[. . .]
Discourse theory attempts to reconstruct this normative self-understanding in a way that resists both scientistic reductions and aesthetic assimilations. The three dimensions of cognitive, evaluative, and normative validity that have Been differentiated within the self-under standing of modernity must not be collapsed. After a century that, more than any other, has taught us the horror of existing unreason, the last remains of an essentialist trust in reason have been destroyed. Yet modernity, now aware of its contingencies, depends all the more on a procedural reason, that is, on a reason that puts itself on trial. The critique of reason is its own work: this double meaning, first displayed by Immanuel Kant, is due to the radically anti-Platonic insight that there is neither a higher nor a deeper reality to which we could appeal – we who find ourselves already situated in our linguistically structured forms of life.
Three decades ago I criticized Marx's attempt to transpose the Hegelian philosophy of right into a materialist philosophy of history:
With his critique of ideology applied to the bourgeois constitutional state and with his sociological dissolution of the theoretical basis for natural rights, Marx so enduringly discredited . . . both the idea of legality and the intention of natural law, that the link between natural law and revolution has been broken ever since. The parties of an internationalized civil war have divided this heritage between themselves with fateful clarity: the one side has taken up the heritage of revolution, the other the ideology of natural law.
After the collapse of state socialism and the end of the 'global civil war,' the theoretical error of the defeated party is there for all to see: it mistook the socialist project for the design – and violent implementation – of a concrete form of life. If, however, one conceives 'socialism' as the set of necessary conditions for emancipated forms of life about which the participants themselves must first reach an understanding, then one will recognize that the democratic self-organization of a legal community constitutes the normative core of this project as well. On the other hand, the party that now considers itself victorious does not rejoice at its triumph. Just when it could emerge as the sole heir of the moral-practical self-understanding of modernity, it lacks the energy to drive ahead with the task of imposing social and ecological restraints on capitalism at the breathtaking level of global society. It zealously respects the systemic logic of an economy steered through markets; and it is at least on guard against overloading the power medium of state bureaucracies. Nevertheless, we do not even begin to display a similar sensibility for the resource that is actually endangered – a social solidarity preserved in legal structures and in need of continual regeneration.
In contemporary Western societies governed by the rule of law, politics has lost its orientation and self-confidence [. . .] what makes communicative reason possible is the linguistic medium through which interactions are woven together and forms of life are structured. This rationality is inscribed in the linguistic telos of mutual understanding and forms an ensemble of conditions that both enable and limit. Whoever makes use of a natural language in order to come to an understanding with an addressee about something in the world is required to take a performative attitude and commit herself to certain presuppositions. In seeking to reach an understanding, natural-language users must assume, among other things, that the participants pursue their illocutionary goals without reservations, that they tie their agreement to the inter subjective recognition of criticizable validity claims, and that they are ready to take on the obligations resulting from consensus and relevant for further interaction. These aspects of validity that undergird speech are also imparted to the forms of life reproduced through communicative action. Communicative rationality is expressed in a decentered complex of pervasive, transcendentally enabling structural conditions, but it is not a subjective capacity that would tell actors what they ought to do.
Unlike the classical form of practical reason, communicative reason is not an immediate source of prescriptions. It has a normative content only insofar as the communicatively acting individuals must commit themselves to pragmatic presuppositions of counterfactual sort. That is, they must undertake certain idealizations – for example, ascribe identical meanings to expressions, connect utterances with context-transcending validity claims, and assume that addressees are accountable, that is, autonomous and sincere with both themselves and others.
Communicatively acting individuals are thus subject to the 'must' of a weak transcendental necessity, but this does not mean they already encounter the prescriptive 'must' of a rule of action – whether the latter 'must' can be traced back deontologically to the normative validity of a moral law, axiologically to a constellation of preferred values, or empirically to the effectiveness of a technical rule.
A set of unavoidable idealizations forms the counterfactual basis of an actual practice of reaching understanding, a practice that can critically turn against its own results and thus transcend itself. Thus the tension between idea and reality breaks into the very facticity of linguistically structured forms of life. Everyday communicative practice overtaxes itself with its idealizing presuppositions, but only in the light of this innerworldly transcendence can learning processes take place at all.
Communicative reason thus makes an orientation to validity claims possible, but it does not itself supply any substantive orientation for managing practical tasks – it is neither informative nor immediately practical. On the one hand, it stretches across the entire spectrum of validity claims: the claims to propositional truth, personal sincerity, and normative Tightness; to this extent it reaches beyond the realm of moral-practical questions. On the other hand, it pertains only to insights – to criticizable utterances that are accessible in principle to argumentative clarification – and thus falls short of practical reason aimed at motivation, at guiding the will. Normativity in the sense of the obligatory orientation of action does not coincide with communicative rationality. Normativity and communicative rationality intersect with one another where the justification of moral insights is concerned. Such insights are reached in a hypothetical attitude and carry only the weak force of rational motivation. In any case, they cannot themselves guarantee that insight will issue in motivated action.
One must keep these differences in view when I continue to use the concept of communicative reason in connection with a reconstructive social theory. In this new context, the received concept of practical reason also acquires a different, more or less heuristic status. It no longer provides a direct blueprint for a normative theory of law and morality. Rather, it offers a guide for reconstructing the network of discourses that, aimed at forming opinions and preparing decisions, provides the matrix from which democratic authority emerges. From this perspective, the forms of communication that confer legitimacy on political will-formation, legislation, and the administration of justice appear as part of a more encompassing process in which the lifeworlds of modern societies are rationalized (under the pressure of systemic imperatives). At the same time, such a reconstruction would provide a critical standard, against which actual practices – the opaque and perplexing reality of the constitutional state – could be evaluated.
In spite of the distance from traditional concepts of practical reason, it is by no means trivial that a contemporary theory of law and democracy still seeks to link up with classical concept formations at all. This theory starts with the socially integrating force of rationally motivating, hence noncoercive processes of reaching understanding. These provide a space for distance and recognized differences within a sustained commonality of convictions. Moral philosophers and philosophers of law adopt this perspective in the normative discourses they still carry on, indeed with greater vigor than ever before. Because they specialize in dealing with questions of normative validity in the performative attitude of participants, they usually remain inside the limited horizon of lifeworlds whose spell has been broken by the objectivating observations of social scientists for some time now. Normative theories are Open to the suspicion that they take insufficient notice of the hard facts that have long contradicted the contractarian self-understanding of the modern constitutional state. From the objectivating viewpoint of the social sciences, a philosophical approach that still operates with the alternatives of forcibly stabilized Versus rationally legitimated orders belongs to the transitional semantics of early modernity. Such terminology seemingly became obsolete once the transition from stratified to functionally differentiated societies was complete. Even when we adopt a theoretical approach that accords a central role to a communicative concept of 'practical reason,' we must, so it seems, single Out a special and particularly demanding form of communication that covers only a small part of the broad spectrum of observable forms of communication: 'using such narrow channels one can hardly succeed, in the new paradigm of reaching understanding, in once again filling out a sufficiently complex theory of society.'
Tossed to and fro between facticity and validity, political theory and legal theory today are disintegrating into camps that hardly have anything more to say to one another. The tension between normative approaches, which are constantly in danger of losing contact with social reality, and objectivistic approaches, which screen out all normative aspects, can be taken as a caveat against fixating on one disciplinary point of view. Rather, one must remain open to different methodological standpoints (participant vs. observer), different theoretical objectives (interpretive explication and conceptual analysis vs. description and empirical explanation), the perspectives of different roles (judge, politician, legislator, client, and citizen), and different pragmatic attitudes of research (hermeneutical, critical, analytical, etc). [. . .] in explicating tile meaning of linguistic expressions and the validity of statements, we touch on idealizations that are connected with the medium of language. Specifically, the ideal character of conceptual and semantic generality is accessible to a semantic analysis of language, whereas the idealization connected with validity claims is accessible to a pragmatic analysis of the use of language oriented to reaching understanding. These idealizations inhabiting language itself acquire, in addition, an action-theoretic meaning if the illocutionary binding forces of speech acts are enlisted for the coordination of the action plans of different actors.
With the concept of communicative action, which brings in mutual understanding as a mechanism of action coordination, the counterfactual presuppositions of actors who orient their action to validity claims also acquire immediate relevance for the construction and preservation of social orders; for these orders exist through the recognition of normative validity claims. This means that the tension between facticity and validity built into language and its use turns up again in the dynamics of the integration of communicatively socialized individuals. What is more, this tension must be worked off by the participants' own efforts. In the social integration achieved through enacted law, this tension is [. . .] stabilized in a special way.
Every social interaction that comes about without the exercise of manifest violence can be understood as a solution to the problem of how the action plans of several actors can be coordinated with each other in such a way that one party's actions 'link up' with those of others. An ongoing connection of this sort reduces the possibilities of clashes among the doubly contingent decisions of participants to die point where intentions and actions can form more or less conflict-free networks, thus allowing behavior patterns and social order in general to emerge. As long as language is used only as a medium for transmitting information, action coordination proceeds through the mutual influence that actors exert on each other in a purposiverational manner. On the other hand, as soon as the illocutionary forces of speech acts take on an action-coordinating role, language itself supplies the primary source of social integration. Only in this case should one speak of 'communicative action.' In such action, actors in the roles of speaker and hearer attempt to negotiate interpretations of the situation at hand and to harmonize their respective plans with one another through the unrestrained pursuit of illocutionary goals. Naturally, the binding energies of language can be mobilized to coordinate action plans only if the participants suspend the objectivating attitude of an observer, along with the immediate orientation to personal success, in favor of the performative attitude of a speaker who wants to reach an understanding with a second person about something in the world. Under this condition, speech-act offers can achieve an action-coordinating effect because obligations relevant to further interaction result from the addressee's affirmative response to a serious offer.
Communicative action, then, depends on the use of language oriented to mutual understanding. This use of language functions in such a way that the participants either agree on the validity claimed for their speech acts or identify points of disagreement, which they conjointly take into consideration in the course of further interaction. Every speech act involves the raising of criticizable validity claims aimed at intersubjective recognition. A speech-act offer has a coordinating effect because the speaker, by raising a validity claim, concomitantly takes on a sufficiently credible guarantee to vindicate the claim with the right kind of reasons, should this be necessary [. . .] The embeddedness of communicative action in lifeworld contexts and the regulation of behavior through strong archaic institutions explain how social integration in small and relatively undifferentiated groups is at all possible on the improbable basis of processes of reaching understanding. Naturally in the course of social evolution the risk of dissension increases with the scope for taking yes/no positions on criticizable validity claims. The more societal complexity increases and originally ethnocentric perspectives widen, the more there develops a pluralization of forms of life accompanied by an individualization of life histories, while the zones of overlapping lifeworlds and shared background assumptions shrink. In proportion to their disenchantment, sacralized belief complexes fall apart, under differentiated validity aspects, into the more or less freely thematizable contents of a tradition set Communicatively aflow. Above all, however, processes of social differentiation necessitate a multiplication and variation of functionally specified tasks, social roles, and interest positions. On the one hand, this allows communicative action to escape its narrowly circumscribed institutional boundaries for a wider range of opportunities. On the other hand, in a growing number of spheres social differentiation not only unshackles but requires the self-interested pursuit of one's own success.
This brief outline should suffice to indicate the problem that emerges in modern societies: how the validity and acceptance of a social order can be stabilized once communicative actions become autonomous and clearly begin to differ, in the view of the actors themselves, from strategic interactions. Naturally, self-interested action has always been fused with, or limited by, a normative Order. In societies organized around a state, legal norms are already superimposed on a mature normative infrastructure...