Habermas: Between Facts and Norms
By Agustín José Menendéz
Habermas′philosophy of law can be seen as a major attempt at building
bridges between the normative and the empirical approaches to democracy and to legal
theory.
On the one hand, he builds upon a refined theory of society, which he draws
from his extensive sociological work. Thus, he takes seriously the different problems
associated with modernity and post-metaphyisical thinking. Among the many
resulting tensions, we can think about the opposite claims derived from the the
processes of differentiation of social subsystems (e.g. money, administration, law) and
the expectations of justification of all power structures, derived from the loss of a
background consensus based on traditional sources of integration (like a homogeneous
morality, etc...).
On the other hand, he endorses a strong normative dimension, based on
reflection upon the pragmatic presumptions involved in linguistic interaction. The
famous linguistic turn leads to an analysis of the claims of truth, authenticity,
sincerity and normative rightness which communicative action implies.
The use of these two perspectives and its application to legal theory is
reflected in Between Facts and Norms, a book which has become a major focus of
attention since its publication in 1992, and its subsequent translation into several
languages1. Habermas′opening paper of the conference was intended to summarise
some major arguments from Between Facts and Norms (hereafter,BFN)2.
A basic component of his legal theory is his analysis of the relationship
between law and morality 3. On the one hand, law is to be considered as a functional
complement of morality. Modernity has destroyed social homogeinity, and thus
weakened the background consensus around traditional morality. Now being rooted
only on individual conscience, it cannot is more a factor of disintegration than of
integration. Modern law emerges as the only alternative source of social integration. It
institutionalises morality by means of reducing uncertainty about what is prescribed
to do and by means of offering incentives for compliance which can complement
individual deficits (ranging from individual akrasia to the lack of reinsurance on the
compliant attitude of other subjects of law). On the other hand, the fact that law is to
be seen as an institutionalisation of morality explains that we have to describe law as
impregnated by morality. Its role and position towards morality open law to a
continous questioning on its legitimacy on the side of legal subjects. Because it
institutionalises morality, it cannot be a mere matter of decision, a mere social fact. At
the same time, if law is to fulfill its role in the process of social integration, it must be
autonomous from morality, its validity must be different from that of morality. If that
is not the case, then law will simply reproduce the uncertainties of moral
1 English, Greek, Spanish and French editions are already available.
2 In fact, it can be considered as a new and richer version of similar attempts in the 1994
postcript to BFN and his article Paradigms of Law, published at 17 Cardozo Law Review771-84.
3 Such relationship is exposed at lenght in his Tanner Lectures and further considered in BFN.
2
argumentation and its promise to serve as the only available cement of plural societies
will remain unfulfilled. From this double observation derives the consideration of law
as an autonomous complement of morality, and the discrepancy with Alexy′s special
case thesis regarding legal argumentation4
Law has can be seen both as an instrument of authority (as a tool for the
exercise of administrative power) and as the only remaining cement of society, whose
integrating role is closely associated to its normative legitimacy. That is the reason
why an adequate legal theory is placed between facts and norms.
A major contribution of BFN is his attempt at easing the tension which exists
between freedom and equality, between individual rights and popular sovereignty, or
in different but quite equivalent terms, between private autonomy and public
autonomy. After revisiting the insights of major political theorists like Rousseau or
Kant, Habermas offers his theory of the co-originality of private and public
autonomy. Modern law is seen as the grammar which individuals have resort in order
to organise themselves in a political community. Within such context, human rights are
seen as those rights necessary to institutionalise the procedure of democratic selflegislation,
and both elements are dependent on each other. On the one hand, without
human rights we could have no institutional framework under which individuals could
make use of their rights to public autonomy. On the other hand, the concrete content
of the rights to private autonomy is something which must be decided by the people
themselves, in the exercise of their public autonomy. Public and private autonomy will
thus be co-original.
The co-originality of private and public autonomy leads to a reconsideration of
the sources of legitimacy. For those who stressed the primacy of private autonomy,
legitimacy was located on the recognition of individual rights. On the contrary, those
who claimed the primacy of public autonomy considered that legitimacy resided on
some form of popular sovereignty. Habermas argues that the locus of legitimacy is the
intersubjective process of discourse, that is, in the communicate structures.
Legitimacy resides in the discoursive process of opinion- and will- formation.
This claim is associated to epistemological role which he envisages for
democratic processes. Habermas endorses what he names as "weak cognitivism". It
implies that the truth of moral statements is not based on their correspondence to
some external empirical reality (as strong cognitivism claims), but on the
intersubjective consensus of ideal discourses. Only such non cognitivist position is
able to give a satisfactory account of the practice of moral justification.
Habermas′position is complemented by the claim that real deliberations which come
close to respect of the pragmatic assumptions of communicative action have an
epistemological privilege in the access to best reasons. Thus, we can claim that
democratic procedures constitute the legitimate form of decision-making.
Finally, BFN includes an understanding of the evolution of modern law through
the description of two different "legal paradigms" (the formal and the material ones),
or complex legal theories which included an image or metaphor of the role of law and
the character of society, complemented by the forging of an alternative (the procedural
paradigm) by Habermas himself. Such paradigm stresses the basic insight of discourse
4 Cfr. paragraph 4.
3
ethics: the idea that in modernity, the only available source of legitimacy is related to
deliberation in the public sphere.
The first session of the seminar was devoted to moral truth. The two
discussants, Ota Weinberger and John Finnis, offered criticisms towards the moderate
cognitivism which Habermas has endorsed. Both of them discussed problems involved
in the intersubjective conception of moral truth. Weinberger was sceptical about the
inbuilt tendency towards truth of deliberative discourse and towards some of the
alleged pragmatic assumptions of linguistic communication. Finnis stressed that
consensus under ideal discourse is only a mark of truth, and drew a distinction
between monological and solipstic moral argumentation. The former constitutes an
alternative source of moral knowledge if fair and adequate attention is given.
Weinberger stressed that legal validity is not an objective feature of valid law, but a
valuation based on presupposed political convinctions, which are not open to
conclusive argumentation.
Professor Weinberger opened up the first session with his paper on "Legal
Validity, Acceptance of Law and Legitimacy". It contains both remarks on
Habermas′general conception of moral truth and on his analysis of legal validity.
Weinberger challenges Habermas′ intersubjective conception of truth. On the
one hand, he is very sceptical about the inbuilt tendency of discourse towards truth.
The "collectivisation" of argument through discourse is likely to bring new issues to
the attention of most participants to such discourses and also to check the validity of
some claims, and as such it is very valuable for democratic decision-making. But there
is nothing that insures us that the outcomes of discourse constitute a mark of objective
validity. On the other hand, he argues that the question of what constitutes valid
reasons is not further elucidated by means of having resort to "ideal discourses". Not
only the conditions which make a discourse "ideal" cannot be fulfilled, but they
distract us from the many difficulties involved in real discourses, like the influence of
fixed opinions, ideologies or propaganda. Finally, the author challenges some of the
pragmatic assumptions of discourse advocated by Habermas; he doubts whether
raising a claim always implies the duty to justify it, or whether the "interpersonality"
of language is to be traced back to discourse or to complicated process of generation of
linguistic tools.
Next, he briefly considers Habermas′Kantian functional explanation of law in
BFN, which he finds too narrow. Against the assumption of law′s main function as
establishing the conditions for the coexistence of each person′s freedom with the same
freedom of all other people, Weinberger sees law′s functions going beyond the
insurance of equal freedom, and extending to questions of corrective and distributive
justice, etc... That is, he offers a more complex picture of the functions of law.
Finally, he considers Habermas′theory of legal validity, which he describes as
an uneasy combination of sociological (which correspond to the dimension of
acceptance, or what is the same, the fact of social assent to the law) and critical criteria
(which correspond to the dimension of acceptability, or ′real′validity of legal
arguments). After remarking that there is some confusion in BFN on what concerns the
distinction between the validity of the legal system and the validity of concrete norms,
4
he concludes that because all critical valuations are based on political convinctions, and
thus cannot be fully proven (neither through logical proofs or through arguments of
plausibility), legitimacy cannot be an objective feature of valid law.
"Natural Law and the Ethics of Discourse" is the paper contributed by
Professor Finnis. It constitues an attempt to show that we can find an alternative
conception of discourse ethics rooted in the natural law tradition, and more
specifically in the works of Plato, Aristotle and Aquinas. According to the author,
such tradition is a superior alternative to the discourse ethics of Habermas and many
like-minded ethical constructivists.
The natural law ethics of discourse starts by challenging the intersubjective
conception of truth, and replacing it with a cognitivist reference to moral insight.
Though it acknowledges that consensus, if obtained within certain framework of
conditions can be seen as a mark of truth, it is not to be taken as constitutive of truth.
Moreover, we do not need to enter into collective forms of deliberation to have access
to moral truth, because it is already available to individuals which are willing to give it
a "fair and adequate attention". The ultimate source of moral truth is to be found in
the "reasonable order of the soul and society". It is this "natural" element which is
open to moral insight on the side of those who are "reasonable".
A further criticism corresponds to the incorporation of sociological
conceptions to Habermas′legal theory. On the one hand, the move away from
intersubjective conceptions of truth makes Finnis attentive to the distinction between
sound and succesful argumentation, the latter being based exclusively on the success of
argumentation, on social assent on the premises. On the other hand, he is very critical
towards the acceptance of moral pluralism as a fact of modernity, which in
Finnis′opinion leads to many confused distinctions, not based on any justification.
The distinction between the moral and the ethical, between the right and the good, is
seen as an unjustified acceptance of the unargued moral pluralism, leading to a
fragmentation of practical reason and to the acceptance through the back door of
welfarist calculation within Habermasian theory. Finnis resorts to
Habermas′arguments over abortion on Reply to Critics5 to illustrate the many pitfalls
of his conception.
The second session was devoted to legal argumentation. Professor Alexy′s
paper moved forward the well-known dispute between Habermas, Günther and Alexy
over the status of legal reasoning vis a vis general practical reasoning.Though both
authors share the idea that legal argumentation is related to general practical
discourse and at the same time is distinct from it, they disagree on the
conceptualisation of these elements of commonality and difference.
The paper by Robert Alexy reinterprets the differences which exist between
Habermas′and his accounts of legal argumentation. Though both of them argue that
there is something in common and something different between general practical
5 Cfr. 17 Cardozo Law Review 1477-1557.
5
discourse and legal reasoning, they conceptualise in different terms the differences and
the similarities.
Alexy starts by arguing that Habermas′denial of the special case thesis is based
on a quite peculiar understanding of general practical reasoning, and thus in a wrong
understanding of what is common between the two kinds of discourse . For Habermas,
general practical discourse can be equated with morality, whose contents are
determined by the principle of universalisation. If that were so, it would be clear that
law is more than a special case of general practical reasoning, because the scope of the
latter would be really limited. However, it is possible to characterise general practical
reasoning in a different form. Alexy claims that it includes, along with moral reasons,
also ethical (i.e. those related to the collective self-understanding of a given political
community embedded in traditions and strong evaluations) and prudential ones (i.e.
those concerning the suitability of means for realising certain goals, and also for
balancing interests and compromises). Furthermore, he offers an account of the
relationships between these sorts of arguments. Two principles are to be considered.
First, a principle of a priority, which will establish some hierarchical relationships
(precedence of moral over ethical arguments, of the latter over prudential ones).
Second, a principle of permeation, which will introduce an element of complexity by
showing that the formulation of some hierarchically prior arguments depends on
hierarchically inferior ones (for example, that the question of what is right cannot be
fully determined without considering what is good, and so on).
The second difficulty is associated with how both authors understand the
distinct character of legal discourses. Though both agree that law cannot be equated
with general practical discourse because it presupposes a legal system which is
essentially authoritatively fixed or determined, many differences remain. Habermas
claim that judicial adjudication cannot be considered as somehow regulated by general
practical discourse, and that the solution of hard cases depends on what Günther has
defined as the sense of appropiateness, involving the careful consideration of all
relevant arguments and circumstances. Alexy feels uneasy with such characterisation,
and considers that a more satisfactory account is found in his special case theory.
He claims that legal and general arguments are combined at all levels and
applied jointly. On the one hand, that is due to the fact that law is not closed as a
system of reasons. The open texture of legal norms renders untenable its claim to selfsufficiency.
Its operture towards general practical discourse is due to the fact that, as
we saw and Habermas conceeds, law institutionalises general practical discourse. That
implies for Alexy that legal reasoning brings forward a claim to correctness, though
one which takes into account the institutionalised character of law. Any legal solution
claims to be a correct solution, given the framework defined by the legal system. Such
claim brings a critical dimension within the law itself. On the other hand, the
permeation is based on the fact that the positivisation of arguments from general
practical discourse cannot be seen as divorcing them from the framework of general
practical discourse. While Habermas is of the opinion that the move from one sphere
to the other implies that the principle is furnished with "a new mode of validity",
Alexy doubts that such full transformation takes place. Any positivised principle
might potentially bring into legal reasoning forms of argumentation characteristic of
general practical discourse, even if they are bound and restricted by the institutional
6
framework of legal reasoning. He claims a normative argument for preferring his
conception. If we understand the process of positivisation as Alexy does, we will
preserve the free and non-institutional character of the arguments, thus keeping legal
reasoning in contact with practical reason, and with unmediated process of
deliberation characteristic of the unstructured public sphere, which themselves play an
important role in Habermas′ theory.
That does not mean that law is not a mere "concretisation" of morality,
because we already saw that the special case thesis considers that law is a special case
of general practical reasoning which includes also prudential and ethical arguments. It
does not mean either that judicial reasoning proceeds on the basis of legal
argumentation up to a point, and that from then onwards we enter into a realm in
which reasoning is extralegal or a matter of "judicial legislation", because the
permeation between the two systems is more diffused.
The third session was devoted to the role played by rights within
Habermas′legal theory. Professor Cohen offered a sympathetic criticism, which
advocated a more substantial and less procedure conception of deliberative
democracy, further developing on the work of John Rawls. This substantial grounding
will stress the essential role played by private (i.e. non political) liberties and offered a
stronger foundation for rights to private autonomy. ProfessorRubio Llorente, drawing
on his experience as constitutional judge, offered some arguments for judicial review
which will weaken the scepticism towards such form of judicial adjucation on the side
of Habermas. He stressed that the emergence of party systems has tipped the balance
of powers on the side of the executive, and that in such context judicial review seems
absolute necessary in order to avoid excessive delegation of powers and legislative
inaction. He concluded being more sceptic towards the possibility of judicial review on
matters concerning social rights, given their structural dependence on socioeconomic
conditions.
Professor Cohen offered a sympathetic but critical account of Habermas′legal
theory. On the one hand, he advocated the Rawlsian move of building up a political
and not metaphysicial conception of political legitimacy, something which reduces the
emphasis which Habermas puts on bringing with him his sociological conception of
modernity. On the other hand, he advocates a more substantive and less procedural
theory of democratic legitimation; a theory of radical democracy needs to elaborate on
the conditions for actual democratic deliberation, because we need an account of what
makes deliberation democratic and democracy deliberative independent from the
ourcomes of the democratic process itself. That explains why the substantive element
is thicker than what is assumed in Habermas′discourse ethics. Instead of trusting that
the form and grammar of modern law as the key element in ensuring the equal liberty
of citizens, he argues that we need a substantive argument of why and what pluralism
is reasonable and of what reasons are to count as public. Such arguments are essential
in order to achieve a better understanding of private liberties and rights. Finally, he
offers an alternative understanding of radical democracy. He criticises
Habermas′assumption of the differentiation of social subsystems, and his assumption
of a dualist model of democracy, in which political activism will be confined to
7
periodical outbursts of political activism, and the influence over subsystems like
administration and money is characterised as a "siege-model" in which
citizens′participation cannot really enter the subsystem, but only program it from
outside. Relying on his works on associative democracy and deliberative polyarchy,
he advocates a political constitution in which the existing institutions will be
gradually turned into agencies creating spheres of real deliberation and problemsolving
by individuals themselves.
Professor Rubio Llorente offered some critical insights into Habermas′theory
of judicial review of legislation6.
He started by arguing that Habermas would do better in distinguishing two
different problems. First, judicial review derived from a concrete case, in the context of
which the constitutionality of a statute is put into question. Second, judicial review of
legislation in abstracto, or what is the same, those instances in which the Court is
asked to produce an abstract or hypothetical judgement of the constitutionality of a
certain legislative measure. While the first problem is at the core of judicial review, the
second is only part of the competences of some Constitutional Courts, and it is open
to debate whether that is advisable.
Then he offered some reflections on whether Habermas′account of judicial
review misses part of the picture, in the sense that the problem of judicial review is a
bit more complex. In democracies structured around party-systems, the classic
institutional balance is tipped in favour of the executive, and there is the serious risk
of excesive delegation in favour of the executive and the administration. The role
played by Constitutional Courts should be seen against such a political and
institutional context. Finally, Rubio stressed the different role to be played by
freedom rights and social rights within judicial review. The complex relationship in
which the latter stand to economic and social facts renders advisable that
Constitutional Courts exercise their self-restraint in the latter case.
The last session was devoted to the problem of supranational democracy, with
the European Communities clearly in the mind of discussants. Professor Zolo offered a
realistic criticism on Habermas′arguments, based on a pessimistic interpretation of
the process of economic and cultural globalisation. He stressed the dangers implicit in
Habermas′attempt at founding international law on the individual and surpassing
nation-states, and also the naivity of his expectations on the reform of the United
Nations.
Professor Zolo′s "A Cosmpolitan Philosophy of International Law? A
Realist approach" offers a"realistic" criticism of some of Habermas′essays on
international relations and international law.
His paper characterises the latter as a radical heir of Kant. His proposals will
go beyond those of the author of "Eternal Peace". He advocates not only a
cosmpolitan international order, but a "cosmopolitan state", a new foundation of
international law, no longer being structured around nation-states, but around
6 Habermas′arguments are mainly found in chapter six of BFN.
8
individuals, who will interact without such mediating structures, and whose rights will
be protected and enforced by international structures.
The realistic criticism is based on an interpretation of the process of economic
and cultural globalisation which considers as na?ve to look at it with hope, as
Habermas does. Where the latter detects chances to build up a global civil society and
traces the works of national civil societies pressing for more altruistic policies of the
side of their nation-states, the former sees subtle economic and cultural colonialism
and the risk of increased jingoism and self-interested behaviour. His criticism becomes
quite specific concerning Habermas′trust in the possibility of deep reform of the
United Nations institutional structure and its assumed roals. For Zolo, it is
unavoidable that it reproduces the hierarchy of economic and military power, and it is
organised in open denial to the principles of the Rule of Law. He offers as an
alternative a polycentric regionalisation, following the theoretical models developed by
Robert Kehoane and Stephen Krasne, which will be able to avoid the pitfalls of
hierarchical and oppresive world structures.
Ulrich Preuss dealt with the constitutionalisation of the European
Communities. His contribution was intentionally open, offering a sort of preface to a
theory on European constitutional law. Revisiting some of his previous work, he
stressed the following premises. First, the idea that the locus of ultimate sovereign
power are the states. In legal terms, the competence competence belongs to member
sates and not to the community. Second, that the Community legl order is necessarily
incomplete, and can be seen as a legal order in the making. Third, that we should pay
attention to dynamic and not only institutional elements of the European legal order.
Finally, that a good deal of the case for European democracy is based on the
community problem-solving capacities, that is on reasons of efficiency and utility.