I read Jurgen Habermas' Between Facts and Norms several years ago during the time when I was leaving academia for the political life. At the time I was working in the (SA) state parliament as an environmental researcher as well as writing a book (uncompleted) on the River Murray in academia.
I've had lost interest in Habermas due to the extent of his formal Kantian turn at the expense of the Hegelian strand in his thinking. I had read Between Facts and Norms as it was a working out of the legal and political implications of the earlier Theory of Communicative Action (1981). It was a continuation of (and a bringing to fruition?) the project begun with The Structural Transformation of the Public Sphere way back in 1962.
That project was very attractive for someone working in the political life. I found myself remembering Between Facts and Norms when I returned from three days in Canberra. There I saw a triumphant, arrogant Liberal/National Government in action and probably in power for six years. I kept on wondering what stood between the use of their political muscle and the wellbeing of Australian citizens. I found I had returned to Habermas' duality of system and lifeworld, and then realized that I was tacitly pitting the ethical life of the life world against the economic political system.
What else could stand against the excesses of the triumphant, muscled up conservatives? A similar question and situation also exists in the US.
Certainly not the huffing and puffing of the federal Australian Labor Party (or Democrats in the US) whilst they are in opposition. They're both lost in the political wilderness having identity problems. The High Court (Supreme Court in the US) then? The conservatives are itching to control that guardian of the constitution through new appointments over the next six years.
Or the media as the fourth estate acting as the watch dogs of democracy? Highly unlikely. Those journalists who are not on a government drip feed and not deeply partisan are few and far between.
So I returned to Habermas. Where else is there to go? I trawled what I could remember of Between Facts and Norms.
I could not remember that much. From memory Habermas had argued that legitimate law-making is generated through a procedure of public opinion and will-formation within our parliamentary and judicial institutions. These institutions, in turn, have their foundation in the constitution.
That is right, but where was the operation of the relations of power in that scenario? I could not remember. Power was a weak point in Habermas--he was just too Kantian. What I did know was that those academics who wrote about the Australian constitution (eg., Greg Craven's Conversations with the Constitution) do not even mention Habermas. Grand theory has little relevance to the constitutional lawyers.
I was most taken with the way Habermas had endeavoured to overcome the (positivist?) gap between norms and facts through the medium of law, and then to argue that law gives legitimacy to the political order and provides the political/economic system with its binding force.
That always struck me as right. Habermas always had a good historical understanding of the effects of positivism. He had not entirely dumped his Hegelian heritage.
From memory the legitimation of the political order of parliamentary democracy under liberalism by the rule of law is premised on the separation of law from morality. Morality is then understood as a personal matter of concrete but subjective moral-practical concerns; whilst law, as a social institution with external force, materializes abstract normative standards for the whole of society.
As I understood Habermas this separation between law and morality in turn, was crucial for the differentiation of system and lifeworld. For Habermas system refers to the independent functioning of the steering media of money and power. The legal norming of money and power enables the uncoupling of the economic and political systems from the lifeworld. It is the law that both institutionalizes the independence of economy and state from lifeworld structures and establishes the normative ‘anchoring’ of the steering media of money and power in the lifeworld.
I had understood the law in terms of instrumental reason: modern law had been positivized into a functional, technical system that seems to have suspended any need for moral deliberation. The only justification is legal and so we have the technical administration of the law as made by parliament. And yet we have the intrusion of the conservative Lyons Forum into the political system?
It was a bit of a puzzle. Maybe law had normative content? Did not the conservatives rail against the activist judges for making the law--eg., reading rights into the Australian constitution? Maybe the problem was the positivist understanding of law?
Well, I thought that it was.
From memory, Habermas had argued against the positivization of the legal order by saying that it displaced the moral justification of law but that it did not do away with ethical principles. Did not the modern legal system stand in need of moral justification in terms of the rightness of norms? Did not this justification need to be connected to the ethical life of people in their lifeworlds?
After all in the political conflict about returning water to the River Murray as environmental flows law and morality are closely related. It is wrong for water in the Murray-Darling to be overallocated and right to cut back those over-allocations to restore health to a very stressed river. That environemtnal politics presupposes a moral grounding of law of some sort.
I go all hazy at that point. As I do not have Between Facts and Norms to pick up and re-read I am unsure how Habermas addresses the normative validity of law.Posted by Gary Sauer-Thompson at November 21, 2004 04:03 PM | TrackBack