In a state of high tension

Between Facts and Norms
October 4, 1996

Politics have always enjoyed a central, if hazy, role in the work of Jurgen Habermas. Unafraid to be a pundit, from acerbic remarks on student revolt to commentary on the "bungled" process of German reunification, he allows an indistinct vision of a free and rational politics into his works in philosophy, sociological theory and "discourse ethics". Between Facts and Norms, which went through four German editions in its first year, massively remedies the deficit, with nothing less than a new philosophy of right.

The question at its centre is foundational for modern political thought, and was vividly posed by Hobbes, although he gets short shrift here, where the tutelary deities are Rousseau, Kant and Hegel. In a world of conflict and diversity, what holds societies together? Habermas's answer is also squarely within the classical tradition: laws constitute social unity.

The German title is Faktizitat und Geltung. Laws have "facticity" in that they "stabilize behavioural expectations": their commands and threats render even citizens who are strangers relatively predictable to each other. This is backed up by a claim for "validity". Laws hope to win the approval of those whom they bind, if not for their particular contents then for the procedures which created them and the grounds for their adoption. Disenchanted sociologists of law and legal positivists are sensitive only to the factual dimension and typically reduce norms to facts; say, about the beliefs of those who obey the law. Philosophical theories of justice, on the other hand, tend to focus on values, neglecting the complexity of social, political, and legal reality.

This is not simply to claim that there are two perspectives on law, such as that of the insider and the outsider. Rather, any sound understanding of law must appreciate that it lies between facts, and norms are amalgamating but not reconciling them: "in the legal mode of validity, the facticity of the enforcement of law is intertwined with the legitimacy of a genesis of law that claims to be rational because it guarantees liberty". Legislation means courts, police stations, and prisons, whose function is to make me follow rules when I would sometimes rather not. So there is a tension between the aspiration to legitimacy, which craves my assent, and what the law necessarily implies.

The tension is traditionally addressed by the claim that assent can be secured at a higher level, for the procedures which produce particular legislation and the constitutional fundamentals which constrain legislation. Yet this does not quite dissolve the tension, for these are themselves legal entities, which challenges us to provide an account of what gives them legitimacy.

Here Habermas rejects the thought that this question might be answered by some philosopher pulling the justificatory rabbit out of the hat. In contrast to his classical German predecessors, he repudiates the notion that the results of a priori deduction may enjoy some special certainty; rather, any account must accept that complex and diverse modern societies harbour many conflicting visions of the human good, none of which holds the key to legitimacy. The obsolescence of general visions in the postmetaphysical world throws us back on the resources of the medium in which we advance and debate our principles and policies, discussion (Diskurs).

In order to illuminate this, he turns to the account of communication which he has been developing for 30 years. The basic idea is that, just as successful linguistic communication requires shared grammatical structures, so it also presupposes certain normative standards. In particular, a fundamental interest in achieving consensus, which Habermas identifies, provides the basis for a view of the rightness of moral norms. The upshot is the central principle of so-called discourse ethics, which has a Kantian ring: norms are only valid when they result from an agreement attained through a process of open discussion of the interests of all involved. Law is not simply a coercive fact, nor is it to be justified by reference to an a priori norm: rather, government can be justified solely through processes of unhampered critical discussion which aim at reasonable agreement.

This view of Diskurs as the touchstone of legitimacy may appear to smuggle in the a priori rationalism which is officially banned, in the shape of the conditions which are set on what counts as a genuine discourse. Certain standards are necessary for discourse, Habermas argues, if we are committed to reaching agreement without force or fraud, such as a range of basic liberal rights to secure personal autonomy, rights to participate in discussion, and the obligation to give grounds for claims advanced. Respect for these constraints, however, merely fulfils a necessary condition for legitimacy; only an actual process of argument issuing in consensus suffices to confer legitimacy on some norm.

This would seem to leave a void at the heart of modern constitutions. How could a discourse issuing in the reasonable agreement of all ever be expected to take place? Habermas's wager is that modern democracies' constitutional arrangements, in the widest sense, contain the resources to shoulder the burden of discursive legitimacy, in that they both respect a sphere of private autonomy and rights of political participation. This does not, of course, mean that consensus on constitutional fundamentals can be expected; only that there are arrangements which make discourse possible.

Habermas replaces the quest for foundations for legitimacy with a reflexive awareness that what is needed are institutional spaces where the nature of legitimate law can be debated. The discourse view provides a framework which can contain the debate between liberal and welfarist paradigms of law, for example, or feminist arguments that the conception of private autonomy in law must be revised.

Habermas fashionably argues for a "deliberative politics", in which rational debate and compromise prevail over the vehement assertion of differing points of view. While he tries to show the discursive principle at work in the operation of legislature and judiciary he accents the importance of informal arenas of public discussion. Not-quite-so "new social movements", such as feminism and ecologism, are rather hopefully cast as havens of independent critical reasoning, counterparts to the 18th-century salon or coffee house.

Some German reviewers airily saw in this analysis the penitence of an old Marxist fellow traveller, reconciling himself to the constitutional state. A shift has undoubtedly occurred: in a previous blockbuster, The Theory of Communicative Action (1981), the state was pictured as besieged by external demands for legitimacy, while here legitimacy is seen as internal to the state's institutions.

Yet the gamble is on a more unsettling and Rousseauan reading of the internal connection between Rechtstaat and discourse: "that in an age of completely secularized politics, the rule of law cannot be had or maintained without radical democracy". It is not only that we are impelled to expand and secure spaces for discourse. It is also that - as the useful appendices, "Popular sovereignty as procedure" and "Citizenship and national identity", particularly bring out - the view of legitimacy promoted by the discursive ideal is impersonal, expressing not the will of a pre-political "people" but the interplay among the social and political foci of discourse.

This emphasis is poignant, since Habermas is plainly troubled by myths of People and Soil. But it is also pointed, gesturing toward the legal and political embodiment of discourse's cosmopolitanism - if not quite at the level of world government yet, then at least in Europe.

In broad terms, this inscription of a tension between facts and norms in the modern state was always the two-step of the left-wing Hegelian, who, on the one hand, ducks the "impotent ought" of a purely moral appraisal of the modern state, while, on the other, uncovers in the state radical potentialities which have not been fully realised.

This is a rich, important, and tangled book, which, although easier for initiates, deserves a wide readership. Proceeding through the magisterial scrutiny of theoretical approaches in law, sociology, philosophy and politics, it offers plenty for students of these disciplines to chew on, however dry or contentious it may be; but it is not a procedure which promotes lucidity. At the same time, it is not difficult to feel that the tension between the openness of the discursive ideal and the dismal reality of sound-bites and state power may simply be too great to make Habermas's wager a good bet for the rest of us.

Matthew Festenstein is lecturer in politics, Hull University.

Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy

Author - Jürgen Habermas
ISBN - 0 7456 1229 6
Publisher - Polity
Price - £45.00
Pages - 631

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