Habermas’s discourse ethics is meant to follow from an analysis of the communicative interactions in which “participants coordinate their plans of action consensually.”9 Habermas argues that competent speakers can them­selves tell the difference between their strategic attempts to influence a hearer’s actions causally and their communicative attempts to come to an under­standing with him or her over a course of action, normative principle, or empirical fact.10 In the first case, the speaker tries to influence the hearer’s behavior by whatever means possible, including deceit, fear, manipulation and force. In the second case, a speaker seeks to motivate the behavior of a hearer rationally and therefore must be prepared to justify or give reasons for the claims involved in the speech act offer if challenged. “That a speaker can rationally motivate a hearer to accept such an offer is due not to the validity of what he says but by the speaker’s guarantee that he will, if necessary, make efforts to redeem the claim that the hearer has accepted”11

Habermas specifies three dimensions in which hearers might challenge validity claims. A hearer can challenge a speaker to show the sincerity of a claim or; in other words, that the speaker is accurately representing his or her intentions. In this case, the speaker can redeem the claim only through actions that are consistent with the intentions he or she has expressed. But hearers can also challenge speakers to demonstrate either the truth of the existential judg­ments contained in their speech act offers, or the rightness of the actions or norms of action they propose. In both these instances, the redemption of the validity claims is discursively achieved insofar as speakers must offer reasons for the truth of existential judgments, or the rightness of actions and norms of action that hearers can accept.

What are the conditions of this acceptance? To the extent that rationally motivated assent is distinguished from its strategic counterpart, the discursive redemption of validity claims involves certain ideal conditions that Habermas sometimes refers to as an “ideal speech situation.” The idea here is that in engaging in communication oriented to understanding, participants must make certain presuppositions about the structure of their communication. They must suppose that it excludes all constraints that would produce a forced agreement: constraints such as the threat of sanctions or unequal power relations among the parties to the agreement. Moreover, they must suppose that all participants in the discourse are equally situated with regard to it, that they are free from constraints of fear and force, that they have equal opportunities to contribute to it, that they are motivated only by the concern to come to an agreement over the disputed claims, and that they are open only to the force of the better argu­ment. As Habermas writes, they must assume that “in principle, all those affected participate as free and equal members in a cooperative search for truth in which only the force of the better argument may hold sway.”12

To be sure, actual agreements over claims to truth or to the rightness of actions or norms of action at best approximate these ideal conditions and reflect some of the constraints the ideal speech situation excludes. Still, Habermas insists that the structure of communication oriented to under­standing contains or anticipates an ideal of reason insofar as speakers cannot engage in communicative understanding without assuming the possibility of unforced agreement to their validity claims. Indeed, following Karl-Otto Apel, Habermas argues that if one were to deny that argumentation has this prag­matic structure—if one were to claim that a rational consensus does not depend upon the exclusion of force, the constraint only of reason or the free­dom and equality of participants—one would still have to rely precisely upon this structure in order to argue for one’s denial. One would have to suppose that the denial was itself one that could motivate agreement within a commu­nication community of free and equal participants engaged in a cooperative search for truth and motivated only by the force of the better argument.

As the principle of a discourse ethics, this analysis means that “only those norms may claim to be valid which could meet with the assent of all concerned in their role as participants in a practical discourse,”13 or, in other words, in their role as participants in an ideal speech situation. On this basis,

Habermas introduces a principle of universalization or “U” as a procedure of moral-practical justification: “For a norm to be valid, the consequences and side effects of its general observance for the satisfaction of each person’s particular interests must be acceptable to all.”14 This procedure is not a mech­anism for generating norms or principles of action but is meant to adjudicate the validity of norms that are under dispute. The point is that where disputed norms could not be agreed upon in a practical discourse involving all concerned, then we have to acknowledge what Habermas calls the suppres­sion of generalizable interests.

But what norms could be justified as the possible product of agreement in practical discourse? Does the ideal of universal consensus not ignore the importance of differences in the way different groups within a society or among societies might foresee consequences, understand their interests or, indeed, interpret the meaning of the norms under dispute? In other words, does the ideal of universal consensus not represent precisely the sort of false universalism feminism attacks in both others and itself? Must we assume that there are interests that are generalizable or that only one sort of atten­tion to consequences or one way of understanding our interests or our norms can be rationally justified?

Suppose we explore the current controversy in the United States over the morality of surrogate motherhood or contract pregnancy. If we argue against the enforceability of surrogacy contracts on the grounds that they allow for the sale of babies, we understand the norm at issue to be one that involves the invi­olability and dignity of human beings, the sanctity of the infant-mother bond, and so on. Surrogacy contracts, on this view, violate both the interests of the babies and the interests of those who might be pressured to sell their babies because of poverty, welfare policies, or the like. But we might also argue for the enforceability of surrogacy contracts on the grounds that human beings are free to do what they want with their bodies and that surrogacy contracts promote the equality of women. Prohibiting contract pregnancies, on this view, violates the interests of both childless couples and the surrogate mothers who would like to help them for whatever monetary or altruistic reasons they might have. Is there a generalizable interest here that would tell us whether surrogacy contracts are legitimate or not? And if there is a generalizable interest, with which group does it originate?

On a Habermasian view, this example misidentifies the range of disputes over which a discourse ethics can have dominion in a modem pluralistic soci­ety. “As interests and value orientations become more differentiated in modern societies,” Habermas argues, “the morally justified norms that control the individual’s scope of action in the interest of the whole become ever more general and abstract.”15 The norms under consideration in practical discourse, then, are not specific norms governing legitimate reproductive practices, for example. Rather, they are more general and abstract principles such as those of human rights or the freedom and equality of persons. On the one hand, these are less specific than the idea of contract pregnancy. On the other hand, however, Habermas insists that they are embodied in the legal systems at least of Western societies. For this reason, he argues, they cannot be deemed “irrelevant for the ethics (Sittlichkeit) of modern life”16 even if the sort of discursive consensus under ideal conditions that justifies them is not also applicable to more specific disputes.

But what are the general and abstract norms to which Habermas refers? If we focus on the principles of freedom and equality, it seems obvious that different groups can interpret these principles differently depending on their concerns and interests as well as on their cultural traditions, values, upbring­ing, and the like. For those who support the legitimacy and enforceability of surrogacy contracts, for instance, the meaning of liberty seems to include the right of women to enter into such contracts, while the meaning of equality includes their full social and economic equality with men. Since the right of men to enter into reproductive contracts for the sale of sperm is not ques­tioned, questioning the right of women to enter into similar and enforceable contracts not only denies their freedom and equality, but assumes that they are less rational than men, more likely to change their minds about the terms of the contract, and less capable of either calculating their own interests in an autonomous manner or pursuing them.17 For those who oppose the enforce­ability of surrogacy contracts, however, the meaning of liberty includes a woman’s right to change her mind about as momentous a decision as giving up her child, while the meaning of equality includes the rights of poor women not to be exploited by childless middle-class couples.

Such differences in the way in which we understand the norms of liberty and equality do not seem to be differences that can be transcended through argumentation in practical discourse. Rather they seem to involve differences in sensibility and concern, differences in the aspects of contract pregnancy on which we focus, for example, differences in our understanding of both the value of motherhood or parenting and the characteristics in which we take it to consist, differences in our visions of a good society and differences in the context within which we understand the interests at stake. These, in turn, seem to have more to do with our cultural heritage, experience, and orientation than with the force of reason. Surely we can give arguments for or against our understanding of the norms of liberty and equality that are involved in the issue of surrogacy, but the ability of our arguments to persuade others does not seem to be independent of their values, traditions, and conceptions of the good.

The Habermasian response to observations of this kind is to distinguish between the justification of norms and their application. The assent of all concerned under ideal conditions is meant to determine the legitimacy of norms; it is not meant to contain prescriptions for their application to concrete situations.18 Thus, if the norms at issue in the debate over surrogacy contracts are those of liberty and equality, these norms are legitimate because all concerned could assent to them as participants in a practical discourse, not because all concerned could assent to the way in which they were applied to the surrogacy case. Moreover, Habermas insists that questions of application themselves must ultimately be resolved in terms of well-justified normative principles, “for instance, the principles that all relevant aspects of a case must be considered … and that means should be proportionate to ends.”19

But it is not clear that issues of justification can be so neatly separated from those of application. In the first place, suppose we were to understand our different evaluations of surrogacy contracts as a problem limited to applica­tion, as a difference in the way we think abstract and general principles, on the validity of which we do agree, are to be used to settle the question of the legit­imacy of a practice. Still, what Habermas means by a well-justified applicative principle remains unclear. While we might agree on a norm that stipulates that all relevant aspects of a case must be considered in its adjudication, this norm would itself seem to be meaningless unless we can give some content to the notion of relevance. But precisely here we might disagree. Those who support the enforceability of surrogacy contracts might think that male fears of female autonomy are relevant as well as the motivations behind old adultery laws that were meant to protect men’s interests in establishing paternity. In contrast, those who reject the enforceability of surrogacy contracts might think that they should be understood in terms of the meaning and significance of motherhood and the social consequences of bringing it into the realm of contract and busi­ness interests.

Similar disagreements over the considerations and contexts that are thought to be important would seem to arise in our efforts to decide on the means proportionate to a given end. We can give arguments for why a certain means is proportionate to the end, but assent to such arguments presupposes shared values and a shared understanding of the issues. Habermas claims that the history of a norm’s application moves in a rela­tively stable direction in which we gradually eliminate extraneous consider­ations and come to agree on the way the norm is to be applied. This agreement and directionality, in his view, indicate that “learning processes” are possible in the dimension of application as well as in the dimension of normative justification.20 But if we now apply the norm of equality, for example, so that it no longer supports practices that exclude human beings on the basis of their race or gender, do we do so because we have all learned in the same direction or because, among the multidirectional ways in which we have learned, certain ways have dropped out for complex, value-laden, and cultural reasons?

It may be difficult to separate justification from application, because of considerations similar to those we have already considered. If we are to accept the principle of equality as binding on our actions, we must first understand it. But how can we understand it unless we know what sort of disputes it is supposed to adjudicate and how? In fact, present court decisions (as well as feminist discussions) on the enforceability of surrogacy contracts appear to be attempts at determining meaning. The issue is not simply how we are to apply the principles of equality, liberty, and parental responsibility to the case of surrogacy. It is also how we are to understand these principles themselves or, in other words, what principles of equality, liberty, and responsibility are justified. Are they those that center on freedom of contract, contractual responsibility and contractual relations between independent agents? Or alternatively, are they those that center on the protection and promotion of non-contractual relationships and responsibilities? If our understanding of a norm is not independent of our understanding of how to apply it and if our understanding of how to apply it is not independent of our values and conceptions of the good, then it is not clear that our understanding of the principles of freedom and equality can be easily separated from our interpre­tations and evaluations or from the differences we have about them.

For Habermas, the procedure of universalization in discourse ethics is meant to act “like a knife that makes razor-sharp cuts between evaluative state­ments and strictly normative ones, between the good and the just.”21 Evaluative statements refer to a person’s or group’s interpretations of its desires, feelings, and needs, and these, he insists, are tied to its identity, cultural heritage, and conception of the good. As opposed to normative statements, evaluative statements do not lend themselves to, nor can they be suspended by, the requirements of a consensus that is meant to be universally binding for we cannot simply be argued out of the traditions, forms of life, and personal histo­ries that have made us who we are. In contrast, Habermas thinks that we can take up a hypothetical or distanced attitude towards our norms. But, if any discourse over norms must specify what they are or mean, we seem to be already involved in questions of application that, in turn, engage our evalua­tive sensibilities.

At times Habermas himself undercuts the razor-sharp distinction he estab­lishes by suggesting that our values must themselves be submitted to the universalization procedure of practical discourse. Thus, he argues that idio­syncratic evaluative claims, claims that fail to meet wider community stan­dards, can be simply irrational.22 And he writes that “even the interpretations in which the individual identifies the needs that are most peculiarly his own are open to a revision process in which all participate.”23 As he explains in another context, “Needs are interpreted in the light of cultural values and since these are always components of an intersubjectively shared tradition, the revision of need-interpreting values cannot be a matter over which the individual monologically disposes.”24

But if the revision of our need-interpreting values cannot be a matter over which the individual monologically disposes, why should it be open to a “revision process in which all participate?” Why should all those affected by a proposed norm also participate in the process by which I might learn to understand my own need-interpreting values differently and how can this be matter for rational argumentation? Why not simply admit that normative questions cannot be settled independently of evaluative ones and that norma­tive justification must include an exploration and articulation of our possibly differing values?

If our values are bound up with our cultural heritage and personal life history and if we cannot be simply argued out of this heritage and history and, moreover, if we cannot debate the legitimacy of our norms without engaging the questions of our values, how can we settle questions of the legitimacy of norms? Is the question of whether enforcing surrogacy contracts can be justi­fied a matter of our particular evaluations of the meaning of liberty, equality, and parental responsibility and is any decision on the matter therefore destined to violate the interest and values of some group? It seems to me that if we take our interpretive and evaluative differences seriously and if we reject the idea that the only way of dealing with them is to transcend them through the force of argumentation, then we might allow for a kind of difference that will also help us make sense of what I call a critical and pluralistic feminism.