Date: Sun, 15 Feb 1998 14:01:14 -0800
Subject: HAB: Re: BFN & co-origination


Rob:

Thoughtful posting! Thanks.

First, some note of previous interest in BFN. Then I want to make a
dialogue of your points and questions.

----------------------------------------------------

There have been two extended attempts in the Habermas List to focus on
_Between Facts & Norms_, and these postings remain available at the
gopher archive folders posted by Spoon for this list.

The first group sought to get going in July, 1996, and got to
presentations the last week of July, focusing on chapter 1 through
mid-August (thanks to  extended postings by Lois Shawver!), followed by
a few postings on chapter 2, mid-August-to-early October (thanks
especially to Barbara Korth).

But the effort ended there (as far as the public list shows. Did
off-list interchanges occur?)

The second effort was born later that month, and got down to substance
around the turn of the year, ending in mid-February, 1997.

Some mention of BFN happened tangentially this past fall, too (Arto
Laitenen, 9/25/97; my response to Michael Salter, 10/25 and 11/13/97),
but no one bolstered my interest in focusing on it this year.

I planned last fall to work through BFN around now (beyond the first 2
chapters and Postscript that I've read), but my reading schedule for
Habermas has been pushed back by circumstance. I'm looking to early
spring now (after a new reading of Habermas books from the 1980s, beyond
the J&A essay discussed last spring). I want to post regularly to this
list when I do work through BFN, if that is acceptable. But I really
don't know when that will be.

In any event, I hope you get some substantive response soon, in terms of
BFN.

The best I can do is respond in terms of my sense of Habermas that is
based on work of the 1980s, which is presumably the basis of his applied
work in BFN.

----------------------------------------------------

>[a] ...there is in all language the telos of reaching understanding;

Without a doubt.

>[b]...coordinated action ideally comes out of understandings and
agreements based on the redemption of validity claims;

Yes, but one should distinguish between tacit agreements and explicit
agreements. In daily life, agreement (or interacting agreeably) is not
usually based on the redemption of validity claims because the validity
of understanding is commonly taken for granted, based on custom, etc.
But disagreement is just as common, whereupon agreements have to be
checked against the other's apparent misunderstanding. But even here,
rarely do validity claims actually get addressed overtly. Often, persons
can re-anchor their interaction without too much concern about whether
misunderstanding is a factual or normative matter. Disagreement may
appear as merely a matter of different understandings, partially
factual, partially self-representative, partically normative.

>[c] ..., 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;

Yes, if "now" refers to specifically modern forms of action. The present
is always a mix of levels of understanding, a heterodoxy of
mythically-based authority (theocentrism in "moral" action) and modern
authority (scientific justification in public policy).

>[d] ... this mutual understanding now manifests as the law, the
integrating agent of modernity;

The law is ONE form of mutual understanding, more specifically: one form
of normatively-based understanding (more specifically:
procedurally/formally established normative understanding). But much
modern normative understanding is not formally derived, and other modes
of validity besides the normative constitute mutual understanding! Truth
and goodness in modern understanding doesn't pretend to be reducible to
questions of justice.

>[e] ...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';

Yes, but I don't know that this is Habermas' view of Weber
("exclusively"?).

>[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;

Yes and no. Law may assert itself factually, as a enforceable state of
affairs; but it may also assert itself normatively, as a fairly derived
domain of responsibility and accountability. Between facts and norms,
the law evolves. When its factuality is effective, this is because it is
accorded legitimacy (we presume the law was properly instituted). So,
yes, instrumental coercion only works as *law* (instead of brute force),
inasmuch as the "objects" accord it legitmacy (I sometimes hate the
constraints that traffic laws put on my freedom of movement--laws I had
no hand in choosing; but I can appreciate the validity of these laws,
and the legitimacy of the codification of them). But civil society must
be based on valid processes of constitution and legislation, whose force
is representatively (if not participatively) shaped fairly. Habermas
does NOT believe that civil society can be "constructed" instrumentally.

>[g] the law is to be seen as 'the medium through which communicative
power
is translated into administrative power';

I suppose this is fair to say of Habermas.

>[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);

A distinction between norms and values is very important. But norms may
or may not make universalistic claims, and may be called to account in
any case. Norms may be based in values! For example, the value of
"liberty" is partically constitutive for democractic norms of political
action.

>[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;

I don't understand this; it doesn't seem plausible to claim that
normative values simply imply functionalism. A constitutional value may
have normative force in jurisprudence, just as it might in normal
political communications.

>[j] then the co-original private and public autonomy of the citizenry
is no
longer represented in the law;

I enthusiastically support a notion of co-origination! But I don't see
why--and don't believe Habermas claims that ---private autonomy should
be represented in the law, other than formally: as protections of what
is not the business of public representation.

> [k] it is this co-originality that must be established if the book's
intention is to be realised.

I would agree that co-originality must be established if law is be
ultimately well-founded. But I expect that it is not the intent of BFN
to do this. It would be the intention of Habermas' work altogether to
provide a fundamental sense of co-originality, involving moral-cognitive
development and discourse ethics. I anticipate that BFN sets out to be a
discourse about law and institutionality, which shows its connection to
the larger context of Habermas' work, in which co-originality can make
sense in Habermasian terms.

>[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?);

Sounds right to me, except that liberal functionalism doesn't follow
from privileging values as such over norms as such; rather, privileging
*instrumentalist* values over other kinds of values (humanist?
communicative? developmental?) in the conceptualization of normative
sense is liberal, in the worst sense.

>[m] how do we get to 'a third way'?

I think that third ways are already commonplace in some areas of the
planet, some domains of interaction, some economic formations, some
cultural spheres. But these new ways are not readily named in
traditional terms and lack the omnidisciplinary coherence of traditional
schools of thought. Coming to terms with the unprecedented character of
our planetariness is basic to my own post-"postmodernist" Project.

The "third" ways cannot be comprehended "dialectically," in the
conceptualist sense of this term that is attractive to neo-Marxists.

>[n] well, let's look where we should - at the object/subject of the
law;

Let's not. I doubt that such a look can avoid implying a subject-object
dualism, so I question that this is where "we should" be looking to
understand third ways.

>[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.

Yes!

>[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.

Yes, BUT Habermas doesn't locate law in administrative power. Rather,
administrative power gains its legitimacy from law, whose foundation is
an ideally automous public.

>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')?

I'm confident that private freedom cannot be fully comprehended in terms
of communicative reason, and I'm confident that Habermas would agree.
But freedom that is not relevant to reason cannot be relevant to
conflicts of freedom, for reason pertains to just that which may become
relevant to communicative action (which may be most everything,
especially for persons who have a thin sense of self apart from their
intersubjectivity). Inasmuch as we are interactive beings--children of
families and actors in public--there is an intersubjective constitution
of our freedom. Inasmuch as our private freedom is apparent to others or
engages others (or conflicts with others), it is representable to
others, thus articulable, and therefore relevant (if not already
involved) in the constitution of freedom, inasmuch as that freedom is
intersubjective. *Enforcing* this intersubjectivity, through generosity
of understanding and, if necessary, procedural justice, counters
possessive individualism.

But children ought not be reduced to their parents', peers' and
teachers' views of them; nor ought human potential be reduced to public
action. Creative and innovative persons depend on a rich sense of
existence apart from what is intersubjectively recognized.

>Does this [Habermas'?] 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?

The ideal speech situation is no more inaccessible than one's own
capacity to sustain generosity of understanding and to commit to inquiry
wherever it goes. This is not to say that the ideal speaking situation
is nothing more than this. But, for Habermas, it is an ideal that is
implicit to all communicative action. This implicit ideality of openness
and fairness in communicative action can only become absent by
force--through oppressive socialization and political domination.
Unfortunately, distorted development is normal in much of the world.
Even the most loving kinship-based ethic, if taken as sufficient unto
itself, leads to distorting forms of understanding in a higher-level
environment of mutual expectation that any mode of assumption may be
questioned and sorted out mutually, as happens in modern education.

The ideal speaking situation, in the long run, educes cognitive
development, because it opens one to--and is open to--questioning at, in
principle, any scale of concern (though time may not afford this in
particular cases).

>Does the claim that communication is the foundation of law usefully
solve
the private rights versus public goods dilemma....

Yes, I think so. But this involves a sense of self clarification that
appreciates the difference between public stance and private background,
just as law sets out to ensure a manifold boundary between public
accountability and private discretion.

>... (how would [communication] inform the judiciary in practice, and
what differences might we expect in our legal system)?

This is a matter of hermeneutics, or, to my mind, discursive
hermeneutics (See my posting of 11/16/97 on "discursive hermeneutics").

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

I'm unsure about your idiom here: "attends"? Understanding is the basis
of agreement, such that one could claim that any argument depends on
understanding--deepening and broadening understanding, in terms of our
engagements, our commitments, our beliefs, values, identifications,
hopes, and so on.

To understand co-origination, though, I think one should focus
especially on the character of self identity, in its plurality of
intersubjective involvements that are integrated by a singular life
history to which no one else has full access. At last, we are faced with
our own sense of intimacy: Self-with, Self-in, Self-for, life, world,
others, whathaveyou.

Cheers,

Gary




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