13.

Moral Norms

Moral Principles and Moral Norms

“Norms” are standards or measures, according to which something ought to be done or not
done, and they lay claim to validity, an expectation of compliance. Norms are concerned in each
case with a class of actions, a kind of action: they are universals by nature.1 Moral norms are
standards relating to the accomplishment of human actions, according to which accomplishable
types of actions are identified as “good” or “bad,” as morally right or wrong. In a certain sense,
practical reason is itself a norm, because it is a measure. And practical principles are equally
such. But when we are speaking about moral norms we are nevertheless placing ourselves within
the point of view of the observer: we are looking at human actions from “outside” as it were.
This means that a discussion about moral norms is really a discussion about the making of moral
norms—or “norming” [Ger. Normierung]—for human actions by way of practical principles, a
perspective that is not identical with the perspective of “norming” the morality of an action in the
perspective of actually carrying it out.
We should recall that the practical principles that we identify as the lex naturalis are true
principles of praxis. Practical principles are cognitive principles of movement—since praxis is a
kind of movement—which are not only inward, but actually constitute this subject as an acting
subject. That is, without practical principles we wouldn’t act at all. Practical principles in this
sense form a component of the “organism” of the practical reason. “Norms,” by contrast, arise
from discourse about practical reason. Norms of action or moral norms, consequently, are not
really principles of praxis, but only principles of discourse about action, principles of judgment
concerning the governing of praxis. In this sense they are principles of ethics. As principles of
the normative discourse about praxis they then become practical principles themselves, once
recognized by the practical reason as norms and habitually possessed in the form of moral
knowledge.
The concept of the “norm” was originally taken from the terminology of ancient architecture
[Lat. norma, “plumbline,” “T-square”], and was introduced into legal language by Cicero. The
word took up definitive residence within the realm of ethics thanks to the Enlightenment
preference for juristic concepts. The word is here to stay in ethical philosophical discourse, and
at any rate the problem is not in the word but in the interpretation of the concept. Discourse
about moral norms takes its point of departure on the level we characterize as “moral
knowledge”: the level of reflection upon action. The “normative proposition” belongs to this
level, and that means propositions in the mode of “ought.” Such propositions, we have already
explained, always have a linguistic structure. They are the reflective-linguistic formulations of
principles.

1
It seems inappropriate to understand requests, orders, permissions, and empowerments as being norms as well—
that is, all linguistic formulations in which expressions such as “must,” “ought,” “may,” “right,” “good” and “bad”
occur; cf. N. Hoerster’s article, “Norm,” in H. Seiffert and G. Radnitzky, eds., Handlexikon zur
Wissenschaftstheorie (Munich: Ehrenwirth, 1989), 231.
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 Consequently, the norm has a dual nature: rooted in practical principles, it reflects them, and
gives them linguistic expression. With norms we can speak about human actions from a “third-
person” perspective. Even though moral norms are a linguistic phenomenon, they possess a
natural transparency both to the practical principle that lies at their foundation and to the virtues
that correspond to that principle—they are an expression of “the good for man”— and only on
the basis of this transparency can the norms themselves be understood and interpreted. This is
because moral norms and practical principles are not fundamentally different: what differs is the
point of view from which the same structure of reason is being considered.
Moral norms as an expression of “the truly good for man” formulate the “rules of the game”
for success in human life; they are also the linguistic medium through which human beings make
sense of these rules. This is true, despite the fact that social, historical, cultural, and even
individual contexts— the current ethos—also opens up the possibility for a certain plurality of
concrete norm making.
It is quite possible that, in various cognitive contexts—each one being culturally mediated
and provided with a corresponding ethos—the identical practical principles can lead to different
socially recognized norms of behavior. A typical example would be certain norms that govern
the respect and love that children have for their parents that can lead to practices that would
appear shocking to us.2 In fact, the morality of specific ethnicities and groups can provide
examples of how identical moral principles such as the golden rule, the prohibition of murder,
formation of solidarity between generations, respect for property, and the like can find an
expression at the level of the concrete ethos that vary and in part contradict each other.
This is not to equate morality with culturally conditioned relativism, as if, for instance, the
Indian caste system could embody the principle of justice no less than a society of Western type
based on freedom and equality. Differing forms of ethos in no way have to be valued equally, or
considered as if they were all to the same degree in accordance with human dignity, and in this
sense as equally true in their praxis. Likewise it is not necessary to maintain that they are all
equally suited for realizing moral principles that are in themselves identical, since an ethos often
realizes certain moral principles at the cost of others.3 Various cultures or configurations of ethos
in their variety as such demonstrate, rather, the universality and astounding transcultural
invariance of moral principles, which is expressed in a concrete way in each ethos.
Moral Norms and Legal Norms

The logic that characterizes human action and practical reason is logic of the recognition of
principles and of virtues with their intentional structure, articulated through principles.
“Normative formulations” can have a different meaning, depending on whether they are the
linguistic expression of the order of moral virtue, or whether they are the positive-law rules of
rational behavior. The latter are familiar to us as traffic laws, tax laws, codes of behavior, rules
of procedure, the criminal code, examination rules, and so on. In general, one can say that the
expansion of the modern state and bureaucracy has molded the concept of “norm” into “legal
2
Cf. the interesting chapter on “Cultural Relativism” in H. Arkes, First Things: An Inquiry into
the First Principles of Morals and Justice (Princeton, N.J.: Princeton University Press, 1986), esp. 148ff.
3
In Muslim countries, the practice of polygamy originally had the function of providing a form of solidarity to
isolated individuals, especially women who were widowed as a result of war. The polygamous family is thus a very
significant social welfare system. But this is achieved at the cost of other moral principles relating to the community
formed by married couples, and not least the principle of the equality of man and woman (as an example, one need
only think of resulting institutionalized dependence of women on men).
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regulation,” in terms of which we are inclined to interpret the phenomenon of moral norm as
well, and thereby miss the meaning of this other reality and distort it.4
What is the logic of a regulation of positive law? Let’s take the case of a norm of justice in
the area of tax regulation: the rightness or appropriateness of an action falling under this norm is
measured on the basis of its agreement with the norm and the purpose (distributive justice), for
the sake of which the norm was established. This means that the norm itself here constitutes or
establishes the justice or reasonableness of certain actions to be carried out in accordance with
justice. In this sense the norm “makes a norm for,” or “norms” [normiert] actions. This is most
clearly seen in traffic regulations: what is right and reasonable is action that corresponds to the
norm or the regulation, and is so because and to the extent that it thus corresponds to the norm.
And this is the case because the norm itself is justified by a certain purpose or utility. If the norm
did not exist, there would be no universally valid standard for the corresponding rightness of the
action.
It can happen, however, that a concrete action, falling under a norm by being subsumed
under that norm, contradicts the very purpose for which the norm was established. In this case
epikeia is needed, that is, one makes an “exception” by acting against the rule literally, in order
to reach the purpose and the meaning of the rule.5 The application of the rule, in other words, is
suspended for reasons of being faithful to its purpose, and exactly the purpose for which the
norm was set up in the first place, so that the norm is fulfilled not to the letter but in spirit.
This is the logic of legal norms and codes of conduct. It should not be forgotten that many
positive-law norms formulate immediately moral norms, and this just because of a public interest
in their maintenance. But there are ethical theories that apply the above-described logic of
positive-law norms or rules in a fundamental way to the phenomenon of the moral norm—for
example, so-called rule utilitarianism. In utilitarian theories, moral norms in principle only have
the function of placing a certain action under a rule, because behavior according to rule is
considered to be the behavior that on the whole leads to the best results. Norms are not looked at
here as an expression of the good, but as right or wrong, rational or irrational, according to
whether the outcome of following the norm is desirable or not. For utilitarians who are
consistent, the action of “saying ‘thank you’” is not an act of retributive justice, but a means to
encourage people to do good in the future, and the appropriate norm for this would have to do
with making sure this purpose is accomplished. By utilitarian logic, it is wrong to sacrifice
innocent persons to appease an angry mob not because it would be an act of injustice in itself,
but because it would undermine the ability of the penal system to function—and only for that
reason. Norm-utiliarianism provides a fundamentally inadequate interpretation of the
phenomenon of the moral norm.
Modern utilitarianism, as founded by J. Bentham, also originates from an interest in an
efficient legislation for the social order. A fundamental norm-utilitarianism is represented by the
position of Thomas Hobbes, which has become so decisive for the modern philosophy of society.

4
Such a distortion is also present in the concept of moral norm as a certain form of social norm, which in turn is
understood as a sanctioned social claim; this is approximately what Tugendhat maintains, in “Drei Vorlesungen über
Probleme der Ethik,” in Tugendhat, Probleme der Ethik, 57ff. In criticism of Tugendhat, Ursula Wolf has attempted
to bring back the point of view of the good life, in the tradition of “Enlightenment morality”; cf. U. Wolf, Das
Probleme des moralischen Sollens (Berlin: de Gruyter, 1984). Cf. also Tugendhat’s “Retraktationen,” in Probleme
der Ethik, 132ff. On Tugendhat from a discourse-ethical or “cognitive” perspective, see J. Habermas, “Diskursethik
—Notizen zu einem Begründungsprogramm,” in Habermas, Moralbewusstsein und kommunikatives Handeln, 78ff.
5
Cf. II-II, q. 120, a. 1.
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The distinction between “just” and “unjust” is only based on normative differences in positive
laws, that is, only to the extent that there is a coercive power to legislate.6
Actions are judged just or unjust according to their agreement with the legal norm. But the
legal norm in turn is only legitimized through its efficiency in guaranteeing peace. The real heart
of Hobbes’s theory is a working out of the logic of the normativity of positive legislation, and the
governmental monopoly of power needed for it. At the same time, however, Hobbes also (and
mistakenly), subordinated the logic of all moral normativity in the sphere of justice to this.
Ethicists who understand moral normativity according to the model of legal normativity are
either extreme legalists and conventionalists, or—going to the other extreme—they treat moral
norms merely as “artifacts,”7 as a kind of exonerative institution or device, as rules of thumb that
can be completely overruled. The opposite position, on this basis of understanding norms, is then
branded as legalism—whereby a legalistic understanding of norms is more often to be met with
on the side of such revisionist “antilegalism.” Of course, according to these thinkers norms are
not simply arbitrary: for they emphasize that human action is subject to natural and social
conditioning and factual constraints, in the midst of which the arbitrariness of human action is to
be rationally governed by norms (in any case no further norms can be formulated to limit the
arbitrariness involved in changing such constraints). But this rationality is nevertheless such that
it treats norms as constitutive rules for rationality or for the moral rectitude of actions. Norms are
rational here only because and to the extent that we attain something good with them. And
morality—as the following of such rules or norms—then possesses no other purpose but to reach
this goal. “Moral conduct” here must itself once again be justified as useful.
But moral norms and their rationality are really not constitutive rules at all. The constitutive
rule for the rectitude of human actions is rather practical reason, insofar as it—primarily “by
nature”—reveals what is good for the human being and what are the corresponding types of
intentional action.
Moral norms are then merely subsequent linguistic formulations of the principles of
practical reason, that is, the order of moral virtue, which is an order and structure of rationality,
which in turn is related to types of intentional action and continually brings human identity to
expression. So, then, moral norms, as distinct from legal norms, lay claim to satisfaction because
they express how a certain kind of behavior belongs to a virtue or is opposed to a virtue—and
thereby opposed to human nature.
When we “follow” a moral norm, we do not follow a purposeful rule; instead, we carry out
the act of a virtue, that is, we intend and choose a particular aspect of what is good for man, of
what is appropriate for myself or others, of what is just, and the like. The expression “to follow a
norm” is only a way of speaking about this: in reality, we do not speak about norms, we only
speak in a normative way about virtues; in reality (if we are fairly typical human beings), we do
not follow rules or norms, but choose and carry out good or bad actions.

6
Cf. T. Hobbes, Leviathan, chap. 15.
7
The term comes from W. Korff, Norm und Sittlichkeit, 9.
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