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GUY HAARSCHER

PERELMAN AND HABERMAS


The pr obl em of argument at i on is central in Perelman' s thought. In
1976,1 he applied his " Ne w Rhet or i c ''2 to the field of law. Ji~rgen
Habermas has been interested in the last t en years in elaborating a
"Theor y of communi cat i ve action". 3 His t heory is, al t hough in a
peculiar manner - Habermas is not a "legal philosopher" - also related
to jurisprudence. The aim of this paper is to ask whet her or not such a
similarity bet ween the general conceptions reveals an inner connec-
tion.
I. J USTI CE AND REASON I N PERELMAN
In his first book, Perel man tried to present a "systematic study of con-
fused notions", 4 and especially of justice. He distinguished bet ween
"formal justice" and "concrete justice". 5 The first one is defined in the
fol l owi ng way: similar situations must be treated in similar ways. 6 Of
course, this does not define the content of justice. The definition onl y
1 See Ch. Perelman, Logiquejuridique, Paris, Dalloz, 2d ed., 1979.
2 See Ch. Perelman, Trait~ de l'argumentation, Bruxelles, Editions de I'U.LB.,
4th ed., 1983.
3 See J. Habermas, Theorie des kommunikativen Handelns, Frankfurt, Suhrkamp,
1981, 2 vol.; by the same author: Vorstudien und Ergi~nzungen zur Theorie des
kommunikativen Handelns, Frankfurt, Suhrkamp, 1984. C also: T. McCarthy,
The critical theory ofJOrgen Habermas, Cambridge, Mass., The NLI.T. Press, 2d
printing, 1982, pp. 272-357.
4 Cf. Ch. Perelman, 'De la justice' (1945), in:Justice et Raison, Bruxelles, Edi-
tions de I'U.LB., 2d ed., 1972, p. 12 ("...l'objet propre de la philosophie est l'dtude
syst~matique des notions confuses.").
5 Ibid., pp. 21sq.
6 Ibid., p. 26 ("...les ~tres d'une m~me cat~gorie essentielle doivent ~tre trait~s de la
m~me fafon.").
Law and Philosophy 5 (1986) 331-342.
1986 D. Reidel Publishing Company.
332 Guy Haarscher
states that if you adopt a rule of substantial (concrete)justice, you must
then apply it equally to all similar circumstances. For instance, f al l the
citizens older than 18 years of age have a right to vote, then you can-
not exclude an individual who is in the mentioned condition: this
woul d amount to an arbitrary discrimination. But of course, such an
obligation depends on the "hypothesis" (the "if"), that is to say, the
substantial philosophy of justice (here: political rights) you adopted in
the beginning. Formal justice presupposes a notion of substantial jus-
tice which comes from the "outside". Now the probl em is: how are
we to justify this notion.~
In 1945, Perelman is still a neo-positivist: he thinks that, in the
realm of values, you cannot ultimately use reason to justify the fact
that you prefer a given norm to another one; there is an irreducible
element of decisionism. But this solution is not satisfying, and during
the following years, Perelman tried to go beyond such a kind of
positivist relativism or skepticism. The New Rhetoric tried to find a
tertium datur bet ween the old rationalism, which Perelman never
accepted, and neo-positivism, which he did not accept any longer.
This middle-of-the-road position was symbolized by the notion of
"reasonableness": i f you have to choose in practical matters, you can
use a certain kind of reasoning. However, this is not deductive in the
rationalistic sense of the wor d since you are unable to give demon-
strations or universally valid proofs for your position. On the other
hand, i f you have to abandon a t oo ambitious conception of practical
reason - Cartesian reason, 7 Perelman says - you are not compelled to
follow a positivist and relativist line of thought. There is a third
possibility, consisting of using the nonformal ways of arguing Perel-
man put forward in the Treatise: you can give "good reasons" to adopt
a position, but these will never be as universal and objective as they
are in mathematical sciences; you have to argue before a particular
audience, you must find a reasonable, that is, acceptable solution. This
means that tolerance is at the very heart of Perelman' s thought: i f you
7 Cf. Traitd de l'argumentation, op. cit., p. 1 ("...une rupture avec une conception
de la raison et du raisonnement, issue de Descartes, qui a marqu~ de son
sceau la philosophie occidentale des trois derniers si~cles ...").
Pe r e l ma n a n d Ha b e r ma s 333
d o n ' t possess t he t r ut h, t he pos i t i on o f y o u r adversary ma y onl y be
less accept abl e i n t he pr e s e nt context; y o u have t o r espect h i m e v e n i f
y o u di sagree wi t h hi m, wh i c h wo u l d n o t be t he case i f y o u coul d say
t hat he is s i mpl y wr ong.
Pe r e l ma n cons i der ed t hat his n e w r het or i c was at t he v e r y basis o f
de moc r a t i c societies and t he r ul e o f law. He t r i ed t o p r o v e i t i n his
Logi que j ur i di que . I n this b o o k he s t r uggl ed against t he c onc e pt i on o f
t he '~judiciary syl l ogi sm" ( Bent ham, f or instance): 8 this n o r m o f
r eas oni ng ensur es t he appl i cat i on o f f or ma l j ust i ce, b u t it i mpl i es t hat
t he j u d g e has n o t h i n g t o do wi t h t he p r o b l e ms o f substantial justice;
t hese have t o be s ol ved by t he "sover ei gn", t hat is, t he legislator. O f
cour se t her e is, at least o n t he Cont i ne nt , a s t r ong j ust i f i cat i on f or such
an at t i t ude - t he r e qui r e me nt s o f t he t h e o r y o f t he separat i on o f
power s . Th e j u d g e mu s t have eyes onl y t o l o o k at t he t e xt o f t he
law, 9 he has n o t t o i nt e r pr e t it. Thi s c onc e pt i on was r el at ed t o t he
arbi t rary charact er o f j ust i ce dur i ng t he pe r i od o f t he " A n c i e n R d g i me "
( conf us i on o f power s , d e p e n d e n c e o f t he j u d g e o n t he e xe c ut i ve - t he
ki ng - "lettres de cachet", "bon pl ai si r du Pri nce", etc.). Th e ideal syst em
o f l aw wo u l d be c o mp o s e d o f uni vocal , n o n - a mb i g u o u s , wor ds. It
wo u l d be c o mp l e t e ( no lacunae) and consi st ent ( no cont r adi ct i ons ) )
So t he l i bert i es o f t he ci t i zen wo u l d be pr ot ect ed: he wo u l d k n o w t he
l aw be f or e act i ng ( nul l a poena, n u l l u m crimen s i ne l ege, publ i ci t y o f t he
statutes); t he j u d g e wo u l d have t o appl y t he rul e, and n o t h i n g else.
Th e j udi ci ar y syl l ogi sm wo u l d have t he f ol l owi ng f or m: first t he r ul e
( maj or pr emi se) , t h e n t he case ( mi nor premi se), t hen, mechani cal l y,
t he deci si on (conclusion).
Pe r e l ma n s h o we d t hat this was an unat t ai nabl e goal as t her e are
always ambi gui t i es, i nconsi st enci es and lacunae, t he f ut ur e is u n -
pr edi ct abl e, and t he j udge s have t o i nt e r pr e t t he law; i n s ome ci r-
s Cf. Logiquejuridique, op. cit., pp. 2 sq. et 176 sq.
9 C Montesquieu, Espri t des Loi s , in Oeuvres Compl~tes, Paris, Gallimard,
Biblioth~que de la Pl~iade, t.II, 1958, p. 311 (Livre VI, chap. 3).
10 Cf.. Ch. Perelman (ed.), Les antinomies en droit and Le probl~me des lacunes en
droit, Bruxelles, Publications du Centre national de R.echerches de Logique,
1965 and 1968.
334 G u y Haarscher
cumst ances, t h e y mu s t r ef er t hei r deci si ons t o e qui t y or nat ur al law.
Bu t o f cour se this can l ead t o arbitrariness, t o j udi ci ar y
"exi st ent i al i sm". l~ Ev e r y o n e sees t hat we have he r e t he exact replica
o f t he gener al p r o b l e m we spoke o f i n t he b e g i n n i n g o f t he article -
i f t he j u d g e has a wi d e p o we r o f i nt er pr et at i on, he can use his o wn
c o n c e p t i o n o f subst ant i al j ust i ce t o deci de; b u t f or ma l j ust i ce is onl y
ensur ed, as far as Cont i ne nt a l j ur i s pr ude nc e is c onc e r ne d, wh e n t he
l egi sl at or is t he sole r epr es ent at i ve o f concr et e j ust i ce. Wh a t wi l l
ha ppe n i f t he j u d g e fills t he gaps, solves t he cont r adi ct i ons, el i mi nat es
t he ambi gui t i es, creates t he l aw i n unpr e di c t e d ci rcumst ances, d o i n g
all this i n a personal , subj ect i ve way? He will, o f course, e nda nge r t he
f or ma l j ust i ce ( t he j ur i di cal cert ai nt y). So b o t h posi t i ons are unaccept -
able, ei t her t he rationalistic pos i t i on o f t he c o mp l e t e s ove r e i gnt y o f
t he "gener al wi l l " e mb o d i e d i n t he legislator, or t he relativistic posi -
t i on o f t he j u d g e de c i di ng f r eel y i n t he c onc r e t e case (deci si oni sm,
Freirecht). Th e t h e o r y o f a r g u me n t a t i o n al l ows Pe r e l ma n t o f i nd t he
tertium datur: t he j u d g e mu s t al ways gi ve g o o d reasons f or his deci si on,
par t i cul ar l y wh e n he chooses n o t t o f o l l o w t he strict f or ma l wa y o f
t he j udi ci ar y syl l ogi sm; and he mu s t ke e p t he bal ance b e t we e n separa-
t i on o f p o we r s and t he realities o f l aw (i mpossi bi l i t y o f a f or ma l sys-
t e m o f law). He r e also, t he r e is an a t t e mp t t o a dopt a "weaker "
rat i onal i t y, t hat is, t o save r at i onal i t y e n d a n g e r e d by t he deci si oni st
attacks.
Kant had al r eady seen t hat d o g ma t i s m and skept i ci sm sustain each
ot her . I f y o u t r y t o appl y t he cartesian n o t i o n o f r eason ("iddes claires
et distinctes") t o pract i cal realities, t o act i on, t h e n y o u r fai l ure wi l l
gi ve rise t o skept i ci sm. Re a s on mu s t be adapt ed t o its s pher e o f act i vi -
ty. Reasonabl eness is n o t de mons t r a t i ve rat i onal i t y, a r g u me n t a t i o n is
n o t i nf er ence, n e w r he t or i c is ne i t he r "esprit de systeme", n o r pur e deci -
si oni sm.
11 C the Freirechtsbewegung (O. Btilow, E. Ehrlich, H. Kantorowicz).
Perel man and Habermas 335
II. HABERMAS' S CONCE P T I ON OF
" COMMUNI CATI VE ACTI ON"
In t he fol l owi ng I shall t ry to show how t he pr obl em of argument a-
tion is related t o t he opposition o f positivism and rationalism in
Habermas' s work, and how this has some ver y i mport ant consequen-
ces for the philosophy of law (what could be called t he "crisis of
juridical legitimation"). Then, I shall relate Perelman' s and Habermas' s
theories, and t ry to get to some philosophical conclusions.
Habermas' s poi nt of departure seems to be ver y far away f r om
Perelman' s. Habermas is a me mbe r o f the second generation o f t he
Frankfurt School; actually he is the most pr omi nent one. His basic
pr obl em is to t ry to go beyond the kind of radical pessimism whi ch
was characteristic of Ador no and Horkhei mer' s t hought , for instance
in the Di a l e k t i k der Au.jCkldrung. 12 Generally speaking, this pessimism
was related to t he pr obl em o f rationality. Rationality was supposed to
have had t wo major traits duri ng t he period o f Enlightenment. First,
it was identified wi t h science and knowl edge, wi t h f r eedom f r om
dogmatism and superstition. Second, it was related to the emancipation
o f t he human species. To put things differently, rationality concerned
bot h means and ends. Actually this was a classical concept of reason. In
Gr eek philosophy, logos meant a kind o f i nner transformation, that is,
a ver y modification of t he individual's ends. The individual was sup-
posed to be able to get to the cont empl at i on of the "Good" (Plato), or
to acquire t he practical virtue o f phronesis (Aristotle), or to live
according to the cosmos (Stoa), etc. In ot her terms, reason unvei l ed for
t he individual new, "true" ends; after having philosophized, he was no
l onger t he same. Ther e was a philosophical life, a "good life", a kind
of happiness related to logos.
Take for instance, on t he opposite side - as Leo Strauss brilliantly
showed 13 - t he way Thomas Hobbes argues TMwhen he tries to give a
12 Cf., on this point, P. Connerton, The Tragedy o f Enlightenment, Cambridge
University Press, 1980, pp. 60-79.
13 Cf. Leo Strauss, Natural Right and History, Chicago, The University of
Chicago Press, 1953.
14 Ibid., chap. V, first part ("Hobbes").
336 Guy Haarscher
justification o f political authority. In the state o f nature, individuals are
mot i vat ed by a basic trend: self-conservation. For that purpose, t hey
t ry t o secure the maxi mum o f advantages for themselves as anything
mi ght happen whi ch woul d endanger their life, their "security". So
the state o f nature is identified by Hobbes wi t h the realm o f homo
homini lupus. But, Hobbes goes on, peopl e have at their disposal a kind
o f reason (we shall see that it is quite di fferent f r om the classical defi-
nition o f Iogos); t hey are able to foresee the future, that is, to see in
their imagination what will event ual l y happen i f t hey f ol l ow a line o f
action. They can understand that the state o f war o f all against all
necessarily leads t o terrible consequences, t o their eventual destruction
(someone will come who has mor e power ; he will be limited by
not hi ng and will crush us). Ther ef or e t hey accept to ent er into a
social contract. Ever yone alienates a part o f his power , o f his l i bert y
(right to be his own judge), i f and only ~al l ot her peopl e do the same.
So the artificial body o f the Leviathan is created, and we know that his
powe r is absolute, at least as l ong as he protects the subjects' lives.
No w the pr obl em is, as we can easily see f r om what has been said,
that reason is, in the Hobbesi an sense, onl y "instrumental" (reason o f
the means, not o f the ends). The individual's ends are not t ransformed
by the use o f reason; reason onl y helps peopl e to get mor e securely,
mor e consistently, t o the same end. The State is the best means o f
self-preservation. In ot her terms, here reason is a calculating reason;
t here is a permanence o f ends bef or e and after the contract, so we can
say the Leviathan is j ust the best means o f self-preservation, and you
can see that you lose less in terms o f natural liberty than you wi n in
terms o f a guaranteed preservation o f your personal safety. Now, as
far as classical reason is concerned, the situation is totally inverted.
Classical reason i nt roduced qualitatively new ends; it was impossible
t o "calculate"; t here was a het er ogenei t y bet ween the pre-phi l osophi -
cal state and the philosophical state; reason was reason o f the ends, not
onl y o f the means.
I think that Hobbes sees ver y clearly what ot her thinkers do not
realize: t here is an opposition - and a ver y strong, a decisive one -
bet ween ancient and moder n (instrumental, "technical", scientific)
rationality. Classical rationality leads t o the "sovereign good". It is at
Perelman and Habermas 337
t he same t i me knowl edge and emancipation (discovery o f new and
liberating ends). Hobbesian (technical) rationality is just knowl edge;
ends must come f r om t he outside, so reason can serve t hem, what ever
t hey are. No w Habermas is right when he tries to show that t he
philosophy o f t he Enl i ght enment was, as it were, prisoner o f a ver y
deep contradiction. It want ed to use reason to get to t he classical aim
(emancipation o f man, what ever t he differences bet ween classical and
moder n ideals of "good life"), but it had "dropped" the classical Iogos.
Ther e was a rising domi nat i on o f a kind o f rationality whi ch was not
able to give criteria about ends. Enl i ght enment was supposed to be
bot h knowl edge and emancipation, but it seemed that t he second
t er m was onl y imaginary.
Ador no and Hor khei mer had gone to t he ultimate consequences o f
such a situation. Following Max Weber' s concept o f t he "disenchant-
ment o f t he world", is t hey had shown that moder n instrumental
reason, being the servant of any end, leads to cynicism. They t hought
that t here was ultimately a relationship bet ween technical rationality
and t he ext ermi nat i on camps. So t he question was: how can we still
philosophize after Auschwitz. ~16 The "dialectics" o f Enl i ght enment
must be underst ood in the Hegelian sense: a transformation of reason
into its contrary. Reason is supposed to be an i nst rument o f emanci -
pation. However , it has become a means o f domination. Moder n
rationality destroys the old ends, it criticizes t hem because t hey are
"mythological". But it does not replace them. Instrumental rationality
destroys t he old universal ends o f t he good life, onl y self-interest
remains, and moder n reason helps it to become dominant. Machiavelli
had already said 17 that moder n political t heor y has to take people as
t hey are and not as t hey ought to be. What he had taken as an aim
was, i f we fol l ow Ador no and Horkhei mer, realized in the t went i et h
century.
No w Habermas is conscious o f the fact that technical rationality
may be dangerous, and that the t rend criticized by t he Dialektik der
15 F o r t hi s i n f l u e n c e , cf. E C o n n e r t o n , o p . c i r . , p a s s i m .
16 CF. i bi d. , p_p. 6 0 - 7 9 .
17 Se e St r aus s ' s anal ys es i n t h e s a me c ha pt e r .
338 Guy Haarscher
AuJkldrung is a real t r end, an actual t hreat . But , i n oppos i t i on t o his
predecessors, he tries t o s h o w t hat mo d e r n r at i onal i t y has also an
" e ma nc i pa t or y" side. Th e r e f o r e he want s t o "save" mo d e r n i t y .
Mo d e r n r at i onal i t y is n o t j us t i ns t r ume nt a l rat i onal i t y. Mo d e r n i t y also
has est abl i shed a n e w e l e me nt , wh i c h is essentially r el at ed t o e ma nc i -
pat i on. Thi s e l e me n t is t he n o t i o n o f public space. Si nce t he
Renai ssance, mo d e r n r at i onal i t y has d e v e l o p e d t he f o l l o wi n g idea:
e v e r y s t at ement , what ever , it is, mu s t be ar gued, j ust i fi ed, be f or e an
audi ence. Or course, this has n o t be e n acqui r ed i mmedi at el y. Eve r y-
one r e me mb e r s Galileo' s trial, t he v e r y c ompl i c a t e d e v o l u t i o n o f
Pr ot es t ant i s m and secularization, t he ambi gui t i es o f t he Phi l osopher s,
d u r i n g t he En l i g h t e n me n t per i od, c o n c e r n i n g social p r o b l e ms and
t r adi t i onal a ut hor i t y (this is qui t e clear i n t he School o f Na t ur a l Law:
b o t h Gr ot i us and P u f e n d o r f j u s t i f i e d absolutism). On t he ot he r hand,
t he ways o f j ust i f i cat i on are di f f e r e nt f r o m one fi el d t o t he ot her ,
f r o m o n e audi ence t o t he ot her . Bu t one ai m is pr es uppos ed: a c o m-
mu n i c a t i o n f r ee f r o m d o mi n a t i o n ("ideal speech si t uat i on"), wh i c h has
a ki nd o f r e v o l u t i o n a r y i mpact . "Publ i c space" means t hat st at ement s,
values, choi ces have t o be p u t f o r wa r d i n t he discussion. Mo d e r n i t y
does n o t onl y me a n t he vi c t or y o f i ns t r ume nt a l act i on, it also signifies
t he v e r y possi bi l i t y o f c o mmu n i c a t i v e action.
So Ha be r ma s tries t o f i nd a ki nd o f synt hesi s b e t we e n t he
rationalistic o p t i mi s m o f t he s e v e n t e e n t h and e i g h t e e n t h cent ur i es (t he
i l l usi on o f be i ng able t o at t ai n t he classical ideal wi t h mo d e r n ,
i ns t r ume nt a l reason) and t he posi t i vi st "pessi mi sm" o f deci si oni sm (t he
accept ance o f t he i mp o t e n c e o f r eason r e ga r di ng ai ms and val ues - i n
o t h e r t er ms, t he a b a n d o n me n t o f pract i cal rationality). Th e t h e o r y o f
c o mmu n i c a t i v e act i on emphasi zes t he pr ogr ess wh i c h has onl y t aken
pl ace wi t h mo d e r n i t y - a pot ent i al l y uni ver sal publ i c space, a r e c ogni -
t i on o f each i ndi vi dual as a pot ent i al "sour ce" o f ar gument s , t he neces-
sity o f j us t i f yi ng mor al - pol i t i cal st at ement s, t he p r e s u mp t i o n o f
i nnocence, etc. Bu t Ha be r ma s agrees wi t h Ad o r n o and Ho r k h e i me r
o n t he danger s o f a d o mi n a t i o n o f an i ns t r ume nt a l r at i onal i t y wh i c h
wo u l d go b e y o n d t he l i mi t s o f its l egi t i mat e d o ma i n and t hr e a t e n
c o mmu n i c a t i v e rat i onal i t y. Th e r e f o r e his appr oach is Kant i an i n a
doubl e sense.
Perelman and Habermas 339
First the theory of communicative action presupposes, in every
speech act, the ideal of a communication free from domination. So
Habermas tries to avoid the accusation of ethnocentrism coming from
disciples of Wittgenstein, such as Winch. 18 Of course, communicative
action is only developed and actualized in modern industrialized
western societies. Nevertheless it is not, in Habermas' s opinion, the
product of a particular, western, individualistic, culture. On the con-
trary, some particular conditions which have taken place in the history
of modern Europe (development of modern scientific spirit, Protes-
tantism, capitalism, etc.) have made a realization of this ideal possible.
However, we must insist on this, it is embodied in every act of com-
munication as a presupposition, as an "a priori". This "transcendental"
element relates Habermas' s problematic to Kantian criticism.
There is a second major Kantian element. In Knowledge and
Interest, 19 Habermas tries to distinguish bet ween various "interests of
knowledge": the "technical" one, the "practical" one and the "eman-
cipatory" one. Similarly to Kant, Habermas tries to define the legiti-
mate realms of various kinds of rationality. Technical rationality is, as
we have seen before, purely instrumental. It has to be limited to the
necessary mastery of nature (in Marxian terms: to the development of
productive forces, which is the very basis of the materialist concep-
tion of history Habermas will try to "reconstruct"). Thus, the aberra-
tions which the authors of the Dialektik der Aufleli~rung had analyzed
and deeply criticized woul d be avoided, instrumental rationality
woul d be given a legitimate us e and also a "transcendent ''2 one
(illegitimate, going beyond the limits established by Habermas). But
instrumental rationality woul d not be completely denied, as it is in
various fashions by Leo Strauss, Heidegger, Alfred Verdross, Michel
Villey, or even Hannah Arendt, all of them seeking a solution in a
kind of "revival" of traditional reason, be it Greek or medieval. The
necessity of mastering nature woul d be preserved, as it is in Marx's
work.
18 C, on this point, T. McCarthy, 0p. cir., pp. 317-318.
19 Ibid., pp. 53-125.
2o In the sense given to the term by Kant in the Critique of pure reason.
340 Gu y Haarscher
On the ot her hand, practical rationality - anot her r equi r ement o f
ever y society is that people must understand each other, that is, t hey
must speak the same language and share a c ommon core o f values -
woul d be secured by laying emphasis on her meneut i c procedures. As
we know, however , Habermas does not accept Gadamer' s
conclusions. 21 Hermeneut i cs could lead, just as technical rationality
did, to a kind o f cultural relativism, and Habermas wants to preserve
practical rationality, that is, a certain kind o f universality and objectivi-
ty. This is t he reason he puts f or war d t he not i on of "critical sciences"
in Knowledge and Interest (Marxism, psychoanalysis), 22 and later o f
"reconstructive sciences". 23 His aim has always been to preserve a kind
o f universality by showi ng that communi cat i ve action and the
requi rement s o f pr oof and argument at i on are endangered bot h by
instrumental rationality (which is universal, but limited to technical
means) and by her meneut i c procedures (whi ch are particular, that is,
root ed in a specific cultural context). In a sense, Habermas follows
Hegel, who struggled against abstract understanding ("reification" o f
instrumental rationality) and romanticism (negation of reason for the
sake o f the "particular"). His "emanci pat ory interest" is really at the
heart o f t he at t empt of saving practical reason.
No w t he juridical aspect o f t he probl em. Moder n theories o f
natural rights, whi ch influenced American and French revolutions, wer e
oft en rationalistic. These rights wer e supposed to be discovered by
reason as evi dent truths, so reason could give the standard for t he
critique of aut hori t y (positive law, illegitimate powers, tyranny, etc.)
Bot h Perel man and Habermas t hi nk that this ideal - universal human
rights, free discussion of moral and political choices by aut onomous
individuals - has to be preserved. Bot h o f t hem agree on a kind of
juridical legitimation of power. But again, bot h o f t hem reject t he
rationalistic vi ew o f natural rights. Perel man follows Hume and neo-
positivism, at least in the begi nni ng of his wor k and as far as the
i mpot ence o f classical rationalism is concerned (see t he above-
21 C McCarthy, op. cir., pp. 187-193.
22 Ibid., pp. 75-90.
23 Ibid., pp. 276-279 and 355-356.
Perelman and Habermas 341
mentioned debate on justice in "De lajustice"); Habermas criticizes the
illusion of a conception which tries to attain classical ends by
resorting to "modern" reason. Both authors are on the same level of
thinking when they struggle against the relativist consequences of this
rejection of strict, "strong" rationalism. Of course, their philosophical
background, and therefore their way of arguing, differs. Perelman
finds in a renaissance of Aristotelian rhetorics a new concept of
"reasonableness", which allows him to plead for a more "flexible"
rationality (a rationality of good reasons, less stringent than demon-
stration, but not leading to subjectivism and arbitrariness); Habermas
finds in the development of a "public space" the very basis of eman-
cipatory, that is, communicative, action: positions have to be defended,
argued, justified, which allows people to control, criticize authority to
"publicize" it. But Habermas, like Perelman, does not think that this
rationality is a technical-demonstrative rationality, rather it is a sui
generis rationality, and (as in New Rhetoric) a tertium datur between
rationalism and relativism, reason and will.
III. PERELMAN AND HABERMAS
Habermas often insists that it is completely impossible to go back to
classical philosophy, to metaphysics, substantive rationality. As Perel-
man, he thinks that modern public space is based on some formal
constraints, but that this does not presuppose a substantial metaphysics
which would be the necessary foundation for ethics and law (for
normativity). New rhetoric and communicative action are both
related to a "new" rationality and both emphasize argumentation as
the central procedural element of normative statements in a "dis-
enchanted" world. But what are these constraints.~ If normative state-
ments have to be proved (or, in the Popperian sense of the term,
"falsified"), presumption of innocence is a major, basic value. If every-
one entering the public space is potentially an alter ego in the process
of communicative action, then the essential dignity of the person
must be secured; freedom of thought and speech must be guaranteed;
arbitrary power (non publicly justified statements) must be excluded.
In other words, there are some "transcendental" presuppositions of
342 Guy Haarscher
n e w r het or i c and communi cat i ve action. Hu ma n rights are t he ver y
basis o f t he ideal speech situation. Language and communi cat i on are
t he t rue f oundat i on f or a mi ni mal cont ent o f moral i t y.
Of course, I do not want t o i dent i f y Perel man' s and Habermas' s
general cont ext s o f t hi nki ng. Even i f t he ai m seems similar, even i f
t he c o mmo n e n e my is positivism, Haber mas want s t o do a l ot o f
t hi ngs Per el man is not i nt erest ed in. For instance he tries t o "r econ-
st ruct " historical materialism, t o discuss funct i onal i sm and Luhmann' s
theories, t o use psychoanalysis as a model o f emanci pat or y knowl edge,
etc. 24 But nevertheless, bot h aut hors open t he same door: t hey want
t o abandon met aphysi cs and substantive rat i onal i t y and t o gi ve ar gu-
ment at i on t he status o f a n e w f oundat i on f or norms. The difficulties
and limits o f t hei r respective positions wi l l have t o be assessed else-
wher e.
Centre de Philosophie du Droit,
Universitd Libre de Bruxelles,
Bruxelles, Belgium.
24 Ibid., pp. 232-71, 213-32 and 193-213.