Between Facts and Norms

"Between Facts and Norms" is a book on deliberative politics that was published by the German political philosopher, Jürgen Habermas, in 1996. Originally published in 1992 as "Faktizität und Geltung", the book is the culmination of Habermas's project that began with "The Structural Transformation of the Public Sphere" in 1962, and represents a lifetime of political thought on the nature of democracy and law.

"Between Facts and Norms" offers an original reconstruction of the philosophy of language (drawing on the author’s "Theory of Communicative Action", first published in 1981), a theory of jurisprudence, an understanding of constitutional theory, reflections on civil society and democracy, and an attempt to construct a new paradigm of politics that goes beyond, but without discarding, the liberal tradition. At the heart of the book is a reconsideration of the relation between the philosophy of law and political theory. [http://www.firstthings.com/ftissues/ft9804/reviews/rasmussen.html]

Criticized for his "discourse ethics" first propounded in 1990, Habermas, in this book, attempts to draw out the political, legal, and institutional implications of his theory, asserting that discourse ethics ought to be complemented by a theory of socialization that accounts for its institutionalization. ("Discourse ethics" is Harbemas's attempt to explain the universal and obligatory nature of morality by evoking the universal obligations of communicative rationality.)

Habermas contends that law is the primary medium of social integration in modern society, and is power that extracts obedience from its subjects. As power alone cannot grant it its legitimacy in modern society, law derives its validity from the consent of the governed. Arguing that law is characterized by an internal tension between facts and norms that develops from the modern process of secularization, Habermas introduces a new term, "communicative power", in this book. Pointing out that legitimate law-making is itself generated through a procedure of public opinion and will-formation that produces communicative power, he asserts that this communicative power, in its turn, influences the process of social institutionalization. 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. This influence, carried forward by communicative power, gives law its legitimacy, and thereby provides the political power of the state its binding force."

There is, hence, a circular and reciprocal relation among communicatively-generated power, legitimate law, and state power that, Habermas believes, are co-originally juxtaposed. The co-originality of legitimate law and political power suggests a functional connection between them — "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 "law requires a normative perspective, and power, an instrumental one". This difference leads Habermas to distinguish between "communicative power" and "administrative power".

The introduction of this distinction indicates a redrawing of the boundary between the life-world and system in favour of the latter, and consequently indicates a shift to the right in Habermas's latest work. What was previously known as a "discursive situation", freed from external constraints that amounted to inter-subjective agreement, now referred to as "communicative power", 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, and the latter, arising from renunciation of natural violence, serves to channel a legitimate force identified with power. [http://www.bu.edu/wcp/Papers/Poli/PoliShab.htm]

Habermas's treatment of the role and meaning of the concept of "power", as it was elaborated in his two previous volumes, "The Theory of Communicative Action" and "Moral Consciousness and Communicative Action", has therefore undergone some significant changes in this book. The revised notion of "power" as a positive influence that is produced in communicative space, runs contrary to Habermas's original concept of "power" in his "Theory of Communicative Action" where power was understood as a coercive force that had to be avoided in order for the discursive situation to prevail.

Habermas further accommodates his critics on the role of law by making a distinction between ethics and morality. In a modern pluralist culture, he argues, normative issues should be separated from issues of the good life. Only when various ethical traditions come into conflict with one another, as they inevitably do in a modern pluralist culture, do normative issues arise that have implications for everybody. In Habermas’ deliberative paradigm, law stabilizes society, but only through the universal voice of democracy. [http://www.firstthings.com/ftissues/ft9804/reviews/rasmussen.html]

"Between Facts and Norms" concludes with a proposal for a new paradigm of law that goes beyond the dichotomies that have afflicted modern political theory from its inception, and that still underlie current controversies between so-called liberals and republicans.

Table of contents

# Law as a Category of Social Mediation between Facts and Norms
# The Sociology of Law versus the Philosophy of Justice
# A Reconstructive Approach to Law I: The System of Rights
# A Reconstructive Approach to Law II: The System of Rights
# The Indeterminacy of Law and the Rationality of Adjudication
# Judiciary and Legislature: On the Role and Legitimacy of Constitutional Adjudication
# Deliberative Politics: A Procedural Concept of Democracy
# Civil Society and the Political Public Sphere
# Paradigms of Law

External links

* [http://www.firstthings.com/ftissues/ft9804/reviews/rasmussen.html Books in Review: Between Facts and Norms by Prof. David M. Rasmussen of Boston College]
* [http://www.bu.edu/wcp/Papers/Poli/PoliShab.htm Habermas's Between Facts and Norms: Legitimizing Power? by Abdollah Payrow Shabani, University of Ottawa]