A relação de cooriginalidade e de complementaridade entre a Moral e o Direito na Teoria Discursiva do Direito de Jürgen Habermas

This paper aims to address the relationship of complementarity and co-originality between Law and Morality from the perspective of Jürgen Habermas's Discourse Theory of Law and Discourse Ethics. First, the formal pragmatic analysis of communicative rationality and practical rationality in post-metaphysical thought will be introduced, as well as post-conventional justification and the validity of moral norms oughtness. Then, the cognitive content of morality will be outlined through the elaboration of the principle of universalization (U) and the principle of discourse ethics (D). The co-originality will be discussed in the sense that the Principle of Democracy is derived from “D.” The complementarity relationship will be examined based on how Morality, in light of the Principle of Universalization (U), provides normative content in terms of universalizable reasons to Law, while Law addresses its cognitive, operational, and motivational deficits. Positive law and post-conventional morality are thus the main mechanisms of social integration in modernity, as they permeate the structural components of the lifeworld. Finally, the relationship between these mechanisms should be one of complementarity; otherwise, Law, which is known to be constituted in the tension between facticity and validity and, therefore, always mutable, risks losing its capacity for social integration and expectation stabilization.