Copyright (c) 1998 First Things 82 (April 1998): 52-55.
Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. By Jürgen Habermas. Translated by William Rehg. MIT Press. 680 pp. $42 cloth, $25 paper.
Reviewed by David M. Rasmussen
Most people concede that liberalism has fallen on hard times. Even though modern political philosophy finds its basis in a liberal paradigm, that paradigm has begun to fade. Indeed, many of those who consider themselves part of the classical liberal tradition have begun to take seriously criticism of the tradition offered by modern communitarians, classical republicans, and traditional conservatives. One can see evidence of such liberal rethinking in Jürgen Habermas’ important recent book Between Facts and Norms.
Habermas, who has had a long and controversial career as postwar Germany’s most prominent public intellectual, has produced a most ambitious and comprehensive work. Between Facts and Norms offers an original reconstruction of the philosophy of language (drawing on the author’s earlier Theory of Communicative Action), a theory of jurisprudence, an understanding of constitutional theory, reflections on civil society and democracy, and an attempt to construct a new paradigm of politics that goes beyond, without discarding, the liberal tradition.
At the heart of the book is a reconsideration of the relation between the philosophy of law and political theory. Law, Habermas says, is the primary medium of social integration in modern society. Law, in the first place, is power: it is a coercive instrument, linked with violence, that extracts obedience and common behavior from its subjects because of its claim to the power of enforcement. But power alone does not grant law its legitimacy. It is also based on a normative claim. In modern society, law derives its validity from consent, the consent of the governed. Habermas exposes the tension between the sheer facticity of the law and its normative claim to validity.
The tension, Habermas says, has developed from the modern process of secularization. In traditional society, established institutions could represent a fusion of facticity and normative validity, a link sustained and reinforced by sacred authority. In secular modernity, however, as social differentiation leads people to distinguish between forms of social interaction—in this case, a distinction between legal coercion and law derived from mutual understanding—law emerges as a mode of integration stabilizing the separation between facticity and normative validity. Whereas traditional institutions represented a fusion of facticity and normative validity, in modernity mutual understanding replaces authority as the mechanism for mediating the spheres formerly regulated by habit and custom.
Some critics will argue with this purely secular view of the role of law. They would like to reestablish, in some fashion, the sacred authority that has been usurped by modernity. While not denying the claims of law, they would want to anchor those claims in a morality derived, at least in part, from that sacred authority. From this point of view, Habermas would still seem to be operating in the shadow of the classical liberal paradigm that derives the authority of the society from the authority of the individual. But it would be mistaken to dismiss Habermas’ view as simply another expression of liberalism’s faith in individualism, the unencumbered self, and egoistic autonomy.
Critics have been uncomfortable with liberalism’s conception of law as rights, contending that liberals establish the rights of individuals without regard for the good of society. Liberals, it is said, think of individual rights as pre-political. Thus the modern conception of human rights is dissociated from the aims of society, resulting in a separation between rights and responsibilities. The liberal conception can justify rights against society, but it cannot justify obligations to the public realm. From this, critics charge, follows the decadence of modernity: public morality, social responsibility, even the motivational foundation for public democratic action must be sacrificed at the altar of the liberal conception of human rights.
Habermas contends that the liberal tradition has misunderstood the nature of the argument for human rights. This argument has to rely on something other than rational autonomy; rights have to have a source of legitimacy. If they are pre-political, derived solely from the nature of philosophical argumentation, they function independently of the political process. Habermas’ solution is to rethink the relationship between law and politics with respect to human rights. Private and public autonomy, he argues, are co-original. Private autonomy provides for the rights of the individual. Public autonomy signifies what Europeans often call popular sovereignty or public will-formation. In the American context this would refer to "We the People," or the consent of the governed. Habermas argues that we should understand human rights as "the rights citizens must accord one another if they want to legitimately regulate their living together by means of positive law." Departing from the tradition outlined by Kant and Rousseau, Habermas refrains from deriving rights from subjective liberties. Human rights, rather, are political from the outset, in the sense that they are derived from the intersubjective relations of citizens who would grant those very rights to one another through consent.
Habermas’ co-originality thesis makes a definite accommodation to the classical republican attempt to anchor the claims of law and politics in a social, and not purely individual, context. It meets the criticism concerning the liberal dissociation between rights and responsibilities. There remains, however, the question of precisely what this reformulation of rights through the body politic means.
Here we return to Habermas’ view of law as the modern mechanism for social integration. In his Durkheimian reading of the evolution of modernity, traditional authority is replaced by new, more democratic forms traceable to the emergence of complex communicative modes of social interaction. Of course, this is the point many critics of liberalism will not buy. They will want to retain those more traditional forms of life, whether religious or secular. However, in doing so they too will have to come to terms with modernity, with its insistence on plurality, diversity, and toleration. The question is whether traditional authority can be reasserted in the context of other traditions.
Both Habermas and his critics would affirm that law cannot be separated from society. The question then arises of the appropriate image of society with which law is to be associated. In the final chapter of Between Facts and Norms, Habermas makes the case for law as viewed through the deliberative paradigm. It is the argument for the deliberative paradigm that we now discover, late in the book, has been operating, in good Hegelian fashion, behind our backs from the beginning. As we know from Thomas Kuhn, paradigm shifts occur only when a governing paradigm begins to lose its power of explanation. As we discover now, from the historical perspective the liberal paradigm has been losing its power ever since the so-called welfare state began to emerge on the scene. It was only when the needs of the welfare state superimposed themselves upon the liberal paradigm that the latter began to lose its power, perpetuating a legal "crisis."
In Habermas’ view, as the categories of formal law tailored to preserve the rights of autonomous individuals gave way to the social needs of the large bureaucracies generated by the welfare state, the claims of liberal individualism were undercut. The rights of individuals as individuals could be either suppressed or subordinated to the needs of the welfare state. The social-welfare paradigm "materialized" rights in such a way that the categories of freedom and equality as understood in the liberal paradigm were marginalized. Given the central thesis of the book, one could anticipate the critique: "Both views lose sight of the internal connection between private and civic autonomy, and thus lose sight of the democratic meaning of a legal community’s self-organization."
In this view, what is left out in arguments between classical liberals and welfare-state advocates is an adequate consideration of the role of law. Habermas insists on the circular relationship between private and public autonomy. Here he invokes his deliberative paradigm. The first principle of that argument is that the autonomy of citizens and the legitimacy of law "refer" to each other. In Habermas’ view, in a "post-metaphysical world . . . the only legitimate law is one that emerges from the discursive opinion and will-formation of equally entitled citizens of a state." Put practically, the exercise of private autonomy can be granted only by legitimating acts of public autonomy. Private and public autonomy reinforce each other.
Habermas further accommodates his critics on the role of law by making a distinction between ethics and morality. In a modern pluralist culture, he argues, normative issues should be separated from issues of the good life. Thus, for example, the contextualist claims of communitarians would be allowed to stand as ethical claims. Only when various ethical traditions come into conflict with one another, as they inevitably do in a modern pluralist culture, do normative issues arise that have implications for everybody. In Habermas’ deliberative paradigm, law stabilizes society, but only through the universal voice of democracy.
Critics of liberalism should read Between Facts and Norms if for no other reason than to discover how far their arguments have come, even among those of liberal inclination, in influencing the modern discussion of the relation between law and politics.
David M. Rasmussen is Professor of Philosophy at Boston College and Editor-in-Chief of Philosophy & Social Criticism. He is the author of Reading Habermas (1990) and the editor of The Handbook of Critical Theory.