Between Facts and Norms

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Between Facts and Norms is a book on deliberative politics that was published by
the German political philosopher, Jrgen Habermas, in 1996. Originally published in
1992 as Faktizitat 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 authors "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. [1]
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. [2]
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. [3]
"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.

[edit] Table of contents

1.
2.
3.
4.
5.
6.
7.
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9.

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

[edit] External links

Books in Review: Between Facts and Norms by Prof. David M. Rasmussen of Boston College
Habermas's Between Facts and Norms: Legitimizing Power? by Abdollah Payrow Shabani,
University of Ottawa

Retrieved from "http://en.wikipedia.org/wiki/Between_Facts_and_Norms"

Categories: Books in political philosophy | 1996 books