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Political Philosophy

Habermas’ Between Facts and Norms:
Legitimizing Power?

Abdollah Payrow Shabani
University of Ottawa

Apshaban@ccs.carleton.ca

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ABSTRACT: To overcome the gap between norms and facts, Habermas appeals to the medium of law which gives legitimacy to the political order and provides it with its binding force. Legitimate law-making itself is generated through a procedure of public opinion and will-formation that produces communicative power. Communicative power, in turn, influences the process of social institutionalization. I will argue that the revised notion of power as a positive influence that is produced in communicative space runs contrary to Habermas’ original concept of power in his theory of communicative action where power is understood as a coercive force that has to be avoided in order for the discursive situation to prevail. As such, I believe that the introduction of communicative power and its close tie to ‘legitimate law’ and political system greatly reduces our critical ability with respect to political systems as exercised in liberal-democratic states. In addition, I will argue that his revision alludes to a redrawing of the boundaries between the life-world and the system in favor of the latter, and consequently indicates a shift to the right in Habermas’ latest work.

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To overcome the gap between norms and facts, Habermas appeals to the medium of law, which gives legitimacy to the political order and provides the system with its binding force. Legitimate law-making itself is generated through a procedure of public opinion and will-formation that produces communicative power. In its turn, communicative power influences the process of social institutionalization.

I will argue that the revised notion of power as a positive influence that is produced in communicative space, runs contrary to Habermas’ original concept of power in his theory of communicative action where power is understood as a coercive force that has to be avoided in order for the discursive situation to prevail. As such, I believe that the introduction of communicative power and its close tie to "legitimate law" and political system greatly reduces our critical ability in respect to political systems as exercised in liberal-democratic states. In addition, I will argue that this revision alludes to a redrawing of the boundaries between the life-world and the system in favour of the latter, and consequently indicates a shift to the right in Habermas’ latest work.

The treatment of the role and meaning of the concept of "power" within the theory of Jurgen Habermas, as it was elaborated in the two volumes of The Theory of Communicative action and later in Moral Consciousness and Communicative Action,(1) has undergone some significant changes in his latest work: Between Facts and Norms.(2) In this new book he introduces the term Communicative power which has to be seen in the context of his ambitious project of theorizing deliberative democracy, or, in his words "government by law". (BFN, p.132) According to the advocates of deliberative democracy, citizens’ participation in the democratic process has a rational character. Deliberative democracy explains the process of opinion and will-formation as a public discursive activity where citizens are engaged in argumentation that is aimed at promoting the more generalizable interests by the force of a better argument. View in this light, Habermas’ present project is an imposing attempt to overcome the charges of emptiness and ineffectiveness, leveled against his "discourse ethics" that results from the gap between the normative and the empirical, by drawing out the political, legal, and institutional implications of the theory. Habermas’ solution, as stated at the end of both TCA and MCCA, is that discourse ethics needs to be complimented by a theory of socialization that accounts for the institutionalization of discourse ethics. (TCA, Vol. II, p.173-74; MCCA, p.209) He believes that,

With the discourse ethics as a guiding thread, we can indeed develop the formal idea of a society in which all potentially important decision-making process are linked to institutionalized forms of discursive will-formation.(3)

In Between facts and Norms, Habermas presents a social theory that addresses the tension between moral norms and practical context by legal institutionalization that is based on discursive procedures.

The tension between facticity and validity—as the German title of the book Faktizitat und Geltung suggests—appears at different levels. The internal aspect of this tension can be seen between law as demarcating the range of one’s actions and choices, which are social facts, and law as connected with a universalizable principle of rights, which is the source of law’s legitimacy. To ensure an impartial justification of norms in establishing an account of a legitimate legal system, or civil society, the discourse principle "D" states: "Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourse." (BFN, p.107)(4) According to Habermas, this principle is a norm that applies to a broader set of actions than moral actions. The discourse principle is, then, followed by the principle of universalizability "U" and the principle of democracy. Adopting a Kantian perspective Habermas take U to refer to individual autonomy and rights that function as a normative basis for moral argumentation, and principle of democracy(5) to sate that "only those statutes may claim legitimacy that can meet with the assent (Zustimmung) of all citizens in a discursive process of legislation that in turn has been legally constituted." (BFN, p.110) But unlike Kant, who subordinates the legal norms to moral ones(6), Habermas sees the relation between the legal norms and moral ones as co-original; that is to say, he sees them as equiprimordially presupposing each other.

The principle of discourse can assume the shape of a principle of democracy through the medium of law only insofar as the discourse principle and the legal medium interpenetrate and develop into a system of rights that brings private and public autonomy into a relation of mutual presupposition. (BFN, p.128)

Hence, legitimate lawmaking is understood as a result of institutionalized procedures that convert citizens’ practice of self-determination in the form of communicative and participatory rights into the binding decision of political power. Habermas sees modern law as a system of rights comprised of a set of abstract rights recognized by all citizens in the form of a constitution or moral codes. Viewed as system of rights, modern law brings together popular sovereignty and human rights, showing the co-originality of private and public autonomy. So Habermas writes,

By securing both private and public autonomy in a balanced manner, system of rights operationalizes the tension between facticity and validity, which we first encountered as a tension between the positivity and legitimacy of law. (BFN, p.129)

This guarantee, Habermas contends, would avoid the mistake characteristic of both the liberal and civic republican tradition each tending to emphasize one form of autonomy as the basis of legitimacy while ignoring the other. In his reconstruction of legitimate law, rather than reducing one aspect of autonomy to the other, human rights and popular sovereignty are equiprimordially juxtaposed. The medium of law, then, maintains the tension between the concrete context of claims of reason and their context-transcending idealization, without allowing the tension to be resolved in favour of either of the two poles. In light of such a construct of modern law, the central claim of the book comes to the fore: there is an internal relation between the rule of law and democracy. (BFN, p.449)

According to Habermas modern societies exhibit a tension between validity claims of legal order expressed by constitutional and democratic institutions and different forms of social and political power that intervene and interrupt the exercise of legitimate lawmaking. This tension is another aspect of the tension between facticity and validity, one that refers to "the internal relation between law and politics". (BFN, p.133) Confronting this tension, the task of the theory is to provide an account "of the legitimacy of a political order and legitimation of the exercise of political power." (BFN, p.132) In this context, state power is seen as what reinforces the system of rights that governs the interaction of equal citizens. Habermas believes that the analysis of the relation between law and power will not bear fruit unless it is connected to an account of public reason. For him,

[t]his latter account must ultimately refer to democratic process of "opinion and will formation" in the public sphere. As a formation of opinion and will, public discourse is not merely a cognitive exercise but mobilizes reasons and arguments that draw on citizen’s actual source of motivation and volition. It thereby generates a "communicative power" that has a real impact on the formal decision making and action that represent the final institutional expression of political "will". (BFN, p. xxviii)

Therefore, in analysing the internal tension of the rule of law, Habermas supplements the account of state power and legal procedures with an account of public discourse. This account is designed to connect "the informal discursive sources of democracy with the formal decision making institutions." (BFN, p. 169) Hence, there is a circular and reciprocal relation among communicatively generated power, legitimate law, and state power that, Habermas believes, are co-originally juxtaposed. In his words,

Informal public opinion-formation generates "influence"; influence is transformed into "communicative power" through the channels of political elections; and communicative power is again transformed into "administrative power" through legislation.(7)

This influence, carried forward by communicative power, gives law its legitimacy, and thereby provides the political power of the state its binding force.

According to Habermas the co-originality of legitimate law and political power suggests that there is a functional connection between them. After they serve their intrinsic functionsrealization of collective goals or maintenance of the system for power, and stabilization of behavioral expectation for law, 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 they have different perspectives: "Law requires a normative perspective, and power an instrumental one". (BFN, p. 482) This difference leads Habermas to propose a distinction in the concept of the political itself which is constant with the duality of normative and instrumental perspective. He thus distinguishes between communicative power and administrative power. (BFN, p.483)

The introduction of this distinction, I believe, indicates a redrawing of the boundary between the life-world and system in favour of the latter. I will shortly elaborate on this revision, but first we need a brief description of Habermas’ reconstruction of the notion of communicative power. In constructing the concept of communicative power, he relies on Hannah Arendt’s view of "power as the potential of a common will formed in noncoercive communicative" (Macht), that is opposed to power as in "violence" (Gewalt). (BFN, p.147-48)

In light of this description, it appears that what Habermas used to call "power" is now called "violence" as the imposition of one’s will to manipulate or coerce another. What was previously known as a "discursive situation", freed from external constraints that amounted to intersubjective agreement, is now referred to as "communicative power" that 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. Habermas draws the following implication,

Here the law arising from renunciation of natural violence serves to channel a legitimate force identified with power. Arendt’s distinction between power and violence negates the classical task of finding a substitute for resource of justice that once flowed from a self-legitimating natural law. (BFN, p. 149)

The meaning of communicative power has thus been far removed from the negative connotation of the original concept of power. As a legitimizing force behind administrative power, communicative power is positive, necessary, and co-original with administrative power and legitimate law. It is apparent at this point that there has a significant move from the original concept of power as influence that distorts the discursive situationwhich was to be avoided—to the constructed notion of communicative power. Communicative power is again described as a sort of influence which is the fruit of agents’ consensual interaction rather than the result of their conflictual relation. Now, in respect to the possible implications of this new characterization of power I would like to rise the two following points.

I

The first question we need to ask is whether Habermas’ theorizing has closed the gap between the normative and the empirical as he intended. In the first glance it seems that his distinction between power and violence that allows for a legitimate use of power in the life-worldly domain is an improvement over his original treatment of power. He believes that his differentiation between power as generated communicatively and power as coercive influence or violence is capable of discriminating between a power which deserves to be esteemed and a power which deserves to be disparaged.(8) However, even, on Habermas’ own account, it is only the legitimate law-making as engendered by communicative power that enjoys a normative perspective, while the perspective of political power remains an instrumental one steered by the media of money and repressive power. Hence, in the end it still seems that in so far as the question of normativity goes, it still pertains to the communicative domain of life-world separated from the economic and political subsystems. And in so far as the question of the repressive nature of power goes, it is still the steering mechanism behind the systemic domain of political power. In other words, the original gap remains unbridged. In this sense, one can say that despite the change of terms the content of what Habermas meant by power remains the same, namely, in order for democracy and justice to prevail the communicative process of public and will and opinion-formation should not be guided by any influence but the force of better argument. This ideal could be reached in the life-worldly domain but not in the systemic domain.

However, if we read the introduction of communicative power and its close connection to administrative power via the medium of law to suggest that the systemic domains of politics too can be oriented towards understanding and be separated from the influences of the coercive forces of money and power, then we are witnessing a significant change in the thrust of Habermas critical theory. To suggest that the political subsystems can be governed normatively alludes to rethinking of his original position that, as I mentioned earlier, pertains to redrawing of the boundary between the life-world and system. This revision brings us to my second point.

II

Having realized, in his Structural Transformation of the Public Sphere, that the derivation of the source of legitimacy for Western democracies from the specific characteristics of political public sphere of late capitalism is too exclusionary and restricting, Habermas has moved towards grounding democratic legitimacy in the institutionalization of discursive interaction. To achieve this end, he constructs the concept of communicative power as what possesses the best of both worlds (i.e. the life-world and system): it is democratically generated and aimed at reaching an agreement, while exercising influence over the processes of political decision-making giving them legitimacy. Consequently, in aligning communicative power, legitimate law, and state power, Habermas’ approach seems to have legitimized the political power as exercised in Western democracies. But, in doing so, Habermas risks robbing us of our critical ability. For, tying the existing political and legal orders so closely to communicatively generated power as their source of legitimacy seems to immunize the political power to criticism. In seeing the principle of opinion and will-formation as underlying presupposition of both political system and the life-world by overstepping its boundary. However, if one, like Habermas, believes that "law has a legitimating force only so long as it can function as a resource of justice," (BFN, p. 145) then having already attributed legitimacy to political powers of Western societies leaves no room for the test of justice.

The implication of this change is sever because it suggests that, in so far as we live in Western liberal-democratic states, there is no illegitimate use of power; an assumption that ultimately disarms us of our critical ability to reproach the system. This is why I venture to say that Habermas’ BFN marks a shift to the right because it results in legitimating the political system of capitalist economy. This would be a costly shift, for if the goal of political action in deliberative democracies is to reach consensus –around the more generalizable interests—as its ultimate telos, then the voices of difference in today’s pluralist societies, which are less generalizable or not generalizable at all, cannot be heard and hence are excluded from the democratic process of opinion and will-formation.

Given Habermas’ dedication and commitment to the issue of justice, however, it is obvious that he could not accept the above implication. As a response, he would draw attention to the reflexivity of discursive situation, which involves the self-critical character of communication. The reflexive nature of discourse refers to the ideal supposition that all validity claims in discourse are subject to critical evaluation. Habermas believes that the constitutional courts in liberal-democratic states are best suited to play this reflexive role.(9) Hence, according to the reflexive character of deliberative democracy, everyone is able to challenge and contest the accepted norms and traditions in the public sphere. The problem, however, is that while discourse’s reflexive mechanism allows to critique the normalizing effect of the generalizable interests, it does not provide a procedure through which the less generalizable interests of the weaker voices and minorities generate any influence over legal and political institutions, for even in discursive terms, these kinds of interests cannot amount to an all encompassing agreement. It is simply na´ve to think that in the process of opinion and will-formation the communicative power of the lobby groups and that of minority groups exercises the same influence. Like any abstract moral construct, the legitimate law remains incapable of animating the citizens of modern societies to engage discursively and deliberate in the procedures of legal and political decision-making. The ideal of communicative power is generated and injected from the bottom. In order for it to exercise influence over the system, it needs proper institutions that secure its emergence. But, institutionalization is organized and legislated from the top. Due to this gulf between facts and norms, their reciprocal need for each other is never satisfied, and like a dog chasing its tail, it always remains one step behind.

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NOTES

(1) J.Habermas, The Theory of Communicative Action, Beacon Press, Boston, 1987, (hereafter referred to as TCA); and Moral Consciousness and Communicative Action, MIT Press, 1990 (hereafter referred to as MCCA)

(2) J.Habermas, Between Facts and Norms, MIT Press, 1996, (hereafter referred to as BFN). Most of the commentaries so far produced on Between Facts and Norms by philosophers of law and legal theorists –J.Bohman (1994), K.Baynes (1995), D.M.Rasmussen (1994)—have mainly focused on legitimizing role of law in relation to the political system and democracy, while there has been a void in respect to examining the role of Power in regard to the legitimacy of law itself. My treatment of the concept of power in Habermas’ architectonic is an effort towards filling this void.

(3) J.Habermas, "A Reply to my Critics" in Habermas: Critical Debates, ed. By J.B.Thompson & D.Held, MIT Press, 1982, p.262

(5) The word "all" in this formulation of the principle of democracy sets the standard so high that it makes satisfying the principle impossible because in our diverse and pluralist society of today rarely any claim meets with the assent of "all". This high demand of the principle of democracy already robes Habermas’ new elaboration on the deliberative model of its substantive force; once again confronting it with the Hegelian charge of emptiness and ineffectiveness.

(6) Habermas’ claim that Kant subordinates law to morality—because the legitimacy of law is derived from the categorical imperative—can be contested. If one sees that for Kant the categorical imperative underlies both law and morality, one can object to the use of the term "subordinate" by Habermas as an inaccurate description of the relation between law and morality.

(7) J.Habermas, "Three Normative Models of Democracy", in Constellation, Vol. I, No:1, 1994, p. 8

(8) J.Habermas, "The Entwinement of Myth and Enlightenment: Rereading Dialectic of Enlightenment", in New German Critique, No:26, 1982, p. 27

(9) Habermas dedicates chapter six of BFN to elaborate on the role of constitutional adjudication.

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