Habermas

The Discourse Theory of Law and Democracy

Hugh Baxter

• Publisher: Stanford Law Books
• Year: 2011
• ISBN:
  9780804777810
• Edition: 1
• Topic: Derecho
• Subtopic: Jurisprudencia

Though many legal theorists are familiar with Jürgen Habermas's work addressing core legal concerns, they are not necessarily familiar with his earlier writings in philosophy and social theory. Because Habermas's later work on law invokes, without significant explanation, the whole battery of concepts developed in earlier phases of his career, even otherwise sympathetically inclined legal theorists face significant obstacles in evaluating his insights.

A similar difficulty faces those outside the legal academy who are familiar with Habermas's earlier work. While they readily comprehend Habermas's basic social-theoretical concepts, without special legal training they have difficulty reliably assessing his recent engagement with contemporary legal thought. This new work bridges the gap between legal experts and those without special legal training, critically assessing the attempt of an unquestionably preeminent philosopher and social theorist to engage the world of law.

CHAPTER ONE

Basic Concepts in Habermas’s Theory of Communicative Action

Habermas begins his construction of the theoretical framework he develops in Theory of Communicative Action with a theory of action. He aims to go beyond standard conceptions of rational action to generate a theory of “communicative action.” In this form of action—or, more properly, interaction—participants pursue their goals either on the basis of an existing consensual understanding or with the aim of developing that kind of understanding (see section 1.1). Habermas sets his concept of communicative action within a concept of society: a concept that, following the phenomenological tradition in philosophy and social theory, Habermas calls society as “lifeworld” (see section 1.2).

Both in Theory of Communicative Action and later in Between Facts and Norms, Habermas takes the notion of the “lifeworld” as the basic conception of society, to be amended or supplemented only for cause. As I suggested in the Introduction, Habermas argues that in the course of social evolution—specifically, with the rise of a capitalist economy and a bureaucratic state—systems of economic and political action develop in which action is coordinated not by consensual understanding by the consequences of self-interested action. I consider in section 1.3 Habermas’s idea of such “systems.” Habermas’s thinking here is inspired by his reading of Talcott Parsons, the preeminent American sociologist from the early 1950s until perhaps the early 1970s. In section 1.4, I consider how Habermas puts the lifeworld and system concepts together in his model of system/lifeworld interchange. This model is the basis of Habermas’s critical theory, from its development in 1981 at least until Habermas revised it in his 1992 work Between Facts and Norms.

My argument will be that in elaborating each of these basic concepts, and particularly in his account of system/lifeworld interchange, Habermas tends toward polar distinctions that cannot be maintained. Communicative action is not so clearly demarcated from other forms of action as Habermas suggests, and because Habermas constructs his notion of the lifeworld around communicative action the distinction between system and lifeworld similarly is too sharply drawn. This tendency toward stylized oppositions, I contend, ultimately undermines the system/lifeworld model Habermas develops in Theory of Communicative Action. And thus to the extent Habermas relies on that model in Between Facts and Norms, his account of law is correspondingly weakened. Further, I argue, the critical model Habermas develops in Theory of Communicative Action is more functionalist than straightforwardly normative. Habermas argues that the overextension of economic and bureaucratic forms of rationality threaten the “symbolic reproduction of the lifeworld,” inducing forms of social crisis that he calls collectively “the colonization of the lifeworld.” I will argue in subsequent chapters that Habermas revises this politically defensive strategy by arguing, more positively, that the idea of legitimate modern law and more radically democratic political practice mutually imply one another.

1.1 COMMUNICATIVE ACTION

Habermas distinguishes among three types of rational action¹: instrumental action, strategic action, and communicative action. Typically he marks the differences among these types with a pair of crosscutting distinctions.² One distinction is between two “orientations” of action, toward “success” or toward an “understanding” between the actor and others. The other distinction tracks Max Weber’s notions of “social” and “nonsocial” action—where “social action” means action in which the actor “takes account of the behavior of others” and orients her action accordingly.³

Both instrumental action and strategic action are oriented toward success rather than mutual understanding. They differ, however, along the lines of Habermas’s second distinction. Instrumental action is essentially the solitary performance of a task, according to “technical rules.” As such, instrumental action is “nonsocial,” in Habermas’s typology. Strategic action, by contrast, is designed to “influenc[e] the decisions of a rational opponent,” according to “rules of rational choice.” Instrumental actions may be elements of a pattern of social action—either communicative or strategic—but they do not themselves comprise a distinct type of social action.⁴

1.1.1 The Distinction between Communicative and Strategic Action

More difficult is the distinction between communicative and strategic action. The general distinction Habermas draws between these two forms of action—orientation toward success versus orientation toward understanding—is not by itself very helpful. As Habermas allows, communicative action as well as strategic action is goal directed, and the goals of communicative action are not necessarily reducible to the aim of reaching understanding. Orientation to “success” versus orientation toward “understanding,” then, does not seem a promising basis for distinguishing between strategic and communicative action—at least not without additional explanation. Nor does the term communicative by itself mark the difference: Habermas acknowledges both that communicative action does not consist wholly in speech acts⁵ and also that strategic action, too, may include the use of speech.⁶

The picture becomes clearer, however, when one considers the purpose of Habermas’s typology. As a social theorist, Habermas is interested primarily in how individual actions can be coordinated into patterns of interaction.⁷ For this reason, Habermas generally uses the terms communicative and strategic to refer to types of interaction rather than to discrete individual actions. The problem Habermas sets himself—and the basis for his distinction between communicative and strategic action—is to identify the mechanisms that coordinate these two types of interaction.⁸

This task Habermas approaches through his “formal pragmatics.” With the term pragmatics, Habermas signals his focus on language in use—on utterances or “speech acts”—as opposed to a semantic focus on the meaning of isolated sentences or propositions. By “formal,” Habermas means that he seeks not to describe and classify the “communicative practice of everyday life”⁹ as it operates within a particular language—that would be the approach Habermas calls “empirical” pragmatics—but instead to “rationally reconstruct” the necessary presuppositions of communicative practice.¹⁰ What Habermas pursues in his formal pragmatics is a theory of the unreflectively mastered, pretheoretical communicative capacities of ordinary competent speakers. This theory focuses, in particular, on the way speakers may use speech acts to establish, maintain, or transform social relationships with other persons.

The central idea in Habermas’s formal pragmatics, and the basis for his conception of communicative action, is the notion of a speech act’s “validity.” Habermas distinguishes among three forms of validity to which speech acts may lay claim: propositional truth,¹¹ normative rightness (Richtigkeit), and sincerity (Wahrhaftigkeit).¹² Typically, Habermas observes, just one of these validity claims is thematic in a particular speech act: In a confession, for example, the claim to sincerity is thematic, as is the claim to truth in a factual assertion.¹³ Habermas’s formulation of the main categories of speech acts reflects this insight: In “constative,” “regulative,” and “expressive” utterances, the claims to truth, rightness, and sincerity are (respectively) thematic.¹⁴

Nonetheless, Habermas contends, any speech act in communicative action raises simultaneously all three claims, even if (ordinarily) the speaker raises only one directly or thematically.¹⁵ Here perhaps Habermas stretches the notion of “raising a claim” too far. We would not ordinarily say, for example, that a speaker’s request for a glass of water “raises a truth claim”—that she claims it to be true that a glass of water can be obtained and brought in a reasonable amount of time. More likely we would say that she presupposes these factual circumstances. A weaker but more plausible formulation of Habermas’s position might therefore be that every utterance constitutive for communicative action raises a claim to or presupposes validity in the three respects Habermas identifies. An alternative (and also weaker) formulation is that, at least in principle, any speech act can be criticized along any of the three dimensions of validity.¹⁶ For example, a statement that the argument of a colleague’s book depends on five identified factual errors would be a constative speech act in which propositional truth is the thematic claim. But if one were to make such a statement at a party celebrating the book’s publication, a hearer might respond by saying that such a criticism, even if true, is normatively inappropriate in the context of its utterance. Or the hearer might reply by challenging the speaker’s sincerity—by, for example, suggesting that the criticism arises more from the speaker’s jealousy than from a serious evaluation of the book’s merits. In this second revision of Habermas’s thesis, every speech act constitutive for communicative action involves all three claims in that, in principle, a hearer can challenge the utterance in each of the three different ways.

Either of these two weaker versions of Habermas’s thesis would suffice for his purposes. And the second of the two, emphasizing the role of a hearer’s criticism, connects to an important theme in Habermas’s notion of communicative action. Validity claims, Habermas maintains, are essentially criticizable.¹⁷ By “criticizable,” Habermas means that in communicative action the hearer may respond to the claims by taking a “yes or no position”—either accepting the speech act’s claims or opposing them with criticism or requests for justification.¹⁸ And at least to the extent the interaction between speaker and hearer is to remain communicative,¹⁹ the speaker assumes the obligation of providing such justification if necessary.²⁰ Further, particularly in the case of regulative speech acts (such as a promise), mutual acceptance of a validity claim may impose future obligations.²¹ In these senses, acceptance of validity claims, or further discussion between speaker and hearer aimed at consensus concerning those claims, is the “mechanism of understanding [Verständigung]” that coordinates communicative action.

Because the point often has been misunderstood, it is worth underscoring that Habermas does not equate communicative action with the speech acts that coordinate it. In communicative action, as in all rational action, the participants pursue goals and plans of action, based on their interpretations of the situation.²² But communicative action is action proceeding from or directed toward achieving a consensus. In communicative action, Habermas says, actors “coordinate their individual plans . . . on the basis of communicatively achieved agreement.”²³

The mechanism coordinating strategic action, on Habermas’s scheme, is not “consensus”—mutual acceptance of validity claims—but “influence” (Einflußsnahme).²⁴ The term influence requires explication. In one sense of the word, communicative actors may seek to influence each other. In discussing a problematic claim, one may try to persuade the other that his position is correct, and the other may try to convince the one of her criticism. But by “influence,” Habermas says, he means “exert a causal influence,”²⁵ independent of the convincing force of reasons that could support claims to validity. So far, however, the characterization of “influence,” and thus the characterization of strategic action, is only negative—influence operates in some way other than mutual recognition of validity claims.

Habermas tries to characterize the mechanism of influence more precisely by distinguishing between two subtypes, “open” and “concealed” strategic action. Of these two subtypes, Habermas has given far more attention to concealed strategic action. The kind of “influence” characteristic of concealed strategic action is, in effect, deception²⁶—primarily conscious deception.²⁷ The more technical criterion Habermas adopts for concealed strategic action concerns the “avowability” of the parties’ intentions or aims. In concealed strategic interaction, at least one participant pursues aims that he knows could not be avowed without jeopardizing that participant’s success, while at least one participant assumes that all are acting communicatively. A simple example: One person requests a loan from another person without disclosing that the money will be used f...