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Apel versus Habermas: como dissolver a ética discursiva para salvaguardá-la juridicamente

DOI: 10.1590/S0100-512X2010000100005

Keywords: habermas, apel, legal philosophy, morality, the law.

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the connections between the law and morality are the clef de vo?te of law justifying problem. the philosophic preoccupation with those connections is well exemplified in the works of kant, dworkin, alexy, rawls. this paper aims to show the role discursive ethics plays in the foundation of the law, according to habermas' perspective. although habermas had established a cognitivist morality and shown an argument for the principle of universalization, it seemed to have disappeared form his later intent of juridical correction foundation. this accusation, addressed to habermas, was equally supported by apel, kettner and heck. this article intends, especially against apel's point of view, to demonstrate that discursive morality did not disappear, but have just traversed a period of conceptual modifications. indeed, for habermas, morality seems to play a negative role in the law justification process. despite this underestimation of morality, the paper defends the relevance of moral rights for this process, which increases, even more, the importance of the connections between the law and morality in the discussion of habermas' complementarity thesis.


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