Date: Sat, 14 Feb 1998 17:24:05 +1100
Subject: HAB: BFN


G'day all,

Mostly on the strength of an attempt to make sense out of BFN by way of
Rasmussin's review of it (I can't afford the book itself), I'm posting a
point-form summary of the book and a couple of probably stupid questions.
All I'm asking is, have I grasped it at all, are the questions fair and
useful, and, if so, how might we answer them?

Habermas, I take it, contextualises the book with an opening rehash of his
communicative reason thesis, proceeding henceforth to argue:

[a] that there is in all language the telos of reaching understanding;
[b] that coordinated action ideally comes out of understandings and
agreements based on the redemption of validity claims;
[c] that, where the authority of the sacred once functioned to regulate the
spheres overseen by habit and custom, only mutual understanding can perform
that role now;
[d] that this mutual understanding now manifests as the law, the
integrating agent of modernity;
[e] that the law's legitimacy then rests on the 'non-instrumentalisable
quality' of intersubjectivity, which H opposes to Weber's thesis that the
law's legitimation resides exclusively in 'political domination';
[f] to integrate a community which constructs itself as 'civil society',
the law must be an instrument of coercion, yet it only has this capacity
while its objects accord it legitimacy;
[g] the law is to be seen as 'the medium through which communicative power
is translated into administrative power';
[h] we legitimise this process by way of the application of norms
(universally obligatory, and therefore requiring justification) and values
(historically specific, contingent and teleological preferences);
[i] the law can not remain legitimate if courts accord values the status of
norms because functionalism tends then to prevail over the democratic
process of legitimation;
[j] then the co-original private and public autonomy of the citizenry is no
longer represented in the law;
[k] it is this co-originality that must be established if the book's
intention is to be realised.
[l] the liberal model stressed the negative freedom of a subject abstracted
from the market mechanism, while the post-war social-welfare model imposed
goods, and consequently marginalised the freedoms upon which liberalism is
predicated (the functionalism that follows from privileging values over
norms?);
[m] how do we get to 'a third way'?
[n] well, let's look where we should - at the object/subject of the law;
[o] we, the citizens, can 'adequately exercise [our] public autonomy,
guaranteed by the rights of democratic participation, only insofar as [our]
private autonomy is guaranteed' - ie. the autonomy of the private citizen
and the public subject are mutually constitutive and therefore inescapably
interdependent to the point of mutual definition.
[p] as we are the arbiters of validity, it is only in our communicative,
ie. necessarily public and social, dimension we produce the legitimacy upon
which the law depends - our role in this discourse depends on our
personal/private autonomy - because we need to be free to assert ourselves
in requisite rational argument.  So the foundation of the law
(administrative power) is an autonomous public, defined as free individual
discussants deliberating on the normative.

Some Questions:

Does this mean private freedom is defined exclusively as that degree of
autonomy required to manifest communicative reason (is this what H. means
by 'To the extent that we become aware of the inter-subjective constitution
of freedom, the possessive-individualist illusion of autonomy as
self-ownership disintegrates')?

Does this line of argument rely on an ideal speech situation, and, if so,
would the absence of this ideal context/procedure mean that Weber's notion
of political domination actually prevails?

Does the claim that communication is the foundation of law usefully solve
the private rights versus public goods dilemma (how would it inform the
judiciary in practice, and what differences might we expect in our legal
system)?

Does the whole argument depend on the proposition that agreement attends
understanding?

Thanks for reading!
Rob.


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Rob Schaap, Lecturer in Communication, University of Canberra, Australia.

Phone:  02-6201 2194  (BH)
Fax:    02-6201 5119

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'It is questionable if all the mechanical inventions yet made have
lightened the day's toil of any human being.'    (John Stuart Mill)

"The separation of public works from the state, and their migration
into the domain of the works undertaken by capital itself, indicates
the degree to which the real community has constituted itself in
the form of capital."                                    (Karl Marx)

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