Date: 	Mon, 16 Feb 1998 12:06:39 -0500
Subject: Re: HAB: BFN



Nice summary. Especially for not having read the book. A few comments:


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

Positive law is not the only integrating agent of modern societies, it is
just the only mechanism that is able to integrate both system and
lifeworld. The idea is that the separation of system and lifeworld creates
domains of social interaction in which conduct is not directly normatively
regulated, i.e. where agents are free to adopt a broadly instrumental
orientation towards each other. The typical example is a market economy.
However, the traditional "problem of order" shows that instrumental
interaction will not spontaneously generate orderly interaction, and so any
domain in which this action-orientation predominates will have to be
subject to general legal constraint (so while the law does not tell
economic agents exactly what they should do, it does require that they
respect each others's property rights, and so on.) However, this creates
something of a challenge for the law. In traditional law (exemplified for
Habermas by medieval natural law theory), each rule has, at least
indirectly, divine authorization, and so directly commands the allegiance
of all agents. They are expected to obey the law for its own sake, just as
they would a moral rule. However, when an attempt is made to legally
regulate a domain of interaction in which one leaves open to agents the
option of acting instrumentally, the law can influence them only through
its power to sanction. Thus Habermas accepts Kant's idea that, because
modern law must leave open to agents the option of adopting an instrumental
orientation toward it, the legislator must find a body of rules capable of
regulating the actions of a "race of devils." However, the specific content
of the rules needed to regulate a race of devils will clearly differ from
the content of the rules needed to regulate angels, and so once a
substantive body of positive legal regulations is developed, it is unlikely
that any given one of these rules will be directly justifiable from the
moral point of view. As a result, the validity of these laws, the claim
that they make to deserve the respect of all, will have to be cashed out at
a somewhat higher level of generality, viz. at the level of the democratic
procedures through which it was enacted.

So the reason that positive law is the primary integrating force in modern
societies is strictly due to the fact that, because of its coercive power,
it is the only kind of force capable of keeping the "system" in check. This
does not mean that it is the only source of integration. Within the
lifeworld social integration will still be achieved through direct exercise
of communicative rationality.

Incidentally, I take it that the co-originality thesis stems directly from
the conditions under which we would be willing to accept regulation through
positive law. In accepting this form of legal regulation, what we do in
effect is consent to the creation of a large coercive apparatus that
functions in a quasi-mechanical fashion, in which between the time that we
break a rule and are punished, we are at no point entitled to question the
validity of that rule. I take it Habermas's idea is that we would only be
willing to do so under the conditions that would make this form of law
valid, viz. that we retain the option of adopting an instrumental
orientation toward this law, and that we have input in the content of this
law through the democratic process. The rights required for the former are
our negative liberties, for the latter our positive ones. The interesting
idea here, it seems to me, is that the negative liberties are grounded in
the requirement that law which is positively enforced remain positive, i.e.
that it not attempt to require our direct moral allegiance.

One other little remark: Habermas's view of law and the system of rights is
extremely constructivist, and thus a lot closer to Rawls that he makes it
sound. Habermas's analysis of moral discourse reconstructs a universal
human competence, viz. the ability coordinate action through language, and
then explores the conditions that would render the exercise of this
competence valid. In the case of law, however, Habermas makes a far more
limited claim, because he does not take positive law to be universal, but
rather something that we invented at a particular place and time. As a
result, the system of rights would also be historically contingent in their
force. It would seem to me that, as a result, his account of law relies
less heavily upon his claim that there are idealization embedded in the
practice of reaching mutual understanding.

Last thing: It is not exactly that "agreement attends understanding."
Habermas's claim is that one understands an expression if one knows what
conditions would have to obtain in order for one to accept it, and one
agrees with it if one knows what these conditions are, and believes that
they do obtain.

Best,
J.H.



******************
Professor Joseph Heath
Department of Philosophy
University of Toronto
215 Huron St.
Toronto, ON, Canada
M5S 1A1




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