Some Thoughts on Discourse Ethics and Criminal Justice

Discourse Ethics is a proceduralist theory of ethical reasoning that is in the tradition of critical theory and the Frankfurt School. Jürgen Habermas is perhaps the most famous proponent of Discourse Ethics (DE) in the literature. Habermas aims to provide a procedure by which participants in moral discourse can come to an agreement as to what ought to be done in situations of moral disagreement. While DE has noble intentions, it fails to provide a sufficient procedure for moral discourse due to a faulty distinction made by Habermas between the ethical and moral realms (Jaggar and Tobin 2013). DE also fails to take into account the heterogeneity of experiences rooted in oppression (Thomas 1998).

The deficiencies of DE are well explored with respect to cultural differences and similarities (Jaggar and Tobin 2013). However, an unexplored area of deficiency is within particular cultures, rather than intercultural. There are institutions within which the actors in various roles cannot enter into anything resembling an ideal speech situation without losing their respective statuses as actors in those roles. I will explore the institution of penitentiaries in relation to DE, and see if it can provide a framework for viable moral interactions between staff (officers etc.) and inmates. The strength of this approach lies in the fact that it can grant Habermas’ distinction between the ethical and the moral realms, since issues of criminal justice fall squarely on the side of universal principles of justice, rather than questions about the good life.

Habermas’ variant of DE will encounter a dilemma when it is applied to issues of criminal justice, particularly those issues about relations between corrections officers and inmates. The dilemma is: (i) if the ideal speech situation abstracts away from the fact that a participant is an inmate (or corrections officer), then issues of justice for criminals (and the accused) cannot arise on Habermas’s view, or (ii) if the ideal speech situation does not abstract away the fact that a participant is an inmate (and/or corrections officer), then an ineliminable element of power and domination arises, which violates the spirit of the ideal speech situation.

The first horn (i) of the dilemma is problematic for Habermas, because questions of how we ought to treat inmates and the accused  are quite obviously questions of justice, and not of the good life. So, if we abstract away from the fact that some of the participants in moral argumentation are in the role of inmates, then we remove the perspective of those who are necessarily powerless in relation to officers and staff. It could be argued that by removing that perspective, we not only remove the needs and interests of a distinct class of powerless people from the discussion, but we also violate epistemic norms by virtue of assuming that the perspective of an inmate is a mere contingency that does not determine their identity, and as such it can be removed from the discussion when assessing our criminal justice system (Thomas 1998). If, as advocates of DE maintain, the procedure must be applied in real world situations, rather than as a thought experiment, then abstracting away from facts about the situated identities of inmates would not be feasible if moral discourse ought to include issues of criminal justice and how inmates and the accused are treated within penitentiaries (cf. Jaggar and Tobin 392; Habermas 1990).

The second horn (ii) is probably worse for DE, as it would introduce an element of power and domination that isn’t easily eliminated. Power disparities between disputants in an argument can be exploited in ways that those in positions of power may not even be fully aware of (Jaggar and Tobin 388). An inmate, whether guilty or presumed innocent, is in a position of subordination to a class of employees of the institution in which she is housed. Corrections officers have certain powers over inmates, such as the ability to employ pain as a means of control when an inmate refuses to follow orders. Powers such as the ability to coerce through pain (along with legal justification & various signifiers of authority) constitute the role of a corrections officer in the context of a penitentiary. Various obligations generated by one’s position within the institution (along with signifiers of subordination) constitute the role of an inmate within that same context. One cannot abstract away facts about power and subordination without abstracting away the roles themselves. So, an ineliminable element of power and domination/subordination remains in any interaction between inmates and corrections officers. There is no way to escape the power disparity unless one removes the roles entirely, which would be to embrace the first horn (i).

The problematic aspect of (ii) is made more salient by considering what it means to be in custody. A common-sense analysis of this notion involves a certain class of people (corrections officers) having absolute authority over you in certain respects, such as determining where and when you can move, (in some cases) when you can speak and eat, and with whom you can communicate. Inmates have no ability to legally override this authority, and any attempt at insubordination is grounds for (allegedly) legitimate punishment. The very power disparity here between two class of people, whose lives are so intimately bound together, seems to present a problem for attempts at even coming close to an ideal speech situation.

So, it appears as if Habermas’ DE is caught in a dilemma. One horn ends up neglecting a class of persons and their needs/interests, as well as doing epistemic violence to them by virtue of ignoring their unique perspective on social reality. The other horn does not neglect anybody, but it allows a problematic element of power and domination/subordination into a situation that is supposed to replicate (as closely as possible) a situation in which parties to a dispute are on an equal playing field. As far as I can tell, the only way out is to embrace the second horn and hope for a convincing story about possible mechanisms by which we could minimize the impact of the power disparity between inmates and their jailers. However, even such mechanisms can probably never completely eliminate or sufficiently minimize the impact of such disparities. So, we ought to be skeptical about DE’s applicability to real world ethical problems.


Works Cited

Habermas, Jürgen. Moral Consciousness and Communicative Action. Cambridge, MA: MIT, 1990. Web.

Jaggar, Alison M., and Theresa W. Tobin. “Situating Moral Justification: Rethinking the Mission of Moral Epistemology.” Metaphilosophy 44.4 (2013): 383-408. Web.

Thomas, Laurence (1993). Moral deference. Philosophical Forum 24 (1-3): 232-250. Web.


  • John Malato

    I wonder whether Habermas is concerned with just formulating a theory of the unfolding of ethical societies rather than individual interactions.

    Is there evidence that he intends discourse ethics to apply to micro-decisions (individual instances of moral disagreement), particularly within the context of institutions that are themselves subject to macro-level discourse?