soccer players) but to the whole person and her participation in the specific
communication.
8 Luhmann’s approach to morality has been described as sceptical,
stating that ‘the observation of this specific “problem” of the “catchword” morality
leads Luhmann to a critical examination of morality as a somewhat pathological
phenomenon of communication and to establishing a new kind of ethics able to
respond to what may be called the specific conditions of morality in the current
society’.
9 Luhmann’s approach to morality starts off from the functional differentiation of modern society, when morality transformed from the habits of a stratified
society towards functionally distinct subsystems, and could no longer be based on
social customs or religion. Thus, the need for universal morality and ethics needs to
be rethought in modern society instead of referring the question to these earlier
authorities of morality. However, the search for ethics in modern, functionally
differentiated society has proved fruitless, according to Luhmann, as ethics cannot
provide reasons for morality. No universal justification for moral judgments can be
reached, and ethics is left the role of theoretical reflection on the existence of
morality.
10 This means that ethics becomes a question of the diversity of moral
choices, a paradox of the moral communication, where no final answer can be found.
This universal application of morals includes the danger of polarisation, communicational fundamentalism.
11 Thus moral communication is closely linked
with conflict and power, and the escalation of argumentation from which deescalation is difficult if not impossible. This results from the specific form of
moral communication, i.e. moral communication is always symmetric, meaning
that the person who communicates morally commits herself. Hence, moral
communication includes both sides of the code; the person who communicates
identifies with the positive side of the code, with the ‘good’ or ‘regard’ or
‘esteem’, and simultaneously attributes a polarising position to the other side.
This leads Luhmann to consider moral communication as risky, very much like
the bacteria living in human bodies that cause sickness but at the same time have
certain beneficial functions. It follows from this that ethics as a reflective theory
about moral communication is able to reveal why moral positions become overheated, but it does not provide solutions for moral dilemmas.
12
Thus, the demand for better access to justice, or the emphasis on human rights
in general, is a mode of ethical reflection about law. By making claims on the
importance of access to justice we maintain that it is morally right to apply the
‘legal’ side of law’s code instead of the ‘illegal’ in specific situations that concern
the symmetric acknowledgement of a person, i.e. her inclusion in the society.
Human rights discourse is moral (and thus risky) communication about law.
7.1.3 Deconstructing the origins of access to lustice
The question about the nature of morality brings us back to the functional
differentiation of society. Moral communication has previously been attributed
to a specific subsystem of society, namely religion. Structural couplings between
law and religion have existed, as the power struggles between the secular and
divine authorities in medieval Europe demonstrate. The two systems have had
Access to justice 163
communication.
8 Luhmann’s approach to morality has been described as sceptical,
stating that ‘the observation of this specific “problem” of the “catchword” morality
leads Luhmann to a critical examination of morality as a somewhat pathological
phenomenon of communication and to establishing a new kind of ethics able to
respond to what may be called the specific conditions of morality in the current
society’.
9 Luhmann’s approach to morality starts off from the functional differentiation of modern society, when morality transformed from the habits of a stratified
society towards functionally distinct subsystems, and could no longer be based on
social customs or religion. Thus, the need for universal morality and ethics needs to
be rethought in modern society instead of referring the question to these earlier
authorities of morality. However, the search for ethics in modern, functionally
differentiated society has proved fruitless, according to Luhmann, as ethics cannot
provide reasons for morality. No universal justification for moral judgments can be
reached, and ethics is left the role of theoretical reflection on the existence of
morality.
10 This means that ethics becomes a question of the diversity of moral
choices, a paradox of the moral communication, where no final answer can be found.
This universal application of morals includes the danger of polarisation, communicational fundamentalism.
11 Thus moral communication is closely linked
with conflict and power, and the escalation of argumentation from which deescalation is difficult if not impossible. This results from the specific form of
moral communication, i.e. moral communication is always symmetric, meaning
that the person who communicates morally commits herself. Hence, moral
communication includes both sides of the code; the person who communicates
identifies with the positive side of the code, with the ‘good’ or ‘regard’ or
‘esteem’, and simultaneously attributes a polarising position to the other side.
This leads Luhmann to consider moral communication as risky, very much like
the bacteria living in human bodies that cause sickness but at the same time have
certain beneficial functions. It follows from this that ethics as a reflective theory
about moral communication is able to reveal why moral positions become overheated, but it does not provide solutions for moral dilemmas.
12
Thus, the demand for better access to justice, or the emphasis on human rights
in general, is a mode of ethical reflection about law. By making claims on the
importance of access to justice we maintain that it is morally right to apply the
‘legal’ side of law’s code instead of the ‘illegal’ in specific situations that concern
the symmetric acknowledgement of a person, i.e. her inclusion in the society.
Human rights discourse is moral (and thus risky) communication about law.
7.1.3 Deconstructing the origins of access to lustice
The question about the nature of morality brings us back to the functional
differentiation of society. Moral communication has previously been attributed
to a specific subsystem of society, namely religion. Structural couplings between
law and religion have existed, as the power struggles between the secular and
divine authorities in medieval Europe demonstrate. The two systems have had
Access to justice 163