After just reading two articles dealing with Jurgen Habermas’s theory of communicative action, I think I can take a tentative step towards fleshing out my arguments for the role of dialogue in the definition of law. According to this helpful paper, which summarizes Habermas’s theory of communicative action (and quotes from his book The Theory of Communicative Action):
“What Habermas attempts is to identify and reconstruct ‘the rational internal structure of processes of reaching understanding’ in terms of ‘the validity claims of propositional truth, normative rightness, and sincerity or authenticity’: ‘the concept of rationally motivated agreement, that is, one based on the intersubjective recognition of criticizable validity claims’; and ‘the concept of reaching understanding as the cooperative negotiation of common definitions of the situation.’”
As contrasted with instrumental rationality, Habermas proposes the ubiquity (and primacy) of “communicative rationality”, which in his own words “carries with it connotations based ultimately on the central experience of the unconstrained, unifying, consensus bringing force of argumentative speech, in which different participants overcome their merely subjective views and, owing to the mutuality of rationally motivated convictions, assure themselves of the unity of the objective world and the intersubjectivity of their lifeworld.” Rationality itself, according to this theory, turns on the ability of a speaker to justify with convincing grounds or reasons the validity of his communicative statements, dialogically – in the course of conversation – and hence intersubjectively . . . in other words, through persuasion. This conception of rationality looks to be grounded in a consensus theory of truth, and Habermas himself appears to concede as much: “The condition for the truth of statements is the potential agreement of everyone else.” (While I have doubts about how far this truth-criteria can be pushed in the context of scientific discourse, I believe it touches the core nature of “political truths”, such as questions about the distribution of “power”.)
Habermas links communicative rationality to a theory of argumentation, in which “[a]rgumentation refers to ‘the type of speech in which participants thematize the contested validity [claims of an expression] and attempt to vindicate or criticize them through argument,’ and an ‘argument contains reasons or grounds that are connected in a systematic way with the validity of a claim of a problematic expression.’ … [A]rgumentation aims to produce cogent arguments, which bring about intersubjective recognition of validity claims and transforms opinion into knowledge. … Each aspect [of argumentation] can be respectively said to aim at ‘the assent of a universal audience,’ ‘the attainment of a rationally motivated agreement,’ and ‘ the discursive redemption of a validity claim.’ … Thus, for Habermas, the rationality of social action is and should be assessed in relation to the validity claims [whose acceptance prompted such action] and the possibility of reaching agreement in critical discourse, and thus rationality is conceived as inherent in communicative practice which is intrinsically oriented towards consensus.”
Habermas identifies three types of validity claims that are at least implicit in every communicative expression: claims of propositional truth, claims of normative rightness, and claims to sincerity. Each of these types can be “thematized” by an expression (by which I understand Habermas to mean ‘made more cognitively salient’, or ‘emphasized’), even though all are actually present, giving rise to a set of more-or-less distinctive speech acts: constatives, regulatives, and expressives, respectively. (It should be noted that Habermas includes a larger number of speech acts in his own classificatory scheme.)
Lawrence Solum has written (Freedom of Communicative Action, 83 Nw.U.L.Rev. 54 (1989)) that “[u]nder ordinary circumstances, the participants will share a common set of norms or facts to which appeal may be made in the course of argumentative discourse. Where there is disagreement about specific facts or norms, the participants may still agree on the appropriate standards or criteria by which controversial norms or facts may be judged. … In some situations, however, even the standards or criteria of truth and rightness are the subject of controversy; in such cases the continuation of the attempt to reach agreement demands a move to theoretic discourse. Rational argumentation, thus, [as Habermas puts it] ‘can be conceived as a reflective continuation, with different means, of [communicative] action oriented to reaching understanding.’” Solum describes this overall process as “discursive will formation.”
I’d like to propose that “communicative action” – a process whereby validity claims are raised in speech, discursively defended in argument, and accepted or rejected as a basis for action – underlies the phenomenon of “law.” In fact, I believe “law” can be thought of as a special case of communicative action, wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.
First, notice the extent to which speech underlies the effectuation of “law.” In the American system of government, a subset of the population known as Congress-people discuss amongst themselves a new norm-proposal. A formal vote is taken (itself a communicative act, rooted in assessments of the normative validity of the proposal on non-positivist grounds) and the approved norm is then written and conveyed to an authorized publisher, who records the norm in text. Copies are manufactured and distributed to judges, lawyers, and other interested parties, including the public. Each reading of the text completes an act of communication. When a violation of the norm is alleged, this text is invoked by one private party in a specialized discourse-forum known as a court. Arguments for action are conveyed to a judge by the laywers for each party (who have learned the facts of the case from their clients, and the law from published sources), and each lawyer invokes Congressional, judicial, or Constitutional speech (i.e., officially promulgated norms) as the grounds for or against the validity claims of “rightness” implicit in their requested rulings. The judge assesses the persuasiveness of the grounds for the competing validity claims and reaches a conclusion, which he communicates to the parties and larger community in the form of an “opinion”. Depending on the behavior of the losing party, this judicial speech can employed as the grounds for the validity claims implicit in requests, communicated to enforcement authorities, for the taking of enforcement action. The dialogic chain continues on, from chief of police to beat officer, from officer to officer, from officer to arrestee, from officer to jail guard, from officer to judge hearing habeus corpus petition, on and on… each link a case of conversation, of dialogue, in which repeated efforts to induce action by listeners is pursued by offering grounds to support the implicit (or explicit) normative validity of action, typically by reference to legal speech, itself typically in the form of texts.
To my mind, the importance of law as a socially ordering force lies in the ability of its *invocation in dialogue* to structure individual behavior (and I hope to have by now impressed on you the fundamental, utterly central role of speech in generating these effects). But I don’t think the truly remarkable feature of law lies in the propositional validity claims which are but one facet of the expressions that comprise links in the institutional ‘chain of dialogues’ that generate social order out of legal pronouncements (i.e., whether the statement “Congress passed a law saying X” is true) – although the validity of these propositions is surely a necessary condition for the success of “law.” Instead, it’s the implicit normative validity claims underwriting persuasion along this chain – the claims to a proposed action’s rightness – and their discursive justifications, that are most distinctive. In general, the mere fact that a governmental authority promulgated a norm is taken as *sufficient ground* for acceptance of a normative validity claim, and hence the promulgated norm, as a basis for action. Herein lies what I’ve been calling the ‘habit of legitimacy recognition.’ I think this simple dispositional response and its stimulation in the course of dialogue (through, for example, the invocation of positivist grounds to justify normative validity claims) is the tissue that holds the entire apparatus of state together. This is the “trust”, the voluntary acquiescence to state power, that works in place of the threat of violence as a means of organizing society and its many power-relationships. The unquestioned legitimacy of the state and its law is necessary for the efficient cooperation of so many actors; imagine the difficulty of governing if the legitimacy of the state had to be re-argued every time a demand was made in its name!
But this sedimented, automatic habit of legitimacy-recognition can be destabilized. Consistent with the habit’s important role in gilding grounds for the justification of normative validity claims, individual speakers may contemplate such claims with the help of their *entire* array of tools of normative evaluation, including moral principles. (Hence my use of the term “coherence theory of law” above.) As the moral propriety of a legal norm decreases, we might expect moral grounds for rejection of the normative validity of the legal norm (defined as a speech act to which the propositional validity claim of promulgation by a legal authority can be justified discursively) to overwhelm the sufficiency of “positivist grounds” for the acceptance of its normative validity. At this point, the links in the dialogue-chain that I’ve described as the very essence of the state may begin to snap, as communicative action between dialogue participants results in either consensus away from action justified on positivist grounds (and towards action whose claim to normative validity is justified on alternative, perhaps moral grounds), or intractable disagreement (perhaps rooted in the varying intensity with which the persuasiveness of moral and positivist grounds are felt). And we can expect the apparatus of the state (through the individuated yet communicatively coordinated actions of its remaining constituent actors – i.e., those still persuaded to cooperate on positivist grounds) to resort to violence as an alternative to rational persuasion through communicative action as a means of enforcing obedience and thereby preserving the state. If a critical mass of individuals begins to reject the normative validity of positivist grounds as a basis for the acceptance of proposed action, we might expect the general imperative of coordinated action that underlies all human societies to result in the formation of replacement authorities (again, dialogically), whose acts of norm-promulgation are more acceptable as a ground for the acceptance of the normative validity claims underwriting voluntary obedience to the promulgated norms themselves. Herein lies the texture and mechanism of secession, civil war, and a host of other social phenomenon that signal the breakdown of a formerly unitary political society. The terms of political dialogue change – via the changed justifications, or grounds, offered to defend validity claims – and collective action re-orients, one conversation at a time.
There is a teleological sort of thing going on with the Habermassian argument. We’re in a territory where it is our goal to reach mutual understanding, and this goal acts as the foundation (er, ceiling?) of communicative rationality.
But it could be observed (in the fretful-philosopher tone) that this is epistemically even more fantastic than the problem of establishing that there is an external world. In the latter, we’re trying to justify to ourselves that the phenomena that we are inundated with are caused by something “real”. But in the former, we’re setting up a standard whose ultimate validity is based upon something so nebulous and auto-eroding as “mutual understanding”. At least with the external world, vulgar appearances don’t shut themselves off according to either my whims or to the world’s fancies. But people shut up all the time, leaving me in the dark about the state of their understandings — these “appearances” are spotty and intermittant. Also, we have some sort of idea about what the world “is”, since we have all kinds of physics at our disposal. The cues associated with mutual understanding are not quite so clear, and our understanding of understanding is spotty. This is manifest in the fact that people misunderstand while thinking they understand, and understand when they think they don’t. Both of these aporias suppose that there is mutual good will in a conversation (a bare minimum to postulate if we want to even be talking about the same thing Habermas presumably is). But good will alone is nevertheless insufficient for mutual understanding.
This is not to say that we have good reason to believe that there is never any mutual understanding. It is just to say that one doesn’t have to be a cynic to concede that mutual understanding is difficult to achieve, and so, we should be doubtful as to whether it is the dominant force which props up the law. It certainly doesn’t appear to be the way that courtrooms operate. Quite the opposite. When trying to justify to myself the “mutual understanding” doctrine of rationality, while still admitting that the stereotypical courtroom is “rational” without being in the same timezone as a pursuit of ‘mutual understanding’, I could only suppose that what we see in vulgar debate and informal logic is more properly called “the ghost of departed reason”. I can accept that, but I wonder if anyone else would. (Though admittedly my experience of the courtroom is limited to episodes of Matlock. Perhaps that is telling.)
That being said, I really *want* to believe in a Habermas-style argument. He has broken ground in places where Grice feared to tread. But experience suggests to me that a) communicative rationality must be based upon strategic or instrumental action in most cases, because the desirability of reaching “mutual understanding” has to be cultivated (and constantly renewed); and b) communicative action is, in principle, a kind of strategic action, since strategic action is mere goal-directed behavior, and the reaching of “mutual understanding” is a goal.
Moving on to Matt’s contribution: for him, law is a kind of communicative action “wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.” The first thing I noticed is that this is a positivist’s account, so long as we construe “authority” in a strict sense of social authority. If we admit that things like “conscience” are sorts of “authorities”, then I suppose it wouldn’t be positivistic; but I’m not sure entirely what Matt’s intent was there, or how far he was willing to extend the scope of the claim. As he goes on to describe the “coherance theory of law”, we get less of a positivistic vibe, and more of an eclectic one; and this emphasis upon the social embeddedness of law is to the good, following the lead of Russell, (possibly) Dworkin, and modern blawgers like Jurisdynamics. But whatever moves are being made, they are surely not compatible with the Weberian formulation of law as what is justified by the authority. The ‘coherance’ story of how civil strife emerges is likely correct, but it is not clear how we have gotten from point A to point B, or whether the tools that have been laid out (namely the definition of law as given) are able to take us there.
The second thing — the centrality of meaning and communication to law — is surely preaching to the choir! I’m quite impressed by the symbolic interactionists, and they motivated my interest in philosophy of language. I think that’s likely true for the whole roster of L&S writers.
By Ben Samuel Nelson for lawsocietyblog.com #Constructivism #Philosophy #Law and Society
This work is published under a Creative Commons Attribution-Noncommercial 2.5 License.
I should preface my comments with the remark that I admire greatly Habermas’s work, and I rather think it’s a shame that he’s the less discussed neo-Kantian philosopher (relative to John Rawls). I should also like to append to that last statement that Habermas is in many ways the more American of the two thinkers (as the joke about their prose goes, Habermas is a German read in translated German such as one would find in engineering manuals, but Rawls is an American of which the same might be said).
Habermas has said quite a few times that what he mostly greatly admires about our philosophical tradition is Pragmatism. In his own work, the influence of Charles Sanders Peirce is most apparent in the superstructure of his thought, and that of John Dewey as well in his thinking on enlightened democracy especially. In his legal theory, one sees a lot of H.L.A. Hart, who’s also, I think – perhaps controversially – a rather pragmatic thinker in Habermas’s work. So by way of comment on this intellectual lineage, I’d hope to say something substantive.
Early on his most recent masterwork, Between Facts and Norms, Habermas cites Peirce for the proposition that “What applies to processes of reaching understanding within the community of investigators, however, applies mutatis mutandis for everyday communication as well.”
I’m not so sure, though, that Peirce would himself agree with that statement, much less as a characterization of his own thinking. To be sure, the pragmatic revisability of scientific epistemology – as an *attitude* – is lovely, but Peirce never in any of my readings seeks to create a scientific epistemology of ethics. To borrow a Wittgensteinian formulation, Peirce doesn’t say that the scientific language game is congruous to social-ethical language games (which isn’t to say there aren’t spots in which certain family resemblances exist between the types of discourses). Now, we can take Habermas’s thought as explication and elaboration upon those family resemblances, but it’s not clear how far, if very far at all, that gets one. Peirce said, after all, “If a proposition is to be applied to action, it has to be embraced, or believed without reservation….Thus the real character of science is destroyed as soon as it is made an adjunct to conduct. A useless inquiry, provided it is a systematic one, is pretty much the same thing as a scientific inquiry.” Once scientific inquiries carry a use, they become rather dangerous creatures, said Peirce; does that apply to the appropriation Habermas (and Karl Otto Apel) make?
Effectively Habermas’s discourse ethics of “processes of reaching understanding” becomes a second-order rule constitutive of discourses; that much I can go along with. But does it structure *all* aesthetic, ethical, political, scientific, social, etc. discourses? So now we can go about resolving our our first-order disagreements (shades of Hart, and yes, even of Rawls) with our second-order (or meta-) understanding, if it works.
Now to make some more direct comments as concerns the application of Habermas’s work made.
First off, I’m not so sure that Habermas would himself concur in what’s been said; in fact, I feel that he might disagree with so much of it. But that’s not at all to say that what’s been said is misguided in its own right.
Habermas invests norms with deontological content and values with teleological aim. Norms are universal, discretely-valued either/or (valid or invalid); and – this is my characterization – they are more on the descriptive side. Norms don’t contradict one another and form a coherent universal systematic set of norms. A norm is absolutely binding.
By contrast, values are concerned with teleology, and must be evaluated. They aren’t universal, but creatures of one – or perhaps several – lifeworlds. They can conflict, and compete with one another for maximization in a given dispute. My understanding of Habermas is that it doesn’t make sense to talk of maximizing a norm, giving priority to it – it has priority, a priori, given the communicative discourse. The structuring norms of all society are the given norms of discourse ethics itself. Values represent things that can be maximized (or minimized).
Norm-space seems to me, therefore, finite, binary-valued, and circumscribed (otherwise bump and grind against one another in Habermas’s conceptual topology). Value-space is infinite, existing as an interstitial spaces between the norms in norm-space; values are valuable, but are neither valid nor invalid in any particular situation, just more-valued or less-valued.
But values being merely statements of preferred ends in different lifeworlds, they are cognitively devoid of meaning. As Habermas says, “Values must be brought into a transitive order with other values from case to case. Because there are no rational standards for this, weighing takes place either arbitrarily or unreflectively, according to customary standards and hierarchies.”
Here, Habermas’s Kantian division-of-the faculties side takes super-precedence over his Pragmatic corridor-of-the disciplines-rubbing-shoulders. Values are legitimate or not depending on whether they can be sustained or not in communicative discourse. But given any two or more legitimatized norms, only the lifeworld’s ad hoc jurisprudence (if we restrict ourselves to legal values) determines which is given priority in a given case, not rationality.
It’s a quite sad state of affairs, which seems to me a lot like Wittgenstein’s fulminations at Russell and others not understanding the actual import of his comment that the ’silent’ second part of his Tractacus Logico-Philosophicus was the more important, since “What we cannot speak of we must pass over in silence.” His Philosophical Investigations and subsequent lectures and writings try to *speak* to that. In many ways, one could argue that Kantian metaphysics of distinct faculties holds Habermas back. He mentions the linguistic turns in philosophy – Frege and Russell – but in Between Facts and Norms there’s a puzzling absence of the man who arguably approached the most pragmatic linguistic turn – who indeed speculated at just that in On Certainty, in his last days. Wittgenstein is mentioned just once and even then in reference to H.L.A. Hart’s appropriation of Wittgenstein’s idea of family resemblances between fuzzy categories of objects. I can daresay, I feel, that Habermas labors under the picture theory of language. He, accordingly, laments value jurisprudence instead of embracing it, as I believe a more Pragmatic, but less classically Kantian (Kant’s aesthetics, as opposed to this ethics are Pragmatic, I think) thinker might.
The upshot of this is that norms are purged pure of metaphysics, but values are incessantly subjective – one can’t rationally discuss values save to observe their norm-projection, i.e., their legitimacy. Between legitimate norms, we cannot speak meaningfully/”What we cannot speak of, we must pass over in silence”, or silence all the same but in name, a jargon created over time bringing things to “a sham clarity” (an apt phrase of Martin Heidegger’s).
Although I can’t say much about Habermas’s discourse ethics, I can say with some confidence that ‘discourses’ apply to scientific investigation just as well as to aesthetic or moral ones. However, his notion of discourse, from what I can tell, is idealized. Discourses are in pursuit of mutual understanding. Not all everyday speech is a discourse, since some of it is strategic action, and that is evidently meant to be contrasted with the discourse. Given that is how I have been told to read Habermas, I am sure that I must have misunderstood his quote, “What applies to processes of reaching understanding within the community of investigators, however, applies mutatis mutandis for everyday communication as well” (since everyday communication surely involves strategic action). The context of the quote might be helpful to pull me out from the muck.
I don’t understand where norms (or rules) get their universal validity from. They seem like hypothetical stilts that originate from the combination of the choice of some values and our projection of that choice onto the world. It really seems quite bizarre to speak of “deontology” and “mutual understanding” in the same sentence, since the deontic stance seems rooted in exactly the kind of modal confusion which the universal pragmaticist tries to avoid: the confusion of speech about Me and Us with speech about The World. Perhaps the distinction between “rational” and “cognitive” deontology and “non-rational”, “non-cognitive” values may be brought to ward off any allegation that the two are linked. But that distinction, so invoked, would only underscore the big question: where on earth do norms come from? What makes them cognitive and rational if they are expressions of values?
Habermas indeed does idealize discourse, but with this I think that one must be careful. Neither with him, nor with Peirce, does one actually use the idealized discourse as the ultimate trump, a kind of simulation of talking till the end of the world. By contrast, I think that Habermas basically takes the limit – to use that notion of mathematics – of a discourse approaching ideality and he uses the ’style’ of such a conversation to generate his norms.
I’m a bit too lazy to type all of it out, but Habermas follows the his citation to what Peirce did (”What applies to processes of reaching understanding within the community of investigators, however, applies mutatis mutandis for everyday communication as well”) with, “That is, speech-act theory demonstrates the presence of entirely similar structures and presuppositions in everyday communicative practice.” He says that “in claiming validity for their utterances,” they “strive to reach an understanding with one another about something in the world.” It seems to me, though, that he means, especially when he uses that word communicative, he refers to ‘good’ discourse about “understanding” (as opposed to, say, Kierkegaard’s dialectic leading one *away* from the truth and understanding mocking Hegelian absolutism). But he does add that in “everyday use of language”, we aren’t after “exclusively or even primarily on its representational (or fact-stating) functions”, such that “ALL the functions of language” enter into use. Therefore, says Habermas, “the spectrum of validity claims takes in more than truth claims”, what he further on describes as “[t]he tension between facticity and validity.”
On legal norms, I find Habermas very difficult to pin down. With a legal norm, two things are done simultaneously, namely, (1) the legality of behavior (enforced as required by sanctions, even), and (2) the legitimacy of the rule itself (so that one can “always” follow it out of “respect for the law”).
And then, we’ve values, which are not norms….
But at all events, and unlike Antonin Scalia, I’m inclined to think of law as an open language game (or series of related language games). I disagree, however, with what’s doing the work in some of examples Matt gives, though.
To wit, in the property dispute illustration, I rather doubt that – except in the first, third, seventeenth, or so, property disputes since time out of mind) – that the landowner *persuades* by means of the landowner’s communicative action of the right to exclude being a stick in the bundle of property rights and so forth, and that because the trespasser is eminently reasonable and such a good discourse participant, she’s persuaded.
Instead, to borrow from Wittgenstein’s formulation, ‘there is a great deal of stage-setting in language’, or from Heidegger’s, we’re ‘thrown’ into a ‘lebenswelt’ with ‘given-ness’. Language and ‘grammar’ (as concept-relations) do a lot of work before we ever speak.
Do legal norms ever conflict? I’m reading the bulk of his Between Facts and Norms now, so I’m unsure as of yet. But for norms generally, Habermas says that they don’t conflict. Doesn’t that, if so, get us perilously close to a closed system?
That aside, I’m not so sure that I would want to characterize the juridical process as bringing on the ideal speech situation “trump”. Given such a proceduralist theory as Habermas’s is, is there a ‘proper’ outcome ahead of a discourse? I think that kind of ideality – and too much of it, at that – is what Habermas criticizes Ronald Dworkin over in Between Facts and Norms (among other things).
Throughout this, though, if legal norms are values in Habermas’s sense, then we’ve a quite different game, no? A largely noncognitive and irrational one, by Habermasian standards?
For illustration, let me turn back to my landowner/trespasser example. As a preface though, I think I need to specify the facts more completely (which may answer your skepticism, cosim). My original description was problematic, because the prototypical evocation of a “trespasser” is one who – *prior* to entering another’s property – is aware of the adverse claim to possession and yet proceeds anyway, hoping to avoid detection. So naturally a note of implausibility was sounded when I described a hypothetical trespasser as yielding to a legal discourse concerning “ownership”. In such a case, the trespasser is fairly clearly ‘persuaded’ by his own fear of state violence. I actually had in mind a different scenario, but because my original statement of the facts under-determined meaning, some representational wiggle-room was created and led to misunderstanding. [Interestingly, the re-statement of the landlord/trespasser example I’m about to offer is entirely consistent with the text I originally posted, though not determined by it. Curious questions of semantics, especially prototype-effects, cognitive models, and the mechanisms by which meaning is derived from text, are raised by this little miscommunication, though I’ll stay on track and shelve them for another day.] A little more specificity should nail down my intended meaning and bridge the intersubjective gap. Here goes: Imagine a pedestrian, strolling down a suburban sidewalk. He approaches a few unusually empty acres and, thinking the space must be a local park, decides to traipse through. Not more than a minute later, a figure races out of a nearby house, pointing to a hidden “No Trespassing” sign near the sidewalk and explaining that he is the owner of the property. Upon hearing this, the trespasser is duly chastened and excuses himself, recognizing fully the superior right of the owner to occupation (and exclusion). No fear of legal sanctions enters into the trespasser’s decision. Instead, being an honorable and law-abiding citizen, he simply recognizes the owner’s “right” and moves on.
A couple of observations: First, the legal concepts used -”ownership”, “rights”, etc. – are social constructions, with no real referent in the objective world. Second, the sheer conventionality of the terms and their attendant habits of legitimacy-recognition are, in a sense, primary, building-block “reasons” underwriting rationality, without any articulated justification behind them (an observation less true among the better educated, to be sure). Cosim, this may be what you mean when you refer to Heidegger’s notion of individuals being thrown into a ‘lebenswelt’ filled with ‘given-ness’. But the existence of these meaningful ‘givens’, however conventional and received, is far from a criticism of rationality. In fact, its just these kinds of social constructs around which a large amount of intersubjective consensus forms in the first place. (Think of agreement about “the principles that underlie the First Amendment”, or any given “right”. These strike me as constructs which obey a consensus theory of truth.) And its the felt phenomenological reality of these constructs ‘in the world’ that enables legal discourse in the first place. (Much like religious constructs can be spoken about, agreed upon, and made the basis of action without being ‘real’ at all.) So I do think the notions of “ownership” and “right” are doing persuasive work in my example. Third, the very conventionality of these constructs can blind us to their nature as constructs. A quick thought experiment, in which arbitrary nonsense-terms are substituted for the legal words, can demonstrate: “Hey, Tresnogger, would you mind getting off this land? I’m the Wonyore, and I have a shmitle to exclude you.”
As for whether a ‘proper’ legal outcome exists prior to discourse, I agree there isn’t one right legal solution to every legal question. But I do think there can be better and worse legal arguments, as judged by the ability of the argument to meet discourse participants’ conditions for cognitive coherence. Even as constructs, legal concepts have meaning that is not consistent with any arbitrary ordering in langauge/discourse, so there can be better and worse legal justifications. (To say that my “right” to free speech is “grounded in” Congress’s “power” to regulate interstate commerce just doesn’t make sense.) So, I’d suggest that the undeniable sense we have that a legal question ‘has an answer’ prior to discourse is a kind of hypostatization, distilled from the expectation that we will eventually reach a satisfactory conclusion about ‘what the law is’, which through processes of consensus-building becomes accepted as ‘the answer’… even though the ‘answer’ itself requires a discourse for the “discovery” (construction) of its actual form. And the most expert legal-discourse-participants – ie, lawyers, but perhaps especially judges – are probably the most capable of generating persuasive legal arguments to support legal conclusions. And because rationality, particularly in the context of social constructs, is rooted in consensus and the coherence of discursive justification, their work product is likely to be ‘the best (or proper) legal answer’ in any given case – by which I mean the most persuasive.
Cosim: As a final thought, I’m having trouble contextualizing the discussion about norms and values. While fascinating, the discussion strikes me as abstracted almost to the point of meaninglessness. Does Habermas give (or can you think of) any concrete examples that might give some concrete meaning to his use of the terms “norms” and “values”? Or maybe you’ve already done so, and I’m just not literate enough in the relevant philosophy-speak.
Habermas believes his is a postmetaphysical theory of law and democracy. So Rehg gives the example (I don’t know whether Habermas himself does) of Habermas saying: when we assert that the world is round, we don’t do so contextually from within our own lifeworld(s) – we instead assert a universal truth, that no matter for who or when, the planet is round, and those who think otherwise are wrong. So Habermas is “a philosopher who defends a universalist concept of normative validity in the practical domain”, says Rehg.
This is what Habermas says about justice norms: to be valid they “must survive a universalization test that examines what is equally good for all.” Habermas analogizes between truth as the predicate validity criterion for assertoric sentences, and ‘just’ as the predicate validity criterion for universal normative sentences expressing general moral norms. He then tells us why justice is not a value.
“Values always compete with other values.” They can be “temporarily ranked in a transitive order”, given particular lifeworlds, but they’re not universalistic. “[V]alues claim relative validity, whereas justice poses an absolute validity claim: moral precepts claim to be valid for each and every person.”
“Values are to be understood as intersubjectively held preferences.” Their validity is relative, and so I think, Habermas means to say, cognitively meaningless. He juxtaposes against them, “norms of action”, with “their binary validity claim”, and they “are either valid or invalid; we can respond to normative sentences, as we can to assertoric sentences, only by taking a yes or no position or by withholding judgment.”
“Different norms must not contradict one another”, but values must, of necessity.” (perhaps analogous to why capitalistic markets need a certain amount of inequality for things to run smoothly – not to be confused, of course, with today’s economy or the Administration’s plans therefor).
So Habermas gives us four ways in which norms and values clash:
1. obligatory rule-following v. teleological action
2. binary v. graduated coding of validity claims
3. absolute v. relative bindingness
4. systematic coherence v. competition
As for the rest of your comment, I do think we can usefully speak of concepts; we can even put them to work. But the relations of concepts – “grammar” – is already in the world, meaning that reductionism is very hard. To explain what laws and institutions and so forth are, to explain that ’snow is white’ and ‘this is eight inches long’ and so forth can’t rightly be spoken of apart from this lebenswelt (Wittgenstein, who I find myself returning to endlessly in this area of language, talked of how difficult it is to persuade someone she’s measuring wrong, or counting wrong). So that’s part of what I mean by given-ness and thrown-ness and ’stage-setting in language’, there’s a lot of real world metaphysics inhering *in* our language (as opposed to the bad kind that we put in there philosophically).
My feeling is that a great deal of the more important things in law – and in life generally – aren’t norms, they’re values, but Habermas’s theory seems to have little to say about them, precisely because what can rationally be said about them is nothing at all.