Between Facts and Norms
Encyclopedia
Between Facts and Norms is a book on deliberative politics
that was published by the German political philosopher, Jürgen Habermas
, in 1996. Originally published in 1992 as Faktizität und Geltung, the book is the culmination of Habermas's project that began with The Structural Transformation of the Public Sphere
in 1962, and represents a lifetime of political thought on the nature of democracy
and law
.
(drawing on the author’s Theory of Communicative Action, first published in 1981), 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, but 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
.
Criticized for his "discourse ethics
" first propounded in 1990, Habermas, in this book, attempts to draw out the political, legal, and institutional implications of his theory, asserting that discourse ethics
ought to be complemented by a theory of socialization
that accounts for its institutionalization. ("Discourse ethics" is Harbemas's attempt to explain the universal
and obligatory
nature of morality
by evoking the universal obligations of communicative rationality
.)
Habermas contends that law is the primary medium of social integration in modern society, and is power that extracts obedience from its subjects. As power alone cannot grant it its legitimacy in modern society, law derives its validity from the consent of the governed
. Arguing that law is characterized by an internal tension between fact
s and norm
s that develops from the modern process of secularization
, Habermas introduces a new term, "communicative power", in this book. Pointing out that legitimate
law-making is itself generated through a procedure of public opinion
and will-formation that produces communicative power, he asserts that this communicative power, in its turn, influences the process of social institutionalization. In his words:
There is, hence, a circular and reciprocal relation among communicatively-generated power, legitimate law, and state power that, Habermas believes, are co-originally juxtaposed. The co-originality of legitimate law and political power suggests a functional connection between them — "power" functions for "law" as the political institutionalization of law, and "law" functions for "power" as the legal organization of the exercise of political power. The functionalist
codes of both law and power, then, suggest that "law requires a normative perspective, and power, an instrumental one". This difference leads Habermas to distinguish between "communicative power" and "administrative power".
The introduction of this distinction indicates a redrawing of the boundary between the life-world and system in favour of the latter, and consequently indicates a shift to the right
in Habermas's latest work. What was previously known as a "discursive situation", freed from external constraints that amounted to inter-subjective agreement, now referred to as "communicative power", mobilizes public opinion and will-formation, influencing the process of institutionalization and hence determining the legitimacy of law. The important consequence of this distinction is that it aligns power with legitimate law, and the latter, arising from renunciation of natural violence, serves to channel a legitimate force identified with power.
Habermas's treatment of the role and meaning of the concept of "power", as it was elaborated in his two previous volumes, The Theory of Communicative Action
and Moral Consciousness and Communicative Action, has therefore undergone some significant changes in this book. The revised notion of "power" as a positive influence that is produced in communicative space, runs contrary to Habermas's original concept of "power" in his Theory of Communicative Action where power was understood as a coercive force that had to be avoided in order for the discursive situation to prevail.
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. 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 everyone. In Habermas’ deliberative paradigm, law stabilizes society, but only through the universal voice of democracy.
Between Facts and Norms concludes with a proposal for a new paradigm of law that goes beyond the dichotomies
that have afflicted modern political theory from its inception, and that still underlie current controversies between so-called liberal
s and republican
s.
Deliberative democracy
Deliberative democracy is a form of democracy in which public deliberation is central to legitimate lawmaking. It adopts elements of both consensus decision-making and majority rule. Deliberative democracy differs from traditional democratic theory in that authentic deliberation, not mere...
that was published by the German political philosopher, Jürgen Habermas
Jürgen Habermas
Jürgen Habermas is a German sociologist and philosopher in the tradition of critical theory and pragmatism. He is perhaps best known for his theory on the concepts of 'communicative rationality' and the 'public sphere'...
, in 1996. Originally published in 1992 as Faktizität und Geltung, the book is the culmination of Habermas's project that began with The Structural Transformation of the Public Sphere
The Structural Transformation of the Public Sphere
The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society , by Jürgen Habermas, was published in 1962 and translated into English in 1989 by Thomas Burger and Frederick Lawrence...
in 1962, and represents a lifetime of political thought on the nature of democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
and law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
.
Summary and background
Between Facts and Norms offers an original reconstruction of the philosophy of languagePhilosophy of language
Philosophy of language is the reasoned inquiry into the nature, origins, and usage of language. As a topic, the philosophy of language for analytic philosophers is concerned with four central problems: the nature of meaning, language use, language cognition, and the relationship between language...
(drawing on the author’s Theory of Communicative Action, first published in 1981), a theory of jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, an understanding of constitutional theory, reflections on civil society
Civil society
Civil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
and democracy, and an attempt to construct a new paradigm
Paradigm
The word paradigm has been used in science to describe distinct concepts. It comes from Greek "παράδειγμα" , "pattern, example, sample" from the verb "παραδείκνυμι" , "exhibit, represent, expose" and that from "παρά" , "beside, beyond" + "δείκνυμι" , "to show, to point out".The original Greek...
of politics that goes beyond, but without discarding, the liberal tradition
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
. At the heart of the book is a reconsideration of the relation between the philosophy of law and political theory
Political science
Political Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
.
Criticized for his "discourse ethics
Discourse ethics
Discourse ethics, sometimes called argumentation ethics, refers to a type of argument that attempts to establish normative or ethical truths by examining the presuppositions of discourse.-Habermas and Apel:...
" first propounded in 1990, Habermas, in this book, attempts to draw out the political, legal, and institutional implications of his theory, asserting that discourse ethics
Discourse ethics
Discourse ethics, sometimes called argumentation ethics, refers to a type of argument that attempts to establish normative or ethical truths by examining the presuppositions of discourse.-Habermas and Apel:...
ought to be complemented by a theory of socialization
Socialization
Socialization is a term used by sociologists, social psychologists, anthropologists, political scientists and educationalists to refer to the process of inheriting and disseminating norms, customs and ideologies...
that accounts for its institutionalization. ("Discourse ethics" is Harbemas's attempt to explain the universal
Universalism
Universalism in its primary meaning refers to religious, theological, and philosophical concepts with universal application or applicability...
and obligatory
Obligation
An obligation is a requirement to take some course of action, whether legal or moral. There are also obligations in other normative contexts, such as obligations of etiquette, social obligations, and possibly...
nature of morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
by evoking the universal obligations of communicative rationality
Communicative rationality
Communicative rationality, or communicative reason, is a theory or set of theories which describes human rationality as a necessary outcome of successful communication. In particular, it is tied to the philosophy of Karl-Otto Apel, Jürgen Habermas, and their program of universal pragmatics, along...
.)
Habermas contends that law is the primary medium of social integration in modern society, and is power that extracts obedience from its subjects. As power alone cannot grant it its legitimacy in modern society, law derives its validity from the consent of the governed
Consent of the governed
"Consent of the governed" is a phrase synonymous with a political theory wherein a government's legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised...
. Arguing that law is characterized by an internal tension between fact
Fact
A fact is something that has really occurred or is actually the case. The usual test for a statement of fact is verifiability, that is whether it can be shown to correspond to experience. Standard reference works are often used to check facts...
s and norm
Norm (sociology)
Social norms are the accepted behaviors within a society or group. This sociological and social psychological term has been defined as "the rules that a group uses for appropriate and inappropriate values, beliefs, attitudes and behaviors. These rules may be explicit or implicit...
s that develops from the modern process of secularization
Secularization
Secularization is the transformation of a society from close identification with religious values and institutions toward non-religious values and secular institutions...
, Habermas introduces a new term, "communicative power", in this book. Pointing out that legitimate
Legitimacy (political science)
In political science, legitimacy is the popular acceptance of a governing law or régime as an authority. Whereas “authority” denotes a specific position in an established government, the term “legitimacy” denotes a system of government — wherein “government” denotes “sphere of influence”...
law-making is itself generated through a procedure of public opinion
Public opinion
Public opinion is the aggregate of individual attitudes or beliefs held by the adult population. Public opinion can also be defined as the complex collection of opinions of many different people and the sum of all their views....
and will-formation that produces communicative power, he asserts that this communicative power, in its turn, influences the process of social institutionalization. In his words:
- "informal public opinion-formation generates 'influence'; influence is transformed into 'communicative power' through the channels of political electionElectionAn election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...
s; and communicative power is again transformed into "administrative power" through legislationLegislationLegislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
. This influence, carried forward by communicative power, gives law its legitimacyLegitimacy (political science)In political science, legitimacy is the popular acceptance of a governing law or régime as an authority. Whereas “authority” denotes a specific position in an established government, the term “legitimacy” denotes a system of government — wherein “government” denotes “sphere of influence”...
, and thereby provides the political power of the state its binding force."
There is, hence, a circular and reciprocal relation among communicatively-generated power, legitimate law, and state power that, Habermas believes, are co-originally juxtaposed. The co-originality of legitimate law and political power suggests a functional connection between them — "power" functions for "law" as the political institutionalization of law, and "law" functions for "power" as the legal organization of the exercise of political power. The functionalist
Functionalism (philosophy of mind)
Functionalism is a theory of the mind in contemporary philosophy, developed largely as an alternative to both the identity theory of mind and behaviourism. Its core idea is that mental states are constituted solely by their functional role — that is, they are causal relations to other mental...
codes of both law and power, then, suggest that "law requires a normative perspective, and power, an instrumental one". This difference leads Habermas to distinguish between "communicative power" and "administrative power".
The introduction of this distinction indicates a redrawing of the boundary between the life-world and system in favour of the latter, and consequently indicates a shift to the right
Right-wing politics
In politics, Right, right-wing and rightist generally refer to support for a hierarchical society justified on the basis of an appeal to natural law or tradition. To varying degrees, the Right rejects the egalitarian objectives of left-wing politics, claiming that the imposition of equality is...
in Habermas's latest work. What was previously known as a "discursive situation", freed from external constraints that amounted to inter-subjective agreement, now referred to as "communicative power", mobilizes public opinion and will-formation, influencing the process of institutionalization and hence determining the legitimacy of law. The important consequence of this distinction is that it aligns power with legitimate law, and the latter, arising from renunciation of natural violence, serves to channel a legitimate force identified with power.
Habermas's treatment of the role and meaning of the concept of "power", as it was elaborated in his two previous volumes, The Theory of Communicative Action
The Theory of Communicative Action
The Theory of Communicative Action was published in 1981 in two volumes, the first subtitled Reason and the Rationalization of Society , the second, Lifeworld and System: A Critique of Functionalist Reason...
and Moral Consciousness and Communicative Action, has therefore undergone some significant changes in this book. The revised notion of "power" as a positive influence that is produced in communicative space, runs contrary to Habermas's original concept of "power" in his Theory of Communicative Action where power was understood as a coercive force that had to be avoided in order for the discursive situation to prevail.
Habermas further accommodates his critics on the role of law by making a distinction between ethics
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
and morality. In a modern pluralist culture, he argues, normative issues should be separated from issues of the good life. 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 everyone. In Habermas’ deliberative paradigm, law stabilizes society, but only through the universal voice of democracy.
Between Facts and Norms concludes with a proposal for a new paradigm of law that goes beyond the dichotomies
Dichotomy
A dichotomy is any splitting of a whole into exactly two non-overlapping parts, meaning it is a procedure in which a whole is divided into two parts...
that have afflicted modern political theory from its inception, and that still underlie current controversies between so-called liberal
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
s and republican
Republicanism
Republicanism is the ideology of governing a nation as a republic, where the head of state is appointed by means other than heredity, often elections. The exact meaning of republicanism varies depending on the cultural and historical context...
s.
Table of contents
- Law as a Category of Social MediationMediationMediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
between Facts and Norms - The SociologySociologySociology is the study of society. It is a social science—a term with which it is sometimes synonymous—which uses various methods of empirical investigation and critical analysis to develop a body of knowledge about human social activity...
of Law versus the Philosophy of Justice - A Reconstructive Approach to Law I: The System of Rights
- A Reconstructive Approach to Law II: The System of Rights
- The IndeterminacyIndeterminacyIndeterminacy or underdeterminacy may refer to:* Indeterminacy in computation * aleatoric music and indeterminacy in music.* Statically indeterminate*Indeterminacy a literary term...
of Law and the RationalityRationalityIn philosophy, rationality is the exercise of reason. It is the manner in which people derive conclusions when considering things deliberately. It also refers to the conformity of one's beliefs with one's reasons for belief, or with one's actions with one's reasons for action...
of AdjudicationAdjudicationAdjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved.... - JudiciaryJudiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
and LegislatureLegislatureA legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
: On the Role and Legitimacy of Constitutional Adjudication - Deliberative Politics: A Procedural Concept of Democracy
- Civil Society and the Political Public Sphere
- Paradigms of Law