Crime Talk and Discourse Ethics : Exploring the Possibilities and Limits of a rational foundation of security morals

By Dr. Thomas Albert Gilly

 

Abstract

Performing scientific statements and explanations about crime is the paradigmatic destiny of criminology. This paper addresses the nature and various aspects of the paradigmatic turn that is involved in the transition from modernity to late-modernity. The impact of the communication rationale upon security achievement and regulation is discussed regarding both democracy’s security and legality and democratic security building. The limits of the rational foundation of security ethic norms and the limits of the normative competence of a moral outworker of the law are discussed within the framework of Discourse Ethics and with  regard to the fundamental elements of democracy.

The question of  when the rational establishment of universally and objectively valid security ethic of a democratic, pluralistic and rational discussion damages the security of democracy’s fundamentals is central to this paper.

 

Key words: communicative rationale; security; normative versus ethic conception of security; democratic security achievement and security of democracy.

 

 

PROLOGUE

 

During the last few decades security came rapidly to the fore of the public debate. The changing of the crime paradigm into the security paradigm is analyzed as the process that supplants criminology’s scientific competence in crime matters, which is traditionally the paradigmatic competence by that of other disciplines and scientific settings. Simultaneously this extraordinary concentration of scientific competence is increasingly paralleled by the less rational and more cognitive competence as it is involved in the public security debate.

This parallel holds for the transition of scientific monism to the dualism that consists of the opposition between the scientific and the communicative rationale.

The study of the communication rationale is extremely relevant to the fight against crime and the prevention of unsocial and/or asocial behavior. This relevance is clearly demonstrated by the paradigmatic shift that brings  “Communicative Risk Theory” to the fore of the scientific debate about crime and security (Gilly & Asenova: 2007; Iliev 2006). This relevance is not central to this essay.

Rather is it the exploration of the communicative rationales ability to be founded in reason and the rationale’s predisposition towards the setting of universally and objectively valid security norms. Such norms may positively impact security and security achievement in modern democracy. The question whether and to which degree such a normative competence is compatible with the security of the fundamentals of democracy is central to normative ethics.

That said, the communicative rationale is not only highly relevant for security and crime prevention, it is also relevant for the demonstration of the inherent and normative limits of the rationally founded normative competence which is exercised by an outworker of democracy’s legality.

Suppose that the code that governs that competence is “Discourse Ethics”…. 

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I

INSTEAD OF AN INTRODUCTION

Let’s talk about “Crime Talk”

 

 

 

It has long since been argued that the transition from modernity to late-modernity has had a sensible impact upon crime and criminal policy issues.

Jock Young (2003), in “Democratization and the Creation of Monstrosity: Late Modernity and the Dynamics of Social Exclusion” comments the issue in a highly eloquent way:

 

“The transition from modernity to late-modernity is clearly recognized and paralleled by a whole gamut of social commentations from all parts of the political spectrum...  The mechanism of this transition and the policy implications are of course, fiercely, debate ″ (2003:593)[i]    

 

 

Here is neither the place to provide for an in depth study of the transition’s policy implications; nor is it the place to take part in the controversial debate about the pros and cons of the transition’s implications. Rather, it is useful for our purpose to produce only one example that is sufficiently eloquent about the controversy and, at the same time, heuristically rich enough to introduce the issue that is central to this essay.

Sir Leon Radzinowicz reflects:

“What I find profoundly disturbing, Sir Leon argues,  is the gap between  criminology and ‘criminal policy’, between the study of crime and punishment and the actual mode of controlling crime…;The stark fact stands out that, in the field of criminal justice, in spite of the output of criminological knowledge, a populist political approach holds sway” (Radzinowicz 1999:469).

 

It is likely that not all criminologists and not all criminal justice experts would agree with Sir Leon Radzinowicz’s diagnostic. One might indeed argue that politicians and governments are well aware that scientific knowledge about crime and criminal justice issues is more than ever before needed to face and to successfully take up the challenge that consists of decision-making in a world of crime complexity and global security threats. However controversial such a diagnostic may be, the disappointment has provoked criticism. According to David Garland and Richard Sparks, Sir Leon Radzionicz’s disappointment is to be interpreted against the background of the criminological culture that has been dominant in the middle years of the last century.

 

‘It follows at least some of the intellectual strategies and institutional assumptions that served earlier generations of criminologists well have becoming less appropriate today. As we will discuss in a moment, the social changes of the last few decades have already prompted a rethinking of the assumptions that were characteristic in the middle years of he century when academic criminology first developed as a specialism. But some of our most contemporary habits of thought also need to be reconsidered’ (Garland & Sparks 2000: 191).

Accordingly, that culture is largely the tributary of its time. As a prisoner of its time criminology, according to these two authors, was condemned to fail to recognize the complex social problem into which crime developed during the last decades and

 “has become much more difficult to contain with the traditional bounds of criminological analysis” (Garland & Sparks 2000: 199), which escapes from the criminological domination and domestication and which constraints criminologists to re-invent their science as a

“figure that is located in other contexts and fields of institutional settings”

The shift of crime talk’s focal center from criminology’s traditional institutional academic setting and specialization towards other contexts and fields of institutional settings, either scientific or not is central to “Criminology, Social Theory and the Challenge of Our Times” (2000: 189-204), For Sparks and Garland the process holds for the paradigm turn that requires the re-conceptualization of criminology which re-conceptualization is outlined by the authors as following:

The important instance of criminology’s re-conceptualization is

“the opposition between (i) a criminology that is interested in social and political theory, in reflexive sociology of criminological knowledge and in the testing or transgressing of disciplinary boundaries and ii) a criminology that has empirical bite and strategic relevance – is an opposition that can no longer be sustained.”

And further on…

“Criminology now has an opportunity - and a responsibility - to engage public discourse in order to address a central issue of our time.  If it is to do so, it must understand the terms in which these wider debates and discussions are being discussed and how crime and crime control feature within them. It must also develop self-consciousness about its intellectual assumptions and its social situation, about all about its links to government and to culture. Criminology’s fate is to be re-defined by the political culture of which it forms a part. If it is to play a role in shaping its own future then understanding that political culture will be an important first step” (Garland & Sparks 2000: 202).

 The paradigm-shift that consists of the process that supplants the academic and highly specialized scientific crime discourse as it has been traditionally inherent in and characteristic of criminology by that of a multi-dimensional crime-talk involving other scientific disciplines but also people who are increasingly concerned about crime and crime control is, according to Garland and Sparks, to be translated, at the level of criminology’s paradigm, as the shifting from reality to self-observation science, a process which

”take[s] place in parallel with sociology’s re-readings and reappraisals of the contemporary relevance of its founding or ‘classic’ texts (see Sparks 1997, Turner 1996)”.

 

Historically, the shift of crime talk competence from the criminological and highly specialized, though a uni-disciplinary explanatory discourse on crime towards that of the multi-faceted and multi-disciplinary community of experts and laymen developed simultaneously with the invasion, by security issues and concerns, of the traditional discourse with crime and criminal justice as its major concerns.

The circumstance that security came rapidly to the fore of the scientific and public debate does not implicate that crime has become irrelevant or that is has been dissolved entirely in security. Rather it means that security holds for a new quality of crime which consists of crime’s increasing complexity. And this complexity can not be reduced to crime, though crime remains central to it[ii].  

 

Therefore, “crime talk’s” paradigmatic use is best demonstrated at the level of the security debate. Such a viewpoint hardly fits with the interpretation proposed by Sparks and Garland where “crime talk” is genuinely used in order to conceptualize an epistemological and deontologically highly relevant paradigm turn which is associated with the re-conceptualization of criminology. Such a re-conceptualization can hardly be issued against the background of and with reference to a security debate which is under the suspicion of “moral rhetoric” and penal conservatism ( Sparks & Garland 2000: 20)[iii]   

 

As it will be shown later in this essay the shift from the original context of “crime talk’s” paradigmatic use towards security does not necessarily preclude the epistemological and deontological use of the paradigm;  

This parenthesis being put aside, the following observations come as support for security as the paradigm’s best incarnation;

The more security came to the fore of the debate, the more the boundaries of the traditional institutionalized academic specialist discourse became weakened, and the better the old crime talk competence, with its underpinned nostalgia for the scientific monism faded away and dissolved into the patchwork of diverse communities’ and other institutions’ competence to demonstrate concern about security issues. The motto that is central to this process is that security is the major concern of all citizens and consequently requires the participation of all camps of the political, social and economical life, from institutional representatives and political leaders to practitioners and theorists, either specialists or laymen, scientists or not.

Terrorism is the best example; community safety and policy, and more recently issues of corruption come in addition

On the other hand, but simultaneously, the dissolution of the old boundaries that traditionally held for the disciplinary identity of social sciences culminated into the building of a new, extremely rational and highly specialized interdisciplinary rationale of scientism.

The threat of nuclear, biological and chemical terrorist attacks is no longer a utopia. Given the extent of the catastrophe, considering the linkages between terrorism, organized crime and money laundering, there hardly need to tell that the old scientific monism is out of time. And the old division of scientific work is no longer relevant either for CT.  CT in our times comes no longer under the competence of this or that scientific discipline, of this or that setting of expertise knowledge.

To face and to take up this challenge there is need to develop both the melting pot of disciplinary expertise and the innovative concept of quality policing for anti-crime and anti – terrorism that lives on knowledge and thought exchange and transfer.

This said the paradigm (turn engenders a process that goes in two opposite directions:

(i)                      Increase of the scientific rationale by means of diversification and differentiation (as result of the dissolution of scientific monism into pluri and interdisciplinary knowledge exchange and production). Development of scientific monism by means of diversification and differentiation of scientific competence

(ii)                    Decrease of the scientific rationale by means of the public security debate’s involvement of all social agents, either experts or laymen. Gradual substitution of the communication rationale for the scientific rationale.

In the first case “crime-talk” holds for the shift of the scientific rationale from the mono-disciplinary explanatory crime discourse towards the multi-disciplinary security debate that do not live any longer exclusively from the explanatory rationale of science.

In the second case “crime talk” holds for the shift of the scientific rationale of crime (- talk) towards the communicative rationale.

Incidentally this second paradigmatic use of crime talk is also relevant to (i) in this that the building of the multi-disciplinary and inter-disciplinary knowledge exchange and production requires for communication and that the construction of the matter that is to be scientifically studied varies as a function of disciplinary identity.  

What have these two examples of crime talk’s paradigmatic use to do with discourse ethics?

 Discourse ethics might be relevant to the first of the two cases in that the multi-disciplinary security debate requires the development of ethics that is aimed at defining both the rules and modalities that shall govern the communication between different and often opposite scientific communities and the content of the debate (in regards to priority and ability to be scheduled in common). “Discourse ethics” hold for the epistemology and deontology of the multi-disciplinary security debate. The epistemological use of “discourse ethics” is not the paradigmatic use of discourse ethics as it is developed in Habermas’ Moral Consciousness and Communicative Action. Incidentally this paradigmatic use plays a role in this that the establishment of a deontological code that shall govern the multi-disciplinary debate requires the rational foundation of objectively valid deontological norms that are accepted by the universal scientific community. This assumes that the inherent precept of “Discourse Ethics” – the universal validity of ethical norms – is relevant in this only that it applies to the scientific community only.  

“Discourse ethics”, in this second case, is involved in that the communicative rationale, because of its various components (rational, cognitive, cultural, moral, psychological etc;) is genuinely predisposed to be discussed within the framework of Habermas’ Discourse Ethics, simply because the establishment of universally and objectively valid ethical norms is highly relevant for the security debate that lives from that rationale can be thought as of security morals / ethics.

The rational foundation of security ethics norms raises the problem of a normative competence which is different from and may be even the opposite of the normative competence of the law.    

In the following we will focus on the problem of the normative competence.

The shifting from crime to security implies not only that the legal crime notion looses its exclusivity with regards to the impact upon crime talk but also that it tends to give up its former primacy upon the material crime notion. Another important consequence is that the genuine normative nature of the legal crime talk, which has its limits in the definition of the offences and the sanctions and which come under the exclusive competence of the law-maker, is more and more paralleled by the rationale of a talk that, contrary to the legal crime talk that lives basically from prescriptive norms, rather refers to and is rooted in descriptive norms, which come under the competence of politicians, media, experts and laymen and is increasingly aimed to select and define the major security concerns and priorities as of those descriptive norms.

  It follows

(i)                      that the explanatory criminological crime discourse, which is a rational discourse and which refers to the legal crime talk that lives on prescriptive norms is more and more underpinned by the not so rational security talk that is rooted in descriptive rather than in prescriptive norms;

(ii)                    that the normative rationale of the legal “crime talk” (legal definition of offences and sanctions) and of the talk competence is paralleled by the communicative rationale of public security talk and by a talk-competence that comes under the competence of people who communicate, not under the competence of the legal norms.  

As far as this competence of communicating people covers the selection and the definition of security concerns, this competence presents a normative character[iv] 

 As it arises basically from descriptive norms and collective experience and as it is aimed to select and to define what people believe is good or bad, positive or negative for their security, such a competence can be thought as of ethics in that descriptive norms refer to custom and habit (which is the original meaning of ethics according to Aristotle) and the question of what people believe is good or bad for their security is, by definition, a case for descriptive ethics. The opposite is the normative competence of the legal “crime talk”.

It follows that the security talk that stems from the communication rationale is capable to produce norms that are relevant to security ethics. It follows furthermore that this normative competence might coincide with the competence of the law. Such a concurrence can be thought as of complementary or as conflicting.

The question of the nature and the quality of communication rationale’s normative competence upon the normative competence of the law is central to this essay. And it is clear that the question of how the former impacts the latter is extremely relevant to democracy.

Suppose that the security talk’s ethics are susceptible to be founded in reason, that they are capable of rational foundation. At first glance this hypothesis is contradicted by communication’s intrinsic rationale. And yet the project that is aimed to establish universally and objectively valid ethical norms (that are rooted in reason) is central to Habermas’ Discourse Ethics.

The more security ethics norms are predisposed towards universalization and rational foundation, the better the concurrence turns into a conflict between the genuinely normative nature of the validity of legally defined and protected security concerns, on the one hand, and the rational nature of the validity of security norms that are elaborated by an ethical outworker of the law, on the other.

Incidentally, the question of universally and objectively valid security ethics norms impacts that “moral rhetoric”[v] which, according to Garland and Sparks and many other observers from the left is characteristic of the actual security debate. It’s not to be one thing or the other:

(i)                       The more security ethics (morals) are susceptible to be universally and objectively valid (rationally founded), the better security morals demonstrate that they are capable in banishing the rhetorical temptation.

(ii)                     The more security ethics norms’ are predisposed towards the ability to be objectively and universally valid the better is demonstrated the ideological ambiguity of “moral rhetoric's“ inherent criticism and the actuality as well as the originality of a security debate that lives on universals and reasons rather than on moral rhetoric.

The question of when democratic and pluralist security norms’ setting and achievement begins to damage the security of democracy’s fundamentals can be raised only with reference to the communicative rationale that is involved in Discourse Ethics. And it is this question, and this question only, that announces the limits of the rational foundation of security ethics and of Discourse Ethics relevance to democracy’s security. The fundamental problem that is raised consists of the limits of the rational foundation, conceptualization and legitimization of democracy’s normative and axiological fundamentals.

On all these accounts, the question that is central to this essay is to be discussed against Discourse Ethics.

 

 

 

II

HOW DOES THE SOCIAL AND MORA OUTWORK OF UNIVERSALLY AND OBJECTIVELY VALID SECURITY NORMS IMPACT THE FUNDAMENTALS OF DEMOCRACY? THE CASE OF “PARTICIPATIVE DEMOCRACY”

 

 

 

·        Parallelism

The more the norms of the security ethics are predisposed towards their universal and objective rational validity, the better is the chance for the legitimacy of legal security achievement (by means of crime definition, repression and prevention) to be paralleled and eventually contradicted by the legitimacy of norms that are worked out by an outworker of the law.

• Law making accountability. The doubled legitimacy and the rise of democracy’s material signifier

In modern democracy law-making comes under the exclusive competence of the legislator. It follows that such a paralleled legitimacy or even collusion can never engender the transfer of the legislative competence from the law-maker to outworkers of the law; and it can not result in the division of law-making competence either. It is rather that the law-maker becomes increasingly accountable to the sociological, philosophical, political, moral and even media – expert and non expert- outworkers of security norms and for the legal norms he has created. This observation, of course, is valid under the condition that the growing importance of outworkers of the law and of settings that are unquestionably not necessary for and not essential to the existence and functioning of modern democracy is sufficiently demonstrated to be considered with regard to the inherent settings of political decision-making and law-making and with respect to the formers’ impact upon the latter.

 The law of the majority is essential to modern democracy. Insofar as the think-piece of a set of accountability that comes in addition to the legitimacy of both the institutions that, in modern democracy, have the power to make the law and to govern  and the actors (representatives) who are designed to exercise this power by virtue of the law of majority is irrelevant to the fundamentals of modern democracy. Governance in modern democracy comes under the exclusive expertise of the government. The same observation applies to law-making that comes under the exclusive expertise of the law-maker. When law-makers and governors become increasingly accountable to citizens, experts and laymen, to NGOs and media for what they do and for the way they act, then it is not because the logic of modern democracy would require such behavior, but rather because they feel obliged to be accountable for law making and governance, either for personal, cultural or structural reasons or simply because political decision making and law-making, in late-modernity, has increasingly come to the fore of the extra-institutional politics’ and crime talk.

The impacts of this trend upon the fundamentals and practice of modern democracy might be approved or disapproved. Anyway, the law of majority which is the basic rule of modern democracy is likely to be doubled, constantly questioned and increasingly policed by the democratically highly controversial, though increasingly popular theory and practice of democracy’s material signifier. The more popular and developed the culture, the better the chance for that culture to cause trouble to the inherent rationale of modern democracy:

The constitution of objectively and universally valid norms defining security priorities and regulating security by means of a more direct and participant democratic process might cause serious troubles to the legitimacy of the law, particularly to the legal guarantee and protection of the security of persons and goods in this that the norm of the former scheme are legitimate by virtue of reason and elaborated against the background of social facts and problems whereas the latter are legitimate by virtue of democracy’s legality; their legitimacy is rooted in the auto-referential nature of democracy’s legality. In our times where the crisis of the representative democracy goes hand in hand with the increasing denial of law and justice in public opinion, such alternative schemes risk to become much more attractive to the collective feeling than the traditional one.  

However controversial it might be with regards to democracy’s fundamentals, the think-piece’s relevance and actuality are demonstrated by the circumstance that the neologism of “the participant democracy” has become politically correct. And this “political correctness”  fact is that the call for the “participative democracy” echoes around a whole gamut of trends that have developed during the last decade – from community – policing and minority security achievement up to cultural criminology, alternative criminal justice; mediation schemes, and the call for community law.

 

• The paradox: democratic security achievement in the name of universals

With regard to the constitution of universally and objectively valid security ethics norms, all these trends, paradoxically, go in the opposite direction, though echoing the call for the participative democracy and the impact of democracy’s material signifier upon the public and criminological debate. It could be that all these trends, by going in the opposite direction, demonstrate the limits of either the foundation of security ethics in reason or of the proceeding and regulation of the constitution of universally and objectively valid security norms. Maybe the problem is simply that this opposite direction that – however suitable or critical it might be, is underpinned by the come back of ethno-centricity and community, demonstrates accordingly the spirit of post-modernity that universals in general and universal security ethics norms are out of time

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• Global Security and universals

Given the precept that global security threats require global security achievement and responses, the problem that is raised that must be seriously discussed in both cases is the twofold: To which degree the norms which define the fundamentals of global security and regulate global security achievement are susceptible to be universalized (incidentally to which extent the universal validity is rooted in reason)? And is global security achievement the suitable response to global security threats?

 

• Testing the universal and objective validity of the modalities and the ethical contents of legally performed security concerns that are fundamental to the values of democracy.  Reason and ethnicity

One thing is to explore and to test the rational foundation of security ethics that are elaborated within the frame of extra-legal communication; this is the project’s major aim. Once they are established, these norms either support, contradict or complete the legal security provisions. Thus, they are highly relevant for the law-making process.

Another thing is to apply the test of security ethics norms’ ability to be universally and objectively valid (as it is required by the rational foundation) to the modalities and the content of legal security achievement and regulation (persons, interests and goods); this aim comes in addition. The test of universalization, in this second case, implicates that the existing legal norms only are questioned about the universal and objective validity of their ethical contents. Incidentally, the test might produce effects that go in the opposite direction of the project’s basic objective foundation of objectively and universally valid norms of (security-) ethics, with the consequence of the project’s deconstruction. These risks happen when the test-result is negative, in other words when some or many of the existing legal security provisions, namely those that are fundamental (defined / perceived as) concerns regarding the values of democracy, can not be universalized in accordance with the rationale and process of Habermas’ Discourse Ethics (pretend to be universally and objectively valid by virtue of reason through lack of consensus) and when the lack of consensus, in a second phase, is discussed and empirically studied within the framework of the socio-professional, economical, cultural and ethnical profile of those participants in the discussion who have demonstrated their disagreement.

That said, the second step is nothing but a working hypothesis. It follows that the difficulties that are inherent of such sociological research program are not to be discussed here. This observation applies in particular to the inherent difficulties of scientific methods that are aimed at the establishment and definition of those criteria with reference to which it is possible to distinguish between social-economical, cultural and ethnical profiles.  Instead, let us only suppose that it can work ant that such a test is possible.

• Dissent by virtue of unequal security achievement

It could be that specific social groups do not accept the way in which the law provides protection to this or that specific security concern, though agreeing with the contents of the legal norms. As far as inequality is objectively involved in legal security achievement, the lack of consensus can never demonstrate disagreement with those legally protected security concerns that are central to the values of democracy. Rather, the social-economic, cultural and ethnic background of the discussants who have demonstrated their disagreement might constitute the basis for a better, more equal security achievement and favor the development of social-prevention schemes.

 

 

• Dissent about legally protected security concerns that are central to democracy. 

But it could be also that specific social or ethnic groups do not accept the validity of basic legally protected security concerns that are central to democracy, in which case the highly democratic and pluralist rational constitution of ethically relevant and objectively valid norms as it is characteristic of Habermas’ scheme is to be questioned regarding democracy’s security itself. In other words, the problem that is raised consists of the question at what point and to which degree the democratic and pluralist discussion about and establishment of security norms might damage democracy’s security? Should basic legally protected security concerns that are central to democracy be defined and accepted as universally and objectively valid norms through lack of global consensus?

 

• Democratically and pluralistically established security norms: A threat to democracy?

If so, there is need to set and secure normatively such objective and universal validity, contra the social or ethnical groups which have demonstrated their disagreement and pro those social groups which have demonstrated their agreement. Principally, such a scheme is incompatible with Habermas’ project. Not only because the latter requires global consensus[vi]. But also because the former implies a preferential choice that, to produce effects, can be issued by means of normative constraint only. Norm foundation and establishment by means of discussion and global consensus is, apart from the constraint of rational proceeding, free from all sorts of constraint. The same observation applies to the vertical structure of norm constitution and validation that is involved in the other scheme. Interestingly enough, the problem that is raised here has been fiercely debated in the field of international law., wherein the traditional “normative” conception (Oppenheim 1905/1906), by referring to Grotius, provides for a vertical (security) order, whereas a more communitarian conception, by referring to Kant’s “Project for a Perpetual Peace”, provides for a horizontal order based on inter-action (Delmas-Marty 2003:13-25; 2002:1915-29)[vii]  Obviously the controversial debate is also relevant to homeland security.

 

III

FROM REASON TO VALUES. THE LIMITS OF THE RATIONAL FOUNDATION OF THE COMMUNICATION PARADIGM

 

• Does ethnicity affect Discourse Ethics internal logic?

The problem gets worse in the following case. Suppose that the disagreement is the  (scientifically established)  fact of a specific ethnical group and that this disagreement concerns not only one or even two basic legally protected security concerns that are central to democracy, but several of them. Given the rationale of Habermas’ universalization, the reiterated demonstration of non-acceptance by that specific ethical group can never be the witness of the substitution of ethnicity for reason, under the condition, of course, that the interpretation refers to and is performed against the background of the internal logic of the scheme. This means, in other words, that it never implicates that reason as universalization’s topic has been supplanted by that of ethnicity, simply because it is the project’s  aim to overcome and to clear up ethnicity and ethno-centricity by means of universals that are founded in and established by reason. 

It follows that the reiterated demonstration of disagreement, theoretically and accordingly the internal logic of Habermas’ scheme can neither demonstrate the ethnical alienation or the ethnical transfiguration of reason as universalization’s basic topic, nor can it be the means to support the political discourse that advocates, in a manner that has become increasingly popular, the issue that specific ethnical groups are less predisposed towards democracy than others. Again the inherent rationale of Discourse Ethics precludes such interpretation schemes in this that it lives from the precept that each of all discussion participants, regardless to his/her ethnicity, culture, social and economical statute, is capable to engage in the rational process that consists, for each of all participants, of the consequences and secondary effects of the norm’s universal observation upon the satisfaction of the interests of each of all, and of the choice to accept them rather than to accept the consequences and repercussions that are involved in other options

• The impossible rational legitimization of legally protected security concerns that are central to democracy

But this assumes that, according to the inherent logic of Discourse Ethics, the social or ethnic group of discussants who accept the universal and objective and rational rooted and motivated validity of legally protected security norms that are central to democracy has no legitimacy to be considered more than the other, to be preferred and to impose the norm’s universal and objective validity. Simply because the criterion of reason applies always and per definition to the other, so that there is no privilege with regard to the criterion.

One and perhaps the most important and radical consequences is that it is no longer possible to consider, define or talk about security concerns and norms as issues central to democracy. Such a quality can no longer be legitimated with reference to reason, simply because the refusal to accept the universal and objective validity of basic legally protected security norms that are central to democracy might be and, in practice, probably is associated with the will to accept and with the acceptance of the universal and objective validity of security ethics’ norms that might cause damage to or even effectively offend or annihilate not only those that are central to democracy but also and in the final analysis the fundamentals of democracy, though such norms can pretend to be perfectly legitimate from the rational viewpoint and though such threats, however obvious and plausible they might be, are devoid of any rational roots and legitimacy.

•  Democracy’s fundamentals are never to be discussed

The paroxysm reaches its peak with the rational legitimization of democratically veiled anti-democratic or totalitarian security norms - a highly rational, though contradictory, ethically and politically inadmissible consequence. The political relativism that is involved in this highly rational think-piece, of course, it is a matter of discussion. But the fundamentals of modern democracy are not to be discussed, though reason is involved and the discussion’s talk-master, simply because the fundamentals of democracy are to be thought as of precious values, not as of reason and because reason as a means for democratic norm foundation and achievement might engender the perversion of democracy.  The same observation applies to basic legally protected and achieved security concerns that are central to democracy.

• From reason to values. The shifting of universal’s focus.

The following critical observation comes into addition:

Incidentally, the discussion of this issue has shown that different ethnical groups might accept the universal and objective validity of security ethics” norms that are (thought as of) central to democracy, though they accept them in an opposite way. And we have seen that each of both positions is perfectly legitimate from the rational viewpoint and that such an opposition is rooted in and founded by reason (in accordance to Habermas’ rationale). If all people are supposed to be capable to engage in a rational discussion and if they are supposed to be able to do this regardless of their membership to ethnical or cultural groups, which issue implicates their equal predisposition towards reason, the circumstance that people, despite their equal predisposition towards reason, demonstrate the opposite opinion about what is central to democracy is necessarily rooted in opposite schemes of reasoning.

Reason, according to the logic of Discourse Ethics, can not be the reason for the difference in reasoning; rather is it, according to the topics that are central to our think-piece, ethnicity and culture.

It could be that a particular ethnic group reasons in this way rather than in that way for several reasons. The way of reasoning might be rooted in the inherent habits and custom of this ethical group. The second reason consists of the observation that the particular way of reasoning is determined by the social and economical status of such a ethnical group, in which case that group reasons in this way rather than in that way because the members of that group are socially and economically excluded citizen.  Another possibility is that the two factors play a role with one another, interact with one another or are confused. However, the reasons that might explain the issue do not affect the fact that particular ethical or social groups are likely to reason in this rather than in that way[viii]. And this is the important point, and it is the only one.

This said, the observation that reasoning, according to Habermas’ Discourse Ethics, is reasoning about risk and holds for the –however rational- evaluation of risk comes as a support. After all, one might argue, risk is a culturally and ethnically rooted issue. Others might privilege social and economical conditions. Crime culture and crime cultures are empirically relevant issues that came rapidly to the fore of the public and criminological debate. Why should this observation not be valid in regards to risk-culture and risk-cultures that might vary as a function of ethnical and cultural diversity?

But this means that reasoning is an issue that might vary as a function of ethnicity, culture, and ethically and culturally determined collective experience. This does not mean necessarily that reason can no longer be thought of as universal; rather, it means that the validation constitutes a serious threat to the practical impact of the universal we call reason; 

To the amazement of the most certain defenders of the project, the following question is to be addressed:

Given the opposite interpretation of what is a security concern that is central to democracy, and considering the rational roots of that opposition, couldn’t it be that reasoning  is depending upon culturally rooted and ethically determined experiences? And if so, isn’t there need to shift the focal center of communication’s relevance for the exploration and foundation of norms that are relevant to security ethics from reason to values?

As far as values are thought of as substitutes for reason and as far as they shall be the means to reach exactly the same goals that are assigned to reason (in accordance to Habermas’ project), the shift from reason to values implicates that the issue of normative settings for value achievement becomes central to the debate.

 

• Human Rights

As far as the issue of human rights might be considered central to such a debate – and effectively it can be considered as central to the debate[ix], the challenge – perhaps the most important of our times, that is to be faced and to be taken up consists of engaging in a fundamental debate about the need or opportunity to establish normative settings that are aimed to protect human rights’ universal validity against the risk to be abused by particular interest groups and for particular concerns. And the question from when on the exercise of human rights constitutes a threat or even an offence against its rationale is of course central to this problem. 

Obviously this central question can not be resolved independently from another one: Does the exercise of human rights presuppose democracy? At first glance the answer is negative. The right to live in freedom not in slavery or dictatorship and the right to express one’s opinion are issues which are foremost relevant for people who do not live in democratic societies. The more is manifest the weakness or lack of democracy the better is obvious human right’s relevance to such aims.

Therefore, the exercise of human rights does not presuppose a democratic environment. But the inherent rationale of human rights presuppose the concept of democracy in this that the exercise of human rights refers always to democracy and can never be the means to reach another goal than that of democracy. And it can never be the means to establish a value system that is based on human being’s contingency either. Another reason comes as support. It consists in pointing at democracy as the unique and only one political condition under which the law can determine the limitations of human rights’ exercise. Article 29 can be interpreted this way[x]                            

 

[xi]There is hardly a need to point to the relevance of the preceding observations to the question: At what point might the exercising of human rights constitute a threat or even an offense against human rights’ rationale. That said, the issue is important enough to be fiercely debated.