Between Facts and Norms

Between Facts and Norms is a 1992 book on deliberative politics by the German political philosopher Jürgen Habermas. The culmination of the project that Habermas began with The Structural Transformation of the Public Sphere in 1962, it represents a lifetime of political thought on the nature of democracy and law.

Quotes

Translated by W. Rehg

Chap. 1 : Law as a Category of Social Mediation between Facts and Norms

• Modern societies have since become so complex that these two conceptual motifs—that of a society concentrated in the state and that of a society made up of individuals—can no longer be applied unproblematically.

• The philosophy of history can only glean from historical processes the reason it has already put into them with the help of teleological concepts. By the same token, norms for a reasonable conduct of life cannot be drawn from the natural constitution of the human species any more than they can from history.

• In the classical modern tradition of thought, the link between practical reason and social practice was too direct. This meant that the sphere of social practice was approached entirely from the angle of normative or—once filtered through a philosophy of history—cryptonormative issues.

• What makes communicative reason possible is the linguistic medium through which interactions are woven together and forms of life are structured.

• 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.

Chap. 2 : The Sociology of Law versus the Philosophy of Justice

• In contrast to sociological skepticism about law, philosophical theories of justice resolutely work out the moral content of modern legal orders. These rational constructions of law serve to justify principles according to which a well-ordered society should be set up. In the process, however, they lose touch with the reality of contemporary societies and thus have difficulties in identifying the conditions necessary for the realization of these principles.

Chap. 3 : A Reconstructive Approach to Law I: The System of Rights

• Norms appearing in the form of law entitle actors to exercise their rights or liberties. However, one cannot determine which of these laws are legitimate simply by looking at the form of individual rights. Only by bringing in the discourse principle can one show that each person is owed a right to the greatest possible measure of equal liberties that are mutually compatible.

Chap. 4 : A Reconstructive Approach to Law II: The Principles of the Constitutional State

• The law presents itself as a system of rights only as long as we consider it in terms of its specific function of stabilizing behavioral · expectations. These rights can take effect and be enforced only by organizations that make collectively binding decisions. Conversely, these decisions owe their collective bindingness to the legal form in which they are clad. This internal connection of law with political power is reflected in the above-noted implications that "subjective" rights have for "objective" law.

• In short, the state becomes necessary as a sanctioning, organizing, and executive power because rights must be enforced, because the legal community has need of both a collective self-maintenance and an organized judiciary, and because political will-formation issues in programs that must be implemented.

• The conceptual framework of modern natural law, as developed in the tradition of the philosophy of the subject, blocks an adequate sociological perception of the cohesion of kinship societies through prepolitical institutions; in fact, the complex of law and political power was able to join forces with this prepolitical substratum for a long time. The phenomena that first consistently appeared in modernity-the conglomeration of administrative power, the positivization of law, and the emergence of legal authority conceal the beginnings of a kind of political authority that initially emerged in the context of traditional societies.

• Law by no means exhausts itself in behavioral norms but increasingly serves to organize and regulate state power. It functions as a system of constitutive rules that not only guarantee the private and public autonomy of citizens but generate government institutions, procedures, and official powers.

• Rights of political participation refer to the legal institutionalization of a public opinion- and will-formation terminating in decisions about policies and laws. This public process is supposed to take place in forms of communication that, as we will now see, instantiate the discourse principle in a double respect.

• It is not just the legal form alone that distinguishes political from moral self-legislation, but the contingency of the form of life, of the goals and interest positions establishing the identity of the self-determining political will in advance.

• The rationality of a specialized and competent fulfillment of tasks by experts is no protection against a paternalistic self ..empowerment and self-programming on the part of administrative agencies. The logic of separated powers demands instead that the administration be empowered to carry out its tasks as professionally as possible, yet only under normative premises not at its disposal: the executive branch is to be limited to employing administrative power according to the law.

• The logic of the separation of powers must then be realized in new structures, say, by setting up the corresponding forms of participation and communication or by introducing quasi-judicial and parliamentary procedures, procedures for compromise formation, and so on.

Chap. 5 : The Indeterminacy of Law and the Rationality of Adjudication

• A paradigm of law draws on a model of contemporary society to explain how constitutional rights and principles must be conceived and implemented if in the given context they are to fulfill the functions normatively ascribed to them.

• The procedural principles tested and confirmed in practice and the maxims of interpretation canonized in textbooks on legal method will be satisfactorily captured in a discourse theory only when the network of argumentation, bargaining, and political communications in which the legislative process occurs has been more thoroughly analyzed than it has been to date.

• In summary, one can say that codes of procedure provide relatively strict rules for the introduction of evidence regarding what took place. Such codes thus define the bounds within which parties can deal with the law strategically. The legal discourse of the court, on the other hand, is played out in a procedural-legal vacuum, so that reaching a judgment is left up to the judge's professional ability.

Chap. 6 : Judiciary and Legislature: On the Role and Legitimacy of Constitutional Adjudication

• Our differentiated model of discourse, though more abstract than the communitarian account of dialogue, preserves quite well the individual's embeddedness in the intersubjectivity of a prior structure of possible mutual understanding. At the same time, the reference to an ideal audience or an ideally inclusive community extending beyond the traditional contours of any particular community encourages participants to take yes/no positions that are free from the prejudicial power of the contingent language games and particular forms of life into which they have been socialized in a merely conventional way.

Chap. 7 : Deliberative Politics: A Procedural Concept of Democracy

• The system of rights calls for the simultaneous and complementary realization of private and civic autonomy. From a normative standpoint, these two forms of autonomy are co-original and reciprocally presuppose each other, because one would remain incomplete without the other. But how private and public powers and responsibilities must be divided up in particular cases in order to adequately realize civil rights depends on the historical circumstances and, as we will see, on perceived social contexts.

• One must investigate the degree to which, in particular, the power concentrated in social subsystems, in large organizations and public administrations, inconspicuously settles into the systemic infrastructure of the normatively regulated circulation of power, and one must investigate how effectively the unofficial circulation of this unlegitimated power encroaches on the constitutionally regulated circulation of power.

Chap. 8 : Civil Society and the Political Public Sphere

• The communication structures of the public sphere are linked with the private life spheres in a way that gives the civil-social periphery, in contrast to the political center, the advantage of greater sensitivity in detecting and identifying new problem situations.

• Naturally, there are other ways in which issues develop, other paths from the periphery to the center, and other patterns involving complex branchings and feedback loops. But, in general, one can say that even in more or less power-ridden public spheres, the power relations shift as soon as the perception of relevant social problems evokes a crisis consciousness at the periphery.

• Aware of, and referring to, changed contexts, such citizens want to overcome in practice the tension between social facticity and validity. Although legal theory cannot adopt this participant perspective as its own, it can reconstruct the paradigmatic understanding of law and democracy that guides citizens whenever theyform an idea of the structural constraints on the self-organization of the legal community in their society.

• Historical constitutions can be seen as so many ways of construing one and the same practice-the practice of self-determination on the part of free and equal citizens-but like every practice this, too, is situated in history. Those involved must start with their own current practice if they want to achieve clarity about what such a practice means in general.

Chap. 9 : Paradigms of Law

• Expressions like "social ideal," "social model," "social vision," and even simply "theory" have become generally accepted ways of referring to a social epoch's paradigmatic understanding of law. Such expressions refer to those implicit ideas or images of one's own society that provide a perspective for the practices of making and applying law. These images orient the project of realizing an association of free and equal citizens. However, the historical studies of changes in legal paradigms-as well as doctrinal contributions to the paradigm debate-are limited to professional interpretations of existing law. A paradigm is discerned primarily in important court decisions and usually equated with the judge's implicit image of society.

• The priority of the democratic constitution over private law meant that the normative content of basic rights henceforth had to unfold within private law itself through an active legislature and courts.

• Most important, restrictions on the classical liberties in the "social" sphere (as distinct from broader or narrower private spheres) certainly cannotbe traced back to the interference of other legal principles (such as social justice or social responsibility). What appears as a restriction is only the flip side of the enforcement of equal individual liberties for all. This is because private autonomy, in the sense of this universal right to equal liberties, implies a universal right of equality, that is, the right to equal treatment according to norms that guarantee substantive legal equality.

• In the final analysis, the legitimacy of law depends on undistorted forms of public communication and indirectly on the communicational infrastructure of the private sphere as well. This is the key to a proceduralist understanding of law. After the formal guarantee of private autonomy has proven insufficient, and after social intervention through law also threatens the very private autonomy it means to restore, the only solution consists in thematizing the connection between forms of communication that simultaneously guarantee private and public autonomy in the very conditions from which they emerge.

• The project of realizing the system of rights-a project specifically designed for the conditions of our society, and hence for a particular, historically emergent society-cannot be merely formal. Nevertheless, this paradigm of law, unlike the liberal and social-welfare models, no longer favors a particular ideal of society, a particular vision of the good life, or even a particular political option. It is "formal" in the sense that it merely states the necessary conditions under which legal subjects in their role of enfranchised citizens can reach an understanding with one another about what their problems are and how they are to be solved. The procedural paradigm is certainly connected with the self-referential expectation of shaping not only the self-understanding of elites who deal with law as experts but that of all participants. But this expectation does not aim at indoctrination and has nothing totalitarian about it-to anticipate an objection that, though far-fetched, is leveled against discourse theory again and again.

Quotes about Between Facts and Norms

• In such declarations lies the core strategy of Between Facts and Norms. What they trace is the continual movement of a theoretical shuttlecock, from the optative to the indicative and back again, that never comes to ground at either end. If Habermas’s account of law and democracy is taxed with a fundamental abstraction from the empirical realities of a political order in which the formation of a popular will is at best fitful or vestigial, it can refer to its counterfactual vocation. If it is taxed with a complete lack of any specification of a desirable alternative, it can refer to the value of what already exists, in a bedrock of communication that only needs to be fulfilled. The result is a theory that answers to the responsibility neither of an accurate description of the real world, nor of critical proposals for a better one. It operates instead in a no man’s land between the two, in unwitting mimicry of the title of the book – not law as a mediation, but philosophy as a passe-passe between facts and norms. What actual criticisms of the social order issue from the ‘critical standard’ it offers? Where precisely are we to find the ‘efficacity’ of the idealizations it discerns in existing practices, and why are these ‘unavoidable’? Just how ‘partial’ is the inscription of norms in observable conducts, and how ‘distorted’? What proportion of reality do the ‘particles and fragments’ of reason add up to? Such questions are beyond the remit of the theory, which is designed to elude them. Its effect is apologetic. Our societies are better than we know.
  • Perry Anderson, Spectrum (2005), Ch. 5 : Norming Facts: Jürgen Habermas

• The centred image of deliberative democracy implicitly thinks of the democratic process as one big meeting at the conclusion of which decisions are made, we hope justly. In contrast to this image, with Habermas I advocate a ‘decentred’ conception of politics and society. According to this concept, we cannot conceive of the subject-matter of democracy as the organization of society as a whole. Society is bigger than politics and outruns political institutions, and thus democratic politics must be thought of as taking place within the context of large and complex social processes the whole of which cannot come into view, let alone under decision-making control.
  • Iris Marion Young, "Democracy and Justice" in Inclusion and Democracy (2000)