milgram's analysis make it seem plausible that evil could be carried out simply in a technical-bureaucratic way - coolly - without the need for any pleasure, evil intention or sadism on the part of the perpetrator. All we appear to be dealing with here is the highly 'functionizable' nature of the modem transport user and professional person. But even in Eichmann there was also a certain affective involvement, which Hannah Arendt refers to as his unfortunate tendency to show off. For example, he said he was proud to have five million Jews on his conscience. Seen from that standpoint, the image of Eichmann as the conscientious petty bourgeois might appear somewhat different. But we do not have to rely on this example. There are sufficient testimonies to the fact that, within the Nazis' bureaucratic-technical annihilation machin­ ery, participating individuals displayed 'unnecessary' cruelty - if one is allowed to express it thus - and sadistic pleasure. More generally, it can be said that the denigration of Jews as 'sub­ humans' or non-humans not only made the actions of the perpetra­ tors easier for them, but that the perpetrators - like a large part of the population of the third Reich at the time, incidentally - clearly

The Context of Moral Living and Argumentation 45

had an interest in this denigration. This interest emerges especially clearly in cases of rape - rape in war and also in quite ordinary, peaceful contexts. The degradation of the rape victim, the violation of their humanity, is an important dimension of this type of sexuality - and is, unfortunately, a principal tendency of European sexuality in generaJ.27 Must one assume that a joy in destroying, tormenting, killing is an elementary attribute of the human being? In face of such a question, which cannot be avoided in view of what human beings have inflicted on each other in the twentieth century, even the biblical doctrine of original sin and the Kantian teaching of a radical evil in human beings fall short of the mark. For, according to the Bible story, original sin is partly rebellion against domination, partly curiosity and partly simple violation of a rule - all tendencies which one can readily attribute to human beings without accusing them of fundamental wickedness. And the Kantian concept of radical evil really expresses only the ambiv­ alence of freedom: freedom is always also the freedom to commit evil. Freud, it is true, does speak of a destructive drive. However, the human being postulated by psychoanalysis is always the cultured person, or, let us say rather, the formed person, so that something like a destructive drive can only manifest itself within a certain dynamic constellation of drives, which also depends on external circumstances. The characteristic example, and the most important one in our context, is the unleashing of destructive drive-energies which Freud noted during the First World War. One should think of his writings Thoughts for the Times on War and Death and Civilisation and Its Discontents.28 According to these studies the evil in human beings appears as a correlative or, perhaps rather, an outbreak or a reaction against the processes of civilization and culture. In coming to this conclusion Freud clearly struck a balance between his deeply sceptical view of man and his, in principle, enlightened attitude. For the purposes of this ethics, that view of man teaches us that we must all reckon with the fact that under certain conditions something truly evil and malignant can break out in us, a desire for and a joy in degrading, tormenting and destroying others.

I now come to the second question: whether it does justice to the phenomena concerned to refer to 'the evil which happens' as an autonomous power, or as a devil. Here, we must take seriously the fact that the victims, who really had reason to regard the Germans or the 55 or the individual 55 officer or concentration camp guard as responsible, sometimes did not do so, but spoke explicitly of the evil, the devil. I quote from Ka-Tzetnik's book Shivitti: 'It is not

46 The Context of Moral Living and Argumentation

Vevke [the cobbler, G.B.] who is rising in the smoke from the crematorium, no - it is he himself, no other than Aschmodai, the King of the Underworld' [trans. E.J. from pp. 60-1].

Philosophy has always made heavy work of acknowledging evil. The reason lies in the basic decision to identify being with virtue, first taken by Plato. After that the bad could never really be conceived as evil, as something in its own right, but only as an absence of the good. Even within Christianity it was not very easy to conceive of evil. Nevertheless, as we know, the personified Devil has existed since the story of the Fall, and remained solidly rooted in cultural history until the eighteenth century. But to conceive of evil was difficult for Christianity, too, especially if one took God seriously as the creator of the universe. Thus, evil was usually regarded as a divine power which had been split off and cast down, as Lucifer. The eighteenth century, whose children we still are, undertook, in the form of the Enlightenment, a grandiose attempt to do away with evil. It turned out, however, to be a largely ideological attempt, in which evil was conjured away in thought rather than in reality. The Devil, experiences of whom were widely reported in the eighteenth century, was unmasked as a mere figment of the imagination. The liberation achieved in this way was, however, always illusory, since that which had pre­ viously been understood as an imposition, a temptation or an overwhelming power from outside now had to be ascribed to the subject himself. The source of evil was transposed to within, especially to the imagination. The Enlightenment proceeded in a similar way with the evil in the world. The optimism of the century, which found expression especially in Leibniz's theodicy, disposed of evil by seeing its effects as absorbed into the good in a grand earthly reckoning, or even by regarding it as a mechanism and catalyst of the good. Mandeville's fable of the bees, which teaches that 'private vices' become, or foster, 'public virtues', is a well­ known example of this thinking.

In the twentieth century we have lost this trust in the goodness of the whole. Today the certainty of evil is more obvious than that of good. And if we remain true to the Enlightenment at least in not assuming a personalized evil, we still have to come to terms with the experience that evil can be supra-individual, that is, it can take on an autonomous existence vis-a-vis the actions of individu­ als. This possibility that the whole can be the false, as Adorno put it, whether it be the 'system', the state or the social and economic order, must be kept in mind as a basic ethical experience of the twentieth century.

The Context of Moral Living and Argumentation 47

This may indeed be the formula summing up the profound shock to moral confidence which every ethics must now take as its starting-point: the whole can be the false - the state can be criminal, the economy exploitative, the conditions of life inhuman. The shattering of moral confidence has made clear the degree to which individual goodness is dependent on the general social and histor­ ical conditions in which it seeks to realize itself. I would remind you only of the well-known speech by Heinrich Himmler at the congress of 55 group leaders in Poznan on 4 October 1943, in which he praised the morality of the 55 men, who had 'endured' the concrete reality of the extirpation of the Jewish people and in so doing, 'aside from exceptional instances of human weakness - had remained decent'.29 What Himmler was here attempting to associate, as a 'withstanding' of the temptations of human weak­ ness, with the classical virtues of steadfastness, self-mastery and even bravery, is utterly nullified by the context. We can and must say today that to be human well in this situation would have meant precisely not enduring what went on around one, and bravery would have been to say 'No' to participation in mass murder. (There are examples of this, too.) One should not conclude from this, however, that virtues such as bravery or a sense of duty were devalued as such through the context of the Third Reich. If one refers to them as mere 'secondary virtues' one needs to state what the primary virtues are. It is true that it depends on the context whether virtues are actually good, that is, form part of being-human-well. But that does not mean that they could be replaced simply by principles as guidance for action.

For even actions guided by principles can be morally nullified by the historical-political context. The use Eichmann made of the categorical imperative may be an example of this.3o But one would prefer to speak of a misuse, as also in the case of Himmler's use of the vocabulary of bravery and the ability of his people to suppress their feelings. But the book by Begley, Wartime Lies, already referred to, refutes beyond any doubt the Kantian, i.e. categorical, derivation of the demand for truth. It can be seen that Kant's abstraction from the political-historical context of action was only possible on the basis of confidence in a moral world order. For us today, precisely the shattering of this confidence must be the starting-point of ethical reflections.

48 The Context of Moral Living and Argumentation

Basic Moral I d eas

In this section a further attempt will be made to mark out the horizon within which a project for a moral existence can unfold, or against the background of which moral argumentation to estab­ lish social regulations can take place. Apart from the civilized state of European man and his historical experience in the last century, certain more or less explicitly basic moral ideas must be con­ sidered. By explicit basic moral ideas I refer to ideas anchored in the conventions of human rights and in the German Basic Law. The next section will be devoted to them. Here I am concerned rather with basic moral knowledge, in so far as it is 'tacit know­ ledge', that is, is passed on mainly implicitly and is manifested only in cases where it is problematized or violated. If this moral background knowledge becomes explicit, it is in the form of concrete notions which imply a command or a prohibition or something worth striving for. Such notions can also be referred to as values. This brings us close to a material ethics of value, as developed by Max Scheler or Nicolai Hartmann.31 But for us, neither the founding of these values on feeling, as in Scheler, nor their in-itself existence as in Hartmann, can be the guideline. Rather, the basic moral ideas will be taken straightforwardly as a culture which forms the horizon within which moral orientation takes place. Moreover, moral orientation itself, that is, the devel­ opment of a moral self-awareness or the discourse for establishing social norms, can very well call these basic moral ideas into question. Incidentally, their status as basic moral ideas is in no way affected by the fact that in individual cases they may be violated by concrete actions.

In what follows I shall begin with the basic moral ideas which are so deep-seated that one has reason to suppose that they originate in natural history. They are generally referred to as taboos. Then I shall turn to the basic ideas which stem from the three main sources of our culture, Graeco-Roman antiquity, the Judaeo-Christian religion and, finally, man's great quest for self­ determination in the modern period. These latter ideas then lead on naturally to an explication of the basic moral ideas enshrined in the conventions of human rights and in constitutions.

The Context of Moral Living and Argumentation 49

Taboos

Taboos are specific prohibitions which must be strictly observed in a society, on pain of exclusion from that society. They can be so far internalized that their infringement leads to self-punishment, i.e. voluntary exclusion or suicide. This definition is probably too strong to apply to a post-Enlightenment society, especially as violations of taboos in this society have become criminal offences. The result is that, on one hand, rules for atonement within the society have been introduced, and on the other, the individual is no longer permitted to deal with the infringement himself. What is important, however, is that taboos are basic moral ideas which are prior to all social norms. It is therefore, strictly speaking, impossible to formulate what a taboo is, since unconsciousness is an important feature of its status. However, in our culture, they include, at any rate, the taboo on incest and the prohibition on killing other people.

The special status of taboos among the basic moral ideas consists in the immediacy of their effectiveness and the supposition that they may have a pre-cultural origin. The term taboo comes origi­ nally from the Polynesian religion, and has been generalized by ethnologists to refer to very strict avoidance-commands or prohi­ bitions on touching which are usually followed unconsciously. Their incomprehensibility, and ethnology's original orientation towards primitive cultures, have fostered the view that taboos might be pre-cultural. On the other hand, it has also emerged that taboos are constitutive of culture and society, or, more precisely, that they even define group identities. But this function, too, places them, in a sense, between nature and culture: they may have a basis in nature, but mark precisely the transition to cultural for­ mations. This view is partially supported today by ethology, i.e. the theory on the behaviour of animals. Both aspects, nature and culture, will be elucidated with reference to the examples men­ tioned, the prohibitions on killing and incest.

Killing a person is not forbidden because it would be a criminal offence. Rather, the killing of a person has been included in the regulations of the penal code so that it can be dealt with within society and does not lead to exclusion from society, blood feuds, etc. One does not abstain from killing because it is a punishable act; clearly, a more deep-seated inhibition is involved. Since, as Konrad Lorenz32 has shown, species-specific inhibitions on killing

50 The Context of Moral Living and Argumentation

exist in the animal kingdom, one might suppose that man, too, is equipped with such inhibitions by his pre-cultural origin. How­ ever, the comparison with animals shows that this inhibition on killing can be not only species-specific but group-specific. This is the case with rats, for example. Since, among humans, instances of untrammelled aggression between groups - today we call them 'wars' - can be observed as far back as we can look, only a group­ specific inhibition on killing, if any at all, must be assumed among humans. That would mean that the inhibition on killing also marks the start of cultural conditioning, in that it forms group identity by demarcation from what is outside. Konrad Lorenz, who deals with such questions in his book On Aggression, inclines to the view that the origin of the prohibition on killing lies in a species-specific inhibition, which later, under cultural conditions, and especially after the invention of weapons, became insufficient.33

Whereas no species can survive without a certain form of inhibition on killing its own members, the question of sexual intercourse between close relatives is regulated very differently in different animal species. However, what we call the incest taboo does exist among animals. In the case of man, however, it must be said that a society-constituting prohibition is involved. Applied positively, it is the dictate of exogamy, that is, the command that one should seek one's sexual partner in a human group other than one's own. This makes it clear, however, that the incest taboo, or the exogamy command, itself requires cultural elaboration. For it depends on, and helps to define, what is regarded as one's own human group. This implies, moreover, that in some groups or societies an endogamy command can exist, for example, in the caste system, and that, in the Egyptian royal houses, for example, marriage between siblings was quite customary, if not actually demanded. In our society the incest taboo is applied, on a rising and falling scale, between siblings. That, at any rate, is how it has been formulated in law; its extent qua taboo cannot be precisely determined.

The non-conventional nature of taboos challenges us to ask about their functions. We have already begun to answer this in speaking of their function in constituting culture or society. Taboos clearly have a function of defining human groups against each other, but also of regulating the relations between these groups. The latter function has been demonstrated especially by Claude Levi-Strauss in his works on this subject. The most interesting result to emerge from them is the structural similarity between totem clans and the caste system. Totem clans define themselves

The Context of Moral Living and Argumentation 5 I

in terms of a totem, for example, an animal, and observe strict exogamy; that is, their relationships with each other are regulated by an exchange of women. In the caste system this is reversed. In the castes strict endogamy is observed; they therefore see them­ selves as a natural unit, while they regulate their external relations by exchange of the particular services and products for which they are responsible as a caste.34

However, apart from or instead of their social function, a biological or psychological function can be attributed to taboos. As the biological function of the incest taboo, it has long been assumed that incest can lead to hereditary defects. According to modem biology, however, that is not a tenable position, except that existing hereditary defects have a greater probability of manifesting them­ selves from a conjunction of the same genetic material. On the other hand, one can say, of course, that endogamy in a wider or narrower sense could lead to the formation of races and, as a tendency, to a splitting-up of the human species, so that, con­ versely, all anti-racist arguments and behaviour promote the bio­ logical unity of mankind. An evolutionary function of the incest taboo could also lie in the enhancement of variability.

Psychological functions have been attributed to taboos primarily by Sigmund Freud.35 He believes that they subserve the repression of very fundamental drives. However, this argument has become questionable in view of Bataille's contention that drives grow more violent precisely when they encounter prohibitions.36

From an ethical standpoint, all these reflections on the possible functions of taboos are irrelevant, or even dangerous. For example, when Hans Kramer locates the justification for the prohibition on incest 'especially between father and daughter', as he writes,37 in gene theory, this amounts practically to an ethical suspension of the taboo. Even if hereditary defects, in which Kramer evidently still believes, could appear, they could easily be averted by contra­ ceptives, and nothing would then stand in the way of incest between father and daughter. The ethical significance of taboos lies precisely in the fact that they are basic moral ideas, that is, they apply unconditionally. The inhibition stemming from them is pre­ rational. Naturally, as an enlightened person one can strengthen oneself or them by clarifying their functional plausibility from case to case. But they would not be what they are if they were really experienced in terms of their possibly specifiable biological, social or psychological functions.

A characteristic feature of the basic moral ideas which we subsume under the heading of taboos is that they are normally

52 The Context of Moral Living and Argumentation

obeyed out of intuitive aversion. Every legal elaboration, every cultural restriction or extension of their range of application pre­ supposes their validity in principle. On the basis of the fundamen­ tal ban on killing, for example, it is quite possible to suspend this prohibition in typical individual cases. But for this a special legitimation is always needed.

Graeco-Roman basic ideas

So much for taboos. In what follows it will become more difficult to identify basic ideas. In what order should they be presented, and what should be referred to as a basic idea? Let us therefore reflect once more on what such basic ideas are and what they are supposed to achieve: they form a collection of topoi in the Aristo­ telian sense. Topoi could best be translated as 'commonplaces', if that were not a pejorative term. Topoi are, as it were, stopping­ points for rhetoric, common references, ideas which the orator can assume to be shared by his listeners. Moral discourses move within the framework of such topoi, using them as reference points. That does not mean, of course, that the basic moral ideas, the topoi, are unchanging - but, at any rate, they form the initial starting-point. But these topoi also play a part for the individual in projecting his or her moral life. In this case, however, they tend to be the remnants of past forms of living or ideals of humanity, from which one must start out - especially as a young person - if one wants to find out what a moral life can be under the given conditions of life. Here, of course, the decisive thing will be how one comes to terms with the present situation.

I shall take as an example the classical virtue of bravery. This virtue undoubtedly once formed part of being-human-well. But it is easy to see today that it was originally a component of a warlike self-stylization by men. In addition, it was integrated into a moral world order, in the sense that bravery was sure of finding recog­ nition and fame on all sides, among both friend and foe. Even though these marginal conditions have crumbled away today, one will have to deal initially with topoi like bravery in one's quest for being-human-well. This is not quite the same as the requirement that one should first abide by what is customary, or the assertion that the moral life only begins beyond customary behaviour. For today the classical virtues, because of their antiquated character, diverge sharply from customary behaviour and are therefore topoi

The Context of Moral Living and Argumentation 53

which can form the starting-point for a moral life. Imagine, for example, an official in a public authority suddenly getting the idea of being brave.

Let us begin, therefore, with the basic moral ideas of Graeco­ Roman origin which can still exert an influence as topoi. I should reiterate first of all what I have already said in general terms about the concept of arete. Against this background of our moral culture, virtue means to be better, to distinguish oneself from the many, from the common people, from the unfree. These are lordly virtues in the double sense that they are primarily forms of masculine self­ stylization, in particular the self-stylization of the man as warrior, and additionally they are virtues of the rulers. However, the lordly self-confidence expressed in Graeco-Roman virtues has its precondi­ tion and root in self-mastery. Bravery, magnanimity, level-head­ edness, justice require that one is master of oneself, can set aside one's own wishes, can resist both temptations and demands. Bravery means steadfastness in face of the onset of fear. Magna­ nimity means being able to disregard one's own interests and allowing others to gain recognition, as well as money. Level­ headedness means generally remaining calm and serene in precari­ ous situations and in face of temptations and demands. And, finally, justice is the ability to allow each to receive what is due to him without regard for one's own interests. As a topos of moral discourse, justice is the notion of a balance between the divergent interests of the many. For this reason the emblem of justice is the scales. It makes clear that to demand justice does not mean simply to claim one's rights but to see one's rights in relation to those of others.

However, these Graeco-Roman virtues characterize not only the warrior but the independent man within the community, the citizen. The fact that being-hum an-well was understood to imply independence within the community gave rise to two further moral topoi: on one hand respect, especially the mutual respect of citizens for each other's independence, and, on the other, an obligatory bond to the community. At this point we would be inclined to speak of loyalty - but that presupposes a difference between citizen and state. In classical times - in ancient Greece, for example - there was no state as a separate authority; the citizens together formed the state. For this reason the basic value at issue here is referred to in Greek as politeia, meaning both the state and the public conduct of the citizens within the state. One could, of course, convey the meaning of this topos by the term 'citizen', but that would only make sense if one had in mind a situation in

54 The Context of Moral Living and Argumentation

which not everyone was a citizen, so that being a citizen could be regarded as a part of being-human-well. At any rate, in addition to the classical virtues of bravery, magnanimity, level-headedness and justice, we should keep in mind respect, citizenship and community or common welfare as moral reference points or guidelines.

Before attempting to ascertain which topoi of our moral culture have come down to us from the Judaeo-Christiim religion, I shall briefly consider the question whether there are special basic moral ideas stemming from the Germanic origins of our culture. Because of recent German history, and especially the entanglement of ideas of Germanic origin with National Socialism, this question is diffi­ cult to answer today. A value like 'homeland' or 'fatherland' is hardly something one can appeal to nowadays, although this value can be traced back equally well to the Graeco-Roman tradition, to the concept of patria. The case may be somewhat different with fidelity. Fidelity is firmness in adhering to a voluntary relationship of allegiance, of the kind which was important in a community dependent on personal bonds, like the system of feudal lords and vassals. It may be that the tapas of honour also has its origin in this context.

Finally, there is the question whether beauty has a place in this context of basic moral ideas. With regard to the Greek relationship or, better, unity between beauty and virtue one would unquestion­ ably have to answer in the affirmative. There are numerous exam­ ples from Greek antiquity demonstrating that mere beauty, that is, beauty of appearance, was regarded as a personal value. Today, beauty certainly could not be invoked as a moral tapas, any more ­ incidentally - than obedience.

Basic moral ideas from the Judaeo-Christian religion

If one were asked to list the basic moral ideas originating in the Judaeo-Christian religion, one would think first of the Ten Com­ mandments. But we are now far from invoking the Ten Command­ ments either in projecting a moral life or in moral argumentation. In a community which has long been structured on secular lines, the Judaeo-Christian religion is no longer a power which can order or organize moral life or moral argumentation. Nevertheless, there are individual topoi stemming from the Judaeo-Christian religion which have been assimilated into our secular culture as a kind of

The Context of Moral Living and Argumentation 55

common property. This is especially clear if our culture is com­ pared to those with different religious backgrounds. I would mention charity and forgiveness as two such topoi. The command­ ment to 'love thy neighbour' is something one can appeal to in its substance, if not in these exact terms, at any time in our culture. The demand to help those in need is accepted in principle by everyone, even if it is not acted upon. The recognition of this obligation, together with the desire to be relieved of it individually, has given rise to the large charitable organizations, insurance systems, the social security net, and so on. It can be seen from this development that the secularized term for charity is something like solidarity. The term solidarity, which was the successor to charity in the workers' movement, freed the preceding term from a defect, its asymmetry. Solidarity is a reciprocal willingness to help. On the other hand, it must be said that the Christian commandment of charity also requires that solidarity be exercised towards strangers. That is the moral of the parable of the Good Samaritan (Luke 10: 25-37). Solidarity as a reciprocal relationship is always in danger of being restricted to a circle of friends. 38

Charity as cultural praxis has given rise in our culture to a respect in principle for the poor, the weak, the disadvantaged. The lifting of the slur of inferiority which once attached to sickness and poverty is no doubt a late consequence of this. Another, earlier consequence is the virtue of chivalry, which calls for helpful, magnanimous conduct towards those weaker than oneself, especially women and children. The general privileging of women and children in emergencies and situations of violence is derived from this. Chivalry can be seen as a combination of Graeco-Roman warrior ideals with Christian charity.

A further important moral topos from the Judaeo-Christian religion is forgiveness, with the associated idea of reconciliation. That forgiveness and reconciliation are special moral ideas which have shaped our culture can be seen from the fact that relation­ ships of conflict and guilt can also be resolved by vengeance, punishment and justice. The Christian idea of reconciliation, ori­ ginally the reconciliation between God and man, really brought something new to interpersonal relationships - the possibility of a new beginning, without a settling of accounts. In Christianity this idea is emphasized by the notion of the new Adam. Today, reconciliation and forgiveness are conceptions which influence not only interpersonal relationships but also criminal law and inter­ national relations. These conceptions may, of course, be criticized on the grounds that the idea of reconciliation is frequently invoked

56 The Context of Moral Living and Argumentation

by the guilty, whereas it is the victims who have to make the effort not to be resentful, to draw a line and to forgo retribution. They do prove, however, that forgiveness and reconciliation are basic conceptions which can be invoked in our culture.

Finally, as a last example of a basic moral idea, I should like to mention the family. The family as a basic value may have origi­ nated in ancient Rome, but was raised to an entirely new level by the elevation of marriage to a sacrament within the Christian religion. Despite all the upheavals and disintegrative tendencies besetting the institution, the family has remained a basic idea by which politics and legislation are guided, and which can be made a moral tapas in projecting a moral life - all the more so the less it forms part of customary behaviour.

Basic moral ideas of the modern age

Finally, let us turn to the basic moral ideas peculiar to the modern age. These basic ideas are closest to us - that is, to our awareness of life and to our real situation as human beings in technical civilization. But in terms of their status they are, in a certain sense, the weakest. The modern basic values spring entirely from the undertaking of European people to construct their own condition and their social circumstances on their own initiative. This is referred to, not incorrectly, as the project of modernity.39 The basic moral ideas of the modern period correspond to fundamental topoi of this project of modernity, and thus have, as a rule, the quality of something explicit and deliberate. These basic values are not, therefore, located diffusely and half-unconsciously somewhere behind us, but are formulated explicitly and are therefore at the boundary of what is canonized as law by the process of social consensus-forming. For this reason, following a discussion of these values, the next section will be concerned with the Declaration of Human Rights and the German Basic Law.

Since the objective of the project of modernity is the self­ formation of the human being and his society, self-determination is one of the basic values, and perhaps the basic value, of the modern period. For the individual, self-determination means, or requires, independence from tutelage, privacy and, in particular, freedom in the choice of religion and way of life. This tapas is seen as a defensive value acting against influences and external domination and, more generally, as freedom; more strictly, with regard both to

The Context of Moral Living and Argumentation 57

morality and to legal and political arrangements, it is referred to as autonomy. The principle of self-determination, as the self-deter­ mination of peoples, naturally contradicts any form of domination and, depending on the group, nation, ethnic grouping or region which espouses it, is of immense explosive power. When formu­ lated as freedom, this basic value is more diffuse, but of wider ideological scope. We shall see, however, that in legal norms freedom explicitly takes on a far clearer meaning.

Connected to the basic value of self-determination is the basic value of the individual. The individual is conceived as the sub­ ject of self-determination. That the individual asserts his validity as an individual and claims rights on grounds of his particular­ ity and for his particularity, is a typically modern value. Of course, one may surmise that this value is prefigured in the words of the Christian God, 'I have called thee by thy name'. But that each individual human being as such represents and claims an absolute value must be regarded as a specifically modern development.

The progressive realization, or consolidation, of the individual, has given rise in the modern age to two further fundamental values, those of private property and work. The value of private property doubtless has its precursor, too, in the Christian com­ mandment: 'Thou shalt not covet thy neighbour's wife, child, servant, maid, cattle or whatever is his'.40 But it must be added that the privatization of the commodity sphere is an achievement - if it may be called that - of the modern age. Especially in Europe, feudality and the institution of common land or property, which restricted private property essentially to the house and the repro­ duction sector, were initially far more powerful institutions for the allocation of goods. Admittedly, the generalization of private prop­ erty as a principle of goods allocation was prepared for by the development of towns and the rise of the bourgeoisie, that is, of crafts and trade. With the modern age, however, a close relation­ ship between private property and the individual came into being; that is to say, the property sphere was regarded as the objective realization of the person, and therefore was accorded the same dignity as the individual himself.

However, because this form of social realization could not be generalized - it did not enable the workers and the poor to secure social status as persons - the social value attached to work was progressively heightened. Since antiquity, work had not repre­ sented a value in European culture, but had been seen as something which, while necessary, did not form part of being-human-well. As

58 The Context of Moral Living and Argumentation

far as possible, it was delegated to others, i.e. slaves and depen­ dants. By contrast, the valorization of work since the early modern period, and its function in securing social status for evenjone, is one of the most important developments of moral culture. This can be seen indirectly today in the threat posed in principle to our social identity and the moral-political order by the fact that society is running out of work.

Tolerance is a further basic value of the modern period. It, too, is related to the basic value of self-determination. Tolerance is the requirement that one concede to others the same self-determination which one claims for oneself. In that one's own self-determination is linked to claims to the truth and validity of, for example, one's own moral guidelines or one's own views, tolerance towards others retroactively influences one's own person. For if one regards as possible and approves in others different value guidelines and different truths to one's own, that means, in principle, that one is calling one's own into question. There is a very fine depiction of this reciprocal effect in Gotthold Ephraim Lessing's drama Nathan the Wise (1779), where the relationship of tolerance between the religions of Christianity, Judaism and Islam is interpreted in such a way that none of the religions can know whether it is the true one. The true ring has been lost. This already indicates that tolerance is a value which regulates the relations not only between persons but also between social groups, especially groups defined by their world views and groups from different cultures. How difficult it is in practice to accept the impact of tolerance on one's own person or group, and therefore to question the validity of one's own claims, must be clear.

In conclusion, I would like to discuss two further basic values of the modern period, which are also correlatives of each other: rationality and nature. Rationality is very closely bound up with the project of modernity, in that this principle demands the recon­ struction of the given reality according to freely chosen principles. It calls for rationality of government, rationalization of the econ­ omy, rational religion or, as Kant put it, 'religion within the limits of reason alone'. All these are projects of the Enlightenment, projects which entail consciously appropriating, reconstructing and subjecting to criteria of legitimacy everything which was originally given and handed down by tradition and revelation, or by the facts of history. Accordingly, to be rational, to conduct one's life rationally, are the basic values of modern self-awareness. In the context of Enlightenment philosophy, rationality is nothing less than the basic tapas of being-human-well. We have seen that Max

The Context of Moral Living and Argumentation 59

Weber was able to regard the principle of rationalization as the prime characteristic of modern developments.

The value attached in the modern period to nature exists in a certain contraposition to this basic value of rationality. Previously, especially in the Christian-dominated West, nature as such had not been a value. It only became one in the eighteenth century, when the first doubts about the project of modernity were beginning to arise. Nature was now understood as the given, the original, something not made by men, which was good for precisely that reason. In evaluating nature in this way, critics of modernity were able to hark back to certain notions of the ancient world, by which, since the Greek school of Sophists, nature had been contrasted to culture, human law and convention. Nature could thus act as a counter-authority and a critical principle vis-a-vis the human project. A natural mode of life, natural law, primitive peoples close to nature, natural healing methods - all these are criteria against which modernity's basic values of self-determination and self-formation have been problematized. As Habermas has argued in his book The Philosophical Discourse of Modernity,41 this self­ problematization has accompanied the project of modernity since its early stage. As this project of modernity has now, under the conditions of technical civilization, entered a crisis, it is under­ standable that special importance is currently attached to the value of nature. But as nature is very closely bound up with other modern values, it, too, as we shall see, is itself caught up in this crisis.

Human Rights, Fundamental Rights

Human rights and fundamental rights as themes of moral discourses

The discussion of human rights, as set down in the Universal Declaration of Human Rights42 and the European Convention of Human Rights,43 and of the fundamental rights formulated in the Basic Law of the Federal Republic of Germany,44 has its place in ethics as the horizon of moral discourses. In these discourses a considerable number of further themes which can serve as starting­ points for moral argumentation are identified, and these themes have a special character. Moral discourses, as we know, are con­ cerned with establishing conventions for regulating social actions,

60 The Context of Moral Living and Argumentation

whether these conventions are customs or positive laws. Now, human rights and fundamental rights are themselves such conven­ tions, which are enshrined as positive law. If further conventions are then agreed for purposes of legislation, issues concerning their relationship to human rights or fundamental rights might be concerned merely with conformity - for example, whether a new law conforms to the constitution. Verification of this would not be described as moral discourse. All the same, such verification is not a purely juristic discourse. It must be noted, to begin with, that while the Basic Law and the European Convention of Human Rights have the status of law in the Federal Republic, universal human rights do not, since the Basic Law merely declares its recognition of the latter.45 But even this difference is not decisive, especially as much of the content of the universal human rights is contained in the European Convention of Human Rights.46 Rather, it must be said that general moral themes are addressed in the formulations of human rights and fundamental rights, and that while these are essentially enclosed within a formal legal frame­ work for our society, their substance is by no means exhausted by this form of expression. This applies to concepts such as dignity, life, education, work, freedom. When used as terms in formula­ tions of fundamental rights, these concepts also contain an element of surplus meaning, namely a moral potential. In any new social convention which makes reference to these themes, this moral potential is invoked, interpreted and given content. The indeter­ minacy and undefined nature of these themes as they appear in human and fundamental rights is crucial for their hybrid status between morality and law. But it is reference to them which really makes discourses into moral ones, since matters within these discourses then become serious - serious for the society in which we live. Whether or not they are respected, and the content they are given, continuously define the kind of society in which we live.

Human rights and fundamental rights play only a minor role in projecting a moral existence. However, there are people who commit themselves to human rights and fundamental rights to an exceptional degree, and realize their moral existence in so doing. This applies, for example, to workers for Amnesty International. In themselves, human and fundamental rights tend, by and large, to be neutral with regard to a moral life. That is a fact, which is to say that it could also be otherwise. The reason is that human rights and fundamental rights are liberal rights, which, consequently, do not demand anything of the individual, but secure his autonomy and self-determination. Historically, human rights have come into

The Context of Moral Living and Argumentation 6 1

being essentially as defensive rights against an over-mighty state - for example, the Declaration of Human Rights (1789) against the absolutist state, and the Universal Declaration of Human Rights of 1948 against totalitarian states. This was different in countries which had set up a certain form of living as the state goal, as in the case of socialism in the former German Democratic Republic. Its constitution47 contained the principle: 'Work with us, plan with us, govern with us!' (Art. 21, §1). At any rate, human rights and fundamental rights provide a very wide framework for the project­ ing of a moral life, within which - or possibly against which - one can define one's moral existence. In the Federal Republic of Germany this framework is referred to as the 'free, democratic, basic order'. Still more generally, it can be characterized as that of a constitutional community; that is to say that a moral life is conceived against the background of a convention by which the people with whom one lives have decided from the first to live in a constitutional community.

The Constitutional community

The term 'constitutional community' is not an expression of the Convention of Human Rights or the Basic Law. But it refers to the basic structure of the society which is defined by the existence of these conventions. Such societies are communities which regulate their communal life solely through conventions and, in particular, through those which can be made permanent as laws and are thus independent of support by individual members of the society. That this is a special social situation can be seen, for example, from the fact that in a feudal system there can be laws which are privileges conferred individually by the king. Laws, therefore, are perma­ nently established conventions which are neutral towards persons. A further characteristic is that they can be sanctioned, that is, their infringement can be punished and their observance enforced by law. It is clear that this implicitly presupposes an agency to which appeals can be addressed and which is responsible for sanctioning, that is, a judicial and executive agency - meaning a state. In practice human rights and basic law presuppose this state, or themselves define the conventions on which it is based, and the legitimacy with which it is endowed. Both the Universal Declar­ ation of Human Rights and the European Convention of Human Rights, as well, of course, as the Basic Law of the Federal Republic

62 The Context of Moral Living and Argumentation

of Germany, define this state as a democracy. One might see a problem in this, and regard it historically as an effect of the dominance of western democracies in the formulation of human rights at the United Nations. But this problem impinges, rather, on the universal validity of human rights. To the extent that we regard human rights as reference points for moral argumentation with the aim of establishing regulations in our society, we are unaffected by these problems. For within our society moral argu­ mentation takes place against the horizon of a fundamental decision in favour of democracy.

Democracy

The basic decision to live together in a constitutional community, i.e. a society the life of which is regulated by permanent conven­ tions, implies a number of moral values which are made explicit in human or fundamental rights. This is the point at which the outcome of discursive ethics can be incorporated in the reality of moral discourses. Discursive ethics, as developed, in particular, by Karl-Otto Apel, has demonstrated that to enter into moral dis­ course implies certain values, such as the reciprocal recognition of the persons participating in the discourse, and their equality, in that the relevance of their contributions to the discourse depends only on their argumentative content, and not on the social position of the person expounding them.48 The transition from such a counter-factual discursive ethics, applicable to an ideal discourse free of domination, to real social discourses which contribute to the formation of social conventions, has been attempted by Haber­ mas.49 Without an element of positive law, that is, without the conventional rights of participation and equality, of the kind which operate in democracy, this transition cannot be made.

The principle of democracy is defined, on one hand, by estab­ lishing the origin of state authority and, on the other, by the rights of participation of the individual member of society. Since the Basic Law is a constitution, the origin of state authority can be directly formulated. In the human rights which, in the version of the Declaration of Human Rights of 1948, are always introduced by the formula: 'Everyone . . . ', the question of the origin of state authority is even subordinated to the rights of participation. I quote Article 21 of the Universal Declaration of Human Rights of 1948:

The Context of Moral Living and Argumentation 63

1 Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

2 Everyone has the right to equal access to public service in his country.

3 The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

In these terms the rights of participation and the equality of each individual are formulated. The principle of the division of powers, which is equally essential to our conception of democracy, is not contained in the formulation of human rights, so that they do not express so clearly that the rights of participation relate in particular to what we call moral discourse on conventions for regulating social behaviour. This is contained, however, in the formulation of Article 20, Paragraph 2 of the Basic Law: 'All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs' [trans. E,J.]. Moreover, in the Basic Law the principle of democracy is combined with the right of resistance. Paragraph 4 of Article 20 states: 'All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible' [trans. E.J.].

Although this right of resistance has a long history, it was adopted in the German Basic Law, as already mentioned, in the light of the experiences of the so-called Third Reich. Legal scholars claim that in practical terms it is rather ineffective or even superflu­ ous, because the details of the Basic Democratic Order contain sufficient internal possibilities of revision regarding the formation of resistance, complaints about the constitution, or even the possi­ bility of modifying the Basic Law, in any case.50 For the conscious­ ness of the individual, however, the right of resistance is of extraordinary significance. It implies that everyone has the right critically to monitor the observance of the fundamental rights, and that, in principle, the political sovereignty of the individual remains revocable. For in the concrete political context the formu­ lation that all power emanates from the people is somewhat illusory, since in practice it is always delegated to the organs of state. But the right of resistance implies that this delegated sover­ eignty is in principle revocable by the individual. The right of resistance is therefore the right of the individual to check the

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conduct of the organs of state in terms of general principles, in particular human rights, and to engage in civil disobedience in particular cases.

Human dignity

The concept of human dignity is the central and undefined basic concept both of the Basic Law and of the 1948 Declaration of Human Rights. Article 1, Paragraph 1 of the Basic Law is as follows: 'The dignity of man is inviolable. To respect and protect it is the duty of all state authority' [trans. E.J.]. Here, then, the first function of the state is stated to be the protection of human dignity. Only after this, in Paragraph 2 of Article 1, is there mention of human rights. This structure is found in exactly the same form in the Declaration of Human Rights, in its preamble, which begins: 'Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.' Here, too, the dignity of the human being is placed ahead of his or her rights and referred to as the foundation of the latter. But what actually is dignity?

It can be said, of course, that the basic or human rights which are then listed constitute the dignity of man. This view is not entirely wrong. But if the basic or human rights are understood to be the explication of what is contained in the concept of human dignity, that assumes that this concept or, perhaps one should rather say, this idea is itself richer and capable of further explica­ tion. Strictly speaking, the basic and human rights are put in place to protect human dignity. They are not that dignity itself.

The term dignity [German: Warde] means worth or value, but a value which is socially recognized. If one tried to make this formulation into a definition it would certainly be inadequate, as it would not contain the force of the idea of dignity. Dignity calls for respect and distance. The connotations of the term, and many of its usages, imply someone in an elevated position who acts with dignity, is of high rank [Wiirde]; indeed, the expression conjures up a numinous quality, an aura of holiness floating around the bearer of dignity. The wording of Article 1 of the Basic Law is actually very peculiar, in saying that the dignity of man is 'invio­ lable'. This expression brings dignity into the proximity of a taboo. The impression is further reinforced by the assertory diction. The

The Context of Moral Living and Argumentation 65

Article does not state that the dignity of the human being should not be violated - although that is certainly also meant; it confers on it the status of something untouchable. Such diction is fully appropriate to a text which, as we have maintained, represents a transition from morality to law. The dignity of man is a moral tapas which acts as a guideline for the formulation of basic human rights.

The connotations of the elevated and holy which we associate with the concept of dignity also give the first clause of the Basic Law a rather radically democratic and secular meaning. The lofty and sacred status which worshippers earlier were prepared to confer on particular people or beings is now accorded to every human being as a human being. One should treat every human being with respect, and feel some ultimate awe in one's dealings with him or her. In· this we undoubtedly find once more the mutual respect of citizens which we encountered earlier as a classical tapas, together with the absolute value which the modern age assigns to the individual. It is important to note, however, that human beings are referred to here simply as human beings, and not as citizens or in terms of some other relationship, and that the respect to be paid them is not directed at anything definite in or about them, such as their reason (as in the Kantian realm of rational beings); nor is it required that their special quality should manifest itself in any way. The dignity of human beings forms part of their humanity as such.

'The human being' is thus the second undefined and indetermi­ nate concept in the German Basic Law. The recipient or bearer of the fundamental rights continues to be general and indeterminate - in expressions such as 'everyone has the right' or 'all persons are' - until Article 8 (freedom of assembly), which refers to 'all Germans'. By contrast, it is characteristic of the Declaration of Human Rights that each article begins either with 'everyone' or 'no one' or 'all human beings'. What constitutes being human is thus left just as open as what constitutes dignity. All the same, the formulation of the Declaration of Human Rights does make a fundamental statement when, in the Preamble, it speaks of 'all members of the human family'. Of course, the term 'family' is used here in an extended and metaphorical sense, but it does refer to 'all human beings' as a group defined extensively by relationships of kinship: one is a human being in that one belongs through relationships of kinship to the 'family of man'. This form of words, which, of course, is also crucial to the recognition of human rights in the Basic Law, contains important implications - important,

66 The Context of Moral Living and Argumentation

precisely, for moral discourses. For, according to it, to be a human being is not defined by the possession of certain powers or endowments, such as language or reflection or consciousness or the like; rather, one is a human being by virtue of birth: one is born a human being. This conception is further reinforced in Article 1 of the Declaration of Human Rights, at least in its first sentence, which is as follows: 'All people are born free and equal in dignity and rights.' Admittedly, this morally far-reaching for­ mulation is straight away withdrawn, not to say ruined, in the second sentence of the Article, which states: 'They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.' Reading this, one will prefer the wording of the Basic Law, which leaves the term 'human being' entirely undefined and indeterminate. With regard to the question of the disabled, and the debate on abortion, the formulation in the Declaration of Human Rights deprives these rights of their moral basis. For neither can it be said of all people that they are endowed with reason and conscience, nor is it advisable to make the state of being human start at birth. Altogether, the formulation of Article 1 seems to conflict with the intuition of the Preamble. For people yet unborn could, of course, be seen as part of the 'family of man'. Equally, through ideas of science fiction, which are probably only anticipations of the future, one is now sufficiently familiar with the idea that beings might exist who are endowed with reason and conscience, and perhaps even with a sentient heart, but are not members of the 'family of man'. And these beings - as was the case with Frankenstein's monster - also lay claim to dignity.

What can we learn from this minimal engagement with argu­ ments concerning human rights? This much, at any rate: that it is important that their basic concepts be indeterminate, and any attempt to give them positive content as individual rights can, when measured against the original intention, prove inadequate. That does not mean, however, that in moral argumentation one should not start out from positively formulated human rights. For the recognition and assertion of these is already difficult enough. But it can be seen that the conventions enshrined in them do need to be developed further through moral discourse, and must be constantly reformulated in the light of new problems which arise historically. Since the Basic Law sketches the basic outlines of our social conception of ourselves, and human rights the basic outlines of our human conception of ourselves, precisely the questions which take issue with these basic outlines prove to be moral questions. Through them the questions as to how we conceive of

The Context of Moral Living and Argumentation 67

ourselves as human beings, and of our society as a society, become a serious matter.

Rights of freedom

Let us turn now to the actual basic or human rights. Here, again, it should be noted that what is of interest from the moral stand­ point is always the undefined content of these rights, whereas their establishment as law represents the permanent form given to the consensus regarding the moral topos in question. Moreover, their formulation as law is, as such, a specification of the consensus, in that a law articulates a claim which is in principle enforceable. The concept of law presupposes an authority before which these claims can be asserted - a judge. But a judge alone would be of no use if nothing resulted from his verdict - that is to say that an executive power is also needed. Thus, in embryo, we already have the state. Now, with regard to the Basic Law it is not surprising that the state is an integrating partner of the fundamental rights, since the Basic Law is, after all, a constitution. As far as human rights are concerned, they simply presuppose the factual existence of states throughout the world and formulate, in particular, which rights human beings should have vis-a-vis these states. It follows from this that one has already decided in favour of or presupposed the state in participating in the formulation of basic moral consensuses as laws. All the same, the state remains a fact and cannot be morally legitimized.51

That the state is a correlative both of fundamental rights and of human rights can also be derived from its historical origin in the course of the French Revolution. Human rights were formUlated as rights of emancipation from the state.52 In general, fundamental rights or human rights are divided into rights of freedom and social rights, to which I would add 'safeguarded goods' as a third area. Rights of freedom are essentially defensive rights vis-a-vis the state, social rights are demands on the state to establish certain conditions of life, and safeguarded goods are demands that the state preserve certain given circumstances and possibilities of human beings.

First of all, the rights of freedom. Of them it is true to an exceptional degree that they are defined in relation to the state or, more generally, the community; they are defensive rights against interventions from outside. The fundamental rights of the Basic Law are largely rights of freedom. Social rights, which take up a

68 The Context of Moral Living and Argumentation

large amount of space in the Declaration of Human Rights, are not so firmly anchored in the Basic Law. I shall list a number of rights of freedom. The Basic Law guarantees:

• the free development of personality (Art. 2); • freedom of religion (Art. 4); • of occupation (Art. 12); • of movement (Art. 11); • of expression (Art. 5, §1); • of science and art, research and teaching (Art. 5, §3); • of assembly and association (Arts 8, 9).

In these rights of freedom a large number of possible activities of the individual are protected from state intervention. Whether the individual wants to be active in these ways is left open, or it is assumed that the individual is such that these fields and the scope of freedom they call for are important. With regard to moral discourse it can be said that the headings of the various dimensions of freedom are moral topoi. They designate fields or possible activities which are essential to the individual's - or, better, the citizen's - conception of himself. For each of them is a field of activity in which individuals create for themselves a public reality. That is especially clear in the case of freedom of expression. Article 5 does not state that everyone can have an opinion, but that they have the right to express it: 'Everyone has the right freely to express and to disseminate his opinion by speech, writing and pictures and freely to inform himself from generally accessible sources' [trans. RJ.]. It might be different in the case of freedom of religion. Article 4, Paragraph 1 states: 'Freedom of faith and of conscience, and freedom of creed, religious or ideological, are inviolable' [trans. E.J.]. Freedom here is indeed the freedom to have a faith of one's own. This becomes especially clear in the case of conscience. For conscience, or freedom of conscience, means that the individual is granted an ultimate preserve in which he or she remains outside state instruction and obligations. That this is not intended merely in the sense that 'thoughts are free' is demon­ strated by Paragraph 3 of Article 4: 'No one may be compelled against his conscience to render war service as an armed combat­ ant' [trans. E.J.]. It should be noted, however, that Article 4, i.e. the freedom of belief and religion, defines not merely a right of freedom but a good to be safeguarded as well. Hence, the term 'inviolable' appears again here.

Taken together, the rights of freedom define the dimensions in

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which the civic individual seeks to express and develop himself publicly, but without the state. In this regard Article 2 is both a summary and a general heading for these rights of freedom: 'Everyone has the right to the free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral code' [trans. E.J.]. It should be noted that this first paragraph of Article 2 does not define a right to education, which would not be a right of freedom but a social right. It appears under human rights, but not under fundamental rights. Rather, the right of free development of the personality is the liberal principle by which the citizens secured a statejree public sphere, that is, society as distinct from the state. This can be seen particularly vividly in Article 12 (free choice of occupation). Here, the freedom in the choice of occupation of Paragraph 1 is combined with protection from obligatory and compulsory work in Paragraphs 2 and 3. In this way the whole sphere of work is made dependent on relationships of social contract. In this, incidentally, one can also discern the historical origin of the basic and human rights, in the struggle for liberation from socage, feudality and serfdom.

It remains to be noted that the rights of freedom contain moral topoi which delineate our conception of the social existence of an individual. Any modification of these rights would be a moral question, since it would require a redefinition of this conception of ourselves; any need to refer to one of these dimensions or topoi shows that one has touched on a question through which matters become serious, in that this conception of ourselves has been affected.

Social rights

As mentioned earlier, social rights are less prominent in the Basic Law than in the Universal Declaration of Human Rights. The reason, undoubtedly, is that the Declaration of Human Rights costs nothing; while it formulates goals and desirable ends, it provides no means of enforcing them before an authority. That would be different if they were adopted in the catalogue of fundamental rights. According to the Declaration of Human Rights, there exists a right to work (Art. 23), a right to social security (Art. 22), a right to education (Art. 26) and even a right to a certain standard of living. Article 25 states:

70 The Context of Moral Living and Argumentation

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circum­ stances beyond his control.

(This right to an appropriate standard of living was again under­ lined in Article 11 of the 1966 Convention of Human Rights of the United Nations.) Of these social rights only the right to education has legal validity, as mediated through the European Convention of Human Rights.53 Most of the others are contained in the Euro­ pean Social Charter, which, however, is only a political declaration of intent, and is not legally binding on the contracting parties.

It is not at all surprising that states, especially those which regard themselves as liberal, do not include social right

' s in their

fundamental rights. For in so doing they would impose on them­ selves material obligations in favour of the individual. But from a moral standpoint, social rights, for which the Basic Law at least declares its support, carry the same weight as the rights of freedom. For they, too, embody contents on the value of which a social consensus can be assumed to exist. Even though they cannot be regarded as fundamental rights in the German Federal Republic, but merely as human rights, they are nevertheless topoi which can be used as starting-points, or reference points, in argumentation about specific social regulations, and particularly laws. Although violation of them - as when our state does not have employment available for everyone - does not call our social conception of ourselves into question (since the Federal Republic regards itself as a liberal society), nevertheless, moral indignation is certainly legitimate, and an appeal to the human right to work politically effective. The case was, or is, different in socialist states, which guaranteed, or guarantee, a legal right to work. Thus, Article 24 of the constitution of the GDR stated: 'Every citizen of the German Democratic Republic has the right to work. He has the right to employment and free choice of employment in keeping with social requirements and his personal qualifications' [trans. E.J.]. But, of course, the GDR did not regard itself as a liberal society, but as a socialist one.

The Context of Moral Living and Argumentation 7 1

Safeguarded goods

I come, finally, to what I have referred to as 'safeguarded goods'. These are values, possibilities or qualities with which human beings are assumed to be endowed by nature, so that their formu­ lation as rights by the state requires that the state provide arrange­ ments for safeguarding them. A considerable number of such safeguarded goods are contained in the Basic Law. Foremost among them is the right to life. Article 1, Paragraph 2 reads: 'Everyone has the right to life and to inviolability of his person. The freedom of the individual is inviolable' [trans. E.J.]. Every possible recipient or holder of fundamental rights does, of course, live, so that no special quality can be ascribed to him by these words. The aim of the article is to formulate life itself as a good worthy to be preserved and protected. This formulation might be regarded as the liberal version of social rights, for a number of measures to safeguard the individual's right to life could, indeed, be expected of the state. In the second part of the paragraph freedom appears as a substantial good. Here, too, a great deal could be demanded of the state if one expects it not only to respect the rights of freedom but to protect the individual from curtailment of his freedom. The qualifying statement in Paragraph 2 shows that, here too, freedom is understood in the liberal sense. For it states: 'These rights may only be encroached upon pursuant to a law' [trans. E.J.]. By comparing this, in particular, with Article 2 of the European Convention of Human Rights, it becomes clear that both life and freedom are understood here as substantial goods in that they can only be withdrawn on grounds of legitimized execu­ tive measures by the state.

The other safeguarded goods are secrecy of postal and tele­ phonic communications, inviolability of dwellings, security, the family, property and recently, according to Article 20a of the Basic Law, the natural foundations of life. We recognize here a number of modern basic values such as privacy, property and nature. The right to security means, of course, outward security, but also, above all, legal security. On this point both the Declaration of Human Rights and the European Convention contain a good number of basic provisions which are intended to ensure security for the individual in legal proceedings, and to protect him against degrading punishments. According to Article 6 the family, through its origin a Roman and Christian basic value, is placed under the

72 The Context of Moral Living and Argumentation

special protection of the state order. The Declaration of Human Rights describes the family as 'the natural and fundamental group unit of society' (Art. 16, §3). With regard, above all, to the topoi of the family and nature it becomes clear that these basic values are regarded in the Declaration as responsibilities of the state. It is the function of the state to protect the natural foundations of life and property, to safeguard legal and outward security and to guarantee the inviolability of dwellings and of postal and telephonic secrecy.

Here too, in the safeguarded goods, we are dealing with topoi which specify goods which are essential to people's conception of themselves. However, they are not actually topoi of one's moral conception of oneself, but rather, in a sense, the preconditions of that conception. 'Grub first, then morals', says Bertolt Brecht. But they are inalienable prerequisites of a life fit for human beings. Moral theoreticians who do not elaborate the morality of the individual in terms of being-human-well, as I have done here, but interpret it rather in the Aristotelian sense of the 'good life', have accordingly paid most attention to this area of what I have called safeguarded goods. In particular, Martha Nussbaum54 has attempted to draw up a catalogue of basic goods. This is, of course, of the highest importance because, from the standpoint of humane politics, a primary concern must be to create the preconditions of a life fit for human beings in the first place. It is therefore right that they, together with social rights, should take up a large amount of space in the Declaration of Human Rights. But, to stress the point once more, their realization is not a moral question, but a political and, in some cases, an economic one.

I now arrive at my conclusion. Fundamental rights and human rights mark out the near horizon for moral discourses. Basic and human rights are the most important of the topoi which can serve as guidelines for conventions for the regulation of social conduct, but are often also the most fragile. Just because they have already been formulated as rights, they can easily be called into question, and can be changed by explicit conventions. On the other hand, although their content is in most cases vague, so that they contain a moral potential going beyond their wording, their wording itself makes them something which can be readily grasped. More long­ standing and fundamental moral conceptions than the fundamen­ tal rights may exist in our society, but it is difficult to appeal to them since they are not explicitly formulated. By contrast, it can be assumed that fundamental rights and human rights are acknowl­ edged by everyone in our society. That they, too, are alterable and in need of revision will emerge, precisely, from moral discourses.

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Newly arising historical problems which bring with them a need for regulation, or a widening of the horizon through contact and coexistence with other cultures, enforce revisions which also affect human rights. For, as we have seen again and again, these human rights, despite their universal claims, are very strongly influenced by European culture and history.