Reasons and Actions

After Europe emerged from the dark valley of the Middle Ages, it retrieved the Greek and Roman heritage and, prompted by the developing markets, proceeded, by fits and starts, to reconstitute itself in the image of civil society, albeit nationally differentiated. The result—let us call it modernity, for short ¹ —may be characterized as follows: ²

Morality is, for the most part, deinstitutionalized. It has become a private matter. The norms belonging to this sphere are effective to the extent that they have been internalized.

Many of the laws governing the activities of day-to-day life—the bulk of commercial law, administrative law, and similar legislation—are de-moralized. They operate as “technical” rules, and like any such rules, they represent externally imposed constraints. They are obeyed because the state enforces them. (In the case of technical rules proper, it is nature itself that makes us obey them on pain of the endeavor’s failure.) Imposition of such laws is legitimized through procedure: the law is valid because it was approved in accordance with a constitution.

But the validity of other laws cannot be established in this manner. They are perceived as conforming to, or contradicting, standards that are either inherent in a nation’s historically developed ethics or have been established in the course of public reflection on the validity of the traditional prescripts, given the relevant aspects of the situation as it “now” exists. ³ Legislation of this description requires assent as to substance, and if the procedural rules of law making are seen as frustrating the expression of public consensus, ⁴ the legitimacy of the political order itself is in question.