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Habermas - A Short Reply PDF
Habermas - A Short Reply PDF
A Short Reply
JÜRGEN HABERMAS
I.
We have heard brilliant expositions of two widely diverging traditions in
moral and legal philosophy, neither of which even touches the Kantian trad-
ition (from which my own position emerges). One tradition reaches back
from Popper to Hume, the other from Thomas to Plato. Such “strong trad-
itions” (in the sense of MacIntyre; cf. MacIntyre 1981) form almost closed
discourses. It is not easy to bridge the wide gaps between them. Therefore, I
cannot really start a discussion but rather mention some of the difficulties I
see inherent in each of those two approaches.
(1) The empiricist tradition, as exemplified by the paper of Professor
Weinberger, leads to a non-cognitivist position in moral and legal theory
which reduces normative sentences to first-person sentences expressing
either emotions, or just preferences and decisions. From this point of view
we have to re-describe, and thereby, I would add, distort the intuitions from
which we in fact act. Non-cognitivist theories do not provide a correct account
of the basic facts of the moral phenomenology of everyday life. We do have
arguments in moral and legal conflicts, and we mutually expect from each
other to be able to provide reasons for or against a controversial course of
action. We also assume that we can learn in the moral domain, depending on
the specific enlargement (cf. Mead 1962) or decentering of social perspectives
(cf. Piaget 1932). This applies to legal reasoning as well. Let me add two
remarks.
Empiricist approaches struggle in the first place with an adequate explan-
ation of what it means to distinguish between the legitimacy or rational
acceptability of legal norms and their enforceability or mere acceptance.
Reasons for recognizing a norm as just or legitimate are different in type
from prudential considerations that motivate actors to avoid the sanctions
they would face in case of violation. Unless we adopt some cognitivist posi-
tion that allows for properly normative reasons, I would furthermore not
know how to defend the superiority of a constitutional state, with democratic
© Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
446 Jürgen Habermas
II.
The discussion between Robert Alexy and me is in a way an attempt to clean
up our own house. I am still not quite clear about the role of what Alexy calls
“general practical discourse.” Here, different types of argument—prudential,
ethical, moral, legal arguments—are supposed to come in one package. I
have the suspicion that this conception is not sufficiently sensitive for the
desired separation of powers. Once the judge is allowed to move in the
unrestrained space of reasons that such a “general practical discourse”
offers, a “red line” that marks the division of powers between courts and
legislation becomes blurred. In view of the application of a particular statute,
the legal discourse of the judge should be confined to the set of reasons that
legislators either in fact put forward or at least could have mobilized for the
parliamentary justification of that norm. The judge, and the judiciary in
general, would otherwise gain or appropriate a problematic independence
from those bodies and procedures that provide the only guarantee for
democratic legitimacy.
As for the problems raised by Massimo La Torre, the problem he is ad-
dressing disappears as soon as one avoids a cognitivist position that implies
moral realism in one or the other version. Rawls’ theory is an example of a
constructivist conception of moral cognitivism. I share the basic idea but
pursue a slightly different strategy. I try to develop the system of rights from
the historical model of constitution-making through an analysis of the con-
stitutive features of such a practice. The performative meaning of the act of
constitution-making is to find a solution for one problem: While sharing the
intention to regulate their common life legitimately with the means of posi-
tive law, which basic subjective rights should the participants in such an
enterprise mutually attribute to each other? The cognitivist assumption is
introduced in terms of the “discourse principle” which is supposed to meet
the condition of legitimacy, while constructivism is introduced with the pro-
cess conception of a common legislative practice that requires a specific legal
code as the medium through which its rational infrastructure must be
implemented.
The only normative idea which is constitutive for this process of construct-
ing a legitimate legal order is an intersubjectivist version of “autonomy” (in
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448 Jürgen Habermas
the sense of Kant and Rousseau). This idea can be traced back to funda-
mental relations of mutual recognition built into any kind of communicative
action and interaction. Everybody acquires his or her basic moral intuition
by growing up in a family regulated by communicative actions (only if the
communication is not systematically distorted). We look at each other in
reciprocal ways, face each other as vulnerable beings, learn how to treat each
other on equal grounds, to acknowledge each other as deserving mutual
respect and being in need of mutual help. This kind of elementary norma-
tivity is rooted in the communicative infrastructure of all forms of socio-
cultural life. I do not mind if you call this a kind of “natural law,” neither am
I nervous about a naturalist fallacy, if we commit the fallacy in the right
way—not as observers, looking outside into the world for states and events,
but as participants in discourse, reflecting on the set of unavoidable pre-
suppositions of our performance. When speakers try to come to an under-
standing with each other about something in the world, pragmatic features
of reciprocity and mutuality can be read off from the performance of speech
acts and their communicative roles or perspectives. But this moral “sub-
stance” is of a formal or procedural nature.
I would like to stress several distinctions: (1) The form of communication
that qualifies rational discourse in general can be analyzed in terms of neces-
sary pragmatic presuppositions (publicity and inclusion, equal communi-
cation rights, truthfulness and absence of compulsory constraints from
within and outside the actual setting). These formal pragmatic features are
constitutive for a practice of argumentation that is designed for the coopera-
tive search for truth. They differ from (2) specific patterns of argumentation
that characterize various types of discourse (pragmatic, ethical, moral, legal
discourse, etc.) as well as from (3) various patterns of institutionalization
that grant certain people at certain times and places the normative expect-
ation that they can take up and pursue certain issues by means of rational
discourse. Forms of institutionalization depend on (4) the type of problems
to be solved or the matter in need of regulation: An academic conference or
a seminar discussion differs from a legal discourse, while legal discourses
assume different forms depending on the context (of a court-procedure,
a talk between lawyer and client, a discussion among legal scholars, etc.).
We may finally (5) distinguish formal from an informal institutionaliza-
tion, depending on whether a discourse is institutionalized through legal
means. Thus modern legal systems contain a special code for the regulation
of court procedures, which reflects both the logic of a discourse of appli-
cation and the distribution of typical roles among participants (judges
and jury, attorneys and defendants, etc.). In institutions other than the
court, e.g., in legislative bodies, there is no distinct place for an impartial
judge. The purpose of legislation requires the predominance of the logic
of a discourse of justification, where we have only participants of equal
standing.
© Blackwell Publishers Ltd 1999.
A Short Reply 449
forceless force of the better argument, to learn from others and to view from
their perspectives. The requirements of mutual perspective-taking are usually
inconspicuous in empirical or theoretical discourse; but in practical discourse,
your own feelings and interests, your existential needs and questions of
identity come in. Kant was still a philosopher of the 18th century. But as soon
as the new historical consciousness made us aware of the world-disclosing
function of different languages and world-views, we realized the painful
task of narrowing distances between different cultures, languages and forms
of life. But again, the practice of argumentation puts all the burdens of open-
mindedness upon the shoulders of the participants: Wherever they fail to
meet the demanding conditions of rational discourse, we don’t have any
rational discourse.
III.
Let me now respond to Danilo Zolo’s paper, to this postmodern version of a
Carl-Schmittian type of neo-realism, in three steps. I will first refer to the
change in international relations since World War I and raise some objections
to the neo-realist picture. I will secondly propose a three-layered scenario for
a future “Weltinnenpolitik” or global domestic politics. I will finish with a
remark on the intercultural discourse on human rights.
ad 1): Neo-realism. Classical international law or Völkerrecht is designed
for a system of independent nation states that enjoy the right to go to war
(ius ad bellum). They are at the same time supposed to act according to their
raison d’état, that is: to follow more or less rationally the brute imperatives of
sheer collective self-maintenance. As a consequence of the growing inter-
dependence of global society and transnational economy, this Westphalian
system has in fact changed and still keeps rapidly changing. There is an
obvious cumulation of those problems, that even powerful states can no
longer cope with in a single-handed manner (international security and
peace-keeping, large scale ecological threats, wide-ranging technological
risks, proliferation of war technology, organized crime such as transnational
trade with weapons, drugs, etc.). Besides the UN, sometimes under its
umbrella, there has emerged a dense and fast-growing network of inter-
national organizations, conferences and arrangements. We face in the mean-
time supranational entities of a new type, global regimes and procedures,
even non-governmental organisations operating across national borders.
The traditional line between foreign and domestic economic policies, in
particular, has been blurred, while both the autonomy and sovereignty of
formerly independent nation states have become increasingly undermined.
Not that the neo-realist doctrine would totally ignore this obvious shift in
the pattern of international relations. But it does not describe it as a shift in
paradigm. By virtue of a rather pessimistic image of man and a surprisingly
opaque notion of politics, the proponents of this approach underestimate the
© Blackwell Publishers Ltd 1999.
A Short Reply 451
degree and relevance of the change. They misinterpret the transition from an
international to the postnational constellation as a move towards a dubious
kind of universalism. “Abstract” regulations seem to be imposed on the vital
interests of nation-states, thus distorting the “natural” mechanism of their
particularist competition. In fact, however, it is the other way round.
Humanitarian and military interventions by the UN or by regional regimes
respond to a decay in the authority of conflict-ridden nation states that are
close to falling apart and therefore compensate their weakness by repression,
identity politics and expansionist adventures.
The trend towards a substitution of the law of the peoples by a new cos-
mopolitan law mirrors a significant moral lesson from the crimes against
peace and humanity that overshadow the twentieth century. With the atrocities
of total warfare, ethnic cleansing and genocide, with the unforeseen event of
the Holocaust, the nation state has definitively lost the “innocence” that the
architects of international law and non-intervention had attributed to its
“subjects,” the sovereign powers.
ad 2): A scenario for global domestic politics. In these circumstances it is
much more realistic to strengthen the weak institutions of the world com-
munity and to pursue human rights policies, pushing for a further and more
effective institutionalization of a cosmopolitan law that allows for inter-
ventions in the “inner affairs” of the nation state, protects nationals against
human rights violations by their own government and persecutes function-
aries who commit crimes in the service of their office or in the course of their
business. The institutionalization of cosmopolitan law does not require the
establishment of a world government based on a monopoly of the means of
legitimate violence held by a global state.
On a global scale I would instead envisage a multi-level political system
with a thoroughly reformed world organization at the top level, domesti-
cated nation states on the bottom level and a horizontal network of trans-
national regimes in between. The legal competences and political powers of
the United Nations should be extended and become more effective, but only
within strictly limited function—namely, in the fields of peace-keeping,
human rights politics and protection against global ecological, technological
and criminal risks. More important for a future politics of “global internal
affairs,” pertaining to economic and social policies as well, is the middle
level of new institutional arrangements for the world-wide coordination of
national policies. Agreements must be reached between, and implemented
by, transnational regimes (of “global player” of the format and weight of,
e.g., the European Union). This kind of global arrangements depends on
bargaining processes in the looser framework of transnational regimes, of
standing conferences, settled procedures, regular summits, etc. But the
institutionalization of this most important part of world politics can only
work if governments on the national level are perceived, from within their
national arenas, as cooperative members of a world community rather than
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452 Jürgen Habermas
References
Brandom, R. 1994. Making It Explicit: Reasoning, Representing, and Discursive
Commitment. Cambridge, MA: Harvard University Press.
MacIntyre, A. C. 1981. After Virtue: A Study in Moral Theory. Notre Dame, IN:
University of Notre Dame Press.
Mead, G. H. 1962. Mind, Self, and Society: From the Standpoint of a Social Behaviorist.
Ed. Ch. W. Morris. Chicago, IL: University of Chicago Press.
Piaget, J. 1932. The Moral Judgment of the Child. Trans. M. Gabain. Glencoe, IL: Free
Press.
© Blackwell Publishers Ltd 1999.
A Short Reply 453