JÜRGEN HABERMAS: A LAW FOR EUROPE Thoughts about law, beside Habermas’ text: Morality, Law, Politics1 2 By Manuel Cappello, en.manuelcappello.com
LAW’S ABSTRACT AND UNIVERSAL SHAPE “There are 144 customs in France, they say, that have the force of laws; these laws are nearly all different. A traveller in this country changes laws almost as often as he changes horses. […] Nowadays jurisprudence has perfected itself so much that there is no custom without many commentators; no one of which, needless to say, is of like mind.”3 With these words, Voltaire described the French legal system before the Revolution: a variegated construction hosting in its recesses the privileges of clergy and nobility. This situation changed with the French Revolution4 and the passage to a unified law of an abstract and universal kind, which still today constitutes the backbone of state organizations. An abstract thought is devoid of colours and smells, of places, dates, and faces: the abstract and universal shape does not allow it to favour certain individuals rather than others, because it can not name them (in fact, should it name them, we would get an expression not abstract, but having concrete references).5 Being unconnected to any definite conditions, it is portable throughout the different places of our social universe of today and tomorrow. Let’s take a look at article 575 of the Italian penal code, which concerns murder: Anyone who causes the death of a man shall be punished with imprisonment for not less than 21 years. This text, by means of the word “anyone,” clearly refers to every individual, not only those belonging to certain social groups. This text does not talk about a murder committed by the poor against the rich, and neither about longer or shorter detentions for men or women.6
1 I worked on the following Italian edition: Jürgen Habermas, Morale, Diritto, Politica, Piccola Biblioteca Einaudi, vol. 359 - Filosofia, Torino 1992. This volume includes the original German titles Recht und Moral (Tanner Lectures 1986); Volkssouveränität als Verfahren (1988); and Staatsbürgerschaft und nationale Identität (1990), in Jürgen Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Suhrkamp, Verlag Frankfurt am Main 1992). The quotes in the following notes (if nothing else is indicated) are from the Italian edition. All translations from Italian to English made by the author (both quotes and the entire article, which was composed in Italian). 2 After a deep reading of Habermas’ text, I chose some of the main ideas present in it. This article has been constructed as a narration preparating the enunciation of the chosen concepts. This means the arguments coming from the book are not delved into; rather they are simplified to provide a basic introduction to the citizen. 3 Voltaire, Oeuvres de Voltaire, Dictionnaire philosophique par Voltaire (Paris: Imprimerie de Cosse et GaultierLaguionie, 1838). Entry for “coutumes”: “Il y a, dit-on, cent quarante-quatre coutumes en France qui ont force de loi; ces lois sont presque toutes différentes. Un homme qui voyage dans ce pays change de loi presque autant de fois qu’il change de chevaux de poste. [...] aujourd’hui la jurisprudence s’est tellement perfectionnée, qu’il n’y a guère de coutume qui n’ait plusieurs commentateurs; et tous, comme on croit bien, d’un avis différent.” 4 Of course, the codes historical formation process is complex and extends through time; in addition, its formation is not a direct and exclusive effect of French Revolution. 5 “Citizens’ collective will, being capable of expressing itself in the form of universal and abstract laws only, operates excluding all interests not susceptible to be generalized, admitting only those rules that guarantee equal liberties to all men.” Habermas, “Morale, Diritto, Politica” p. 84 6 If we say, in example, that a vassal can sell wine 30 days before others, or that only vassal can hunt game, or that only vassal has the right to receive a tribute from all the lands of the fee, then we are creating distinctions favouring certain social classes.
THE LEGITIMATING POWER OF LAW’S RATIONALITY Max Weber talks about law’s rationality referring to the universal and abstract form of laws, in addition to other linked characteristics, such as the organization of the laws in a sentences system; the absence of specific addressees of the law; an application as mechanical as possible, intended for minimizing cases where subjective interpretation is needed; clearness and simplicity to generate in citizens definite expectations about what is allowed, which are important premises for social and economical projects. In this conception of law’s rationality, attention is not directed to what is said, but to how it’s said. Indications are given not about the content of a law, but about the shape in which it’s written. Therefore one can talk about law’s formal properties. If we imagine photographing a law, we will obtain a photo in which it will be possible to detect rationality as intended by Weber, which in his speech refers to law’s structure and not to law’s processes of formation, nor to law’s application processes, for capturing which a video would be needed. According to Weber, law’s rationality is the main property that allows it to justify power, to legitimate it in the people’s eyes. In fact, governments don’t limit themselves to impose by force a series of rules made at their pleasure without respecting any principles, but they need to operate within laws capable of gaining some level of acceptation from the population.7 The alternative, an undesirable one, is a completely authoritative power operating without consensus, by force alone.
MOVING AWAY FROM LAW’S FORMAL RATIONALITY Historically, centralized law with abstract and universal properties functioned in contrast to the privileges of the clergy and nobility, and thus favoured those who gained wealth by their labor instead of by birth, rent, or tradition. Thanks to ownership protection, many citizens can accumulate and preserve the fruit of their work. As such, conditions are created for an increased importance of the markets where individuals meet one another to seek advantages by exchanging goods and services, without violence, in the shadow of a regulation guaranteed by a state having force monopoly. The described change represents progress the moment it allows citizens to realize their life projects, but it’s not devoid of negative aspects. In particular, it does not hinder the formation of a wide swath of the population that falls beneath the minimum income level required for a dignified life. If this malaise strata assumes a systemic nature, the need arises for its systemic management by the state by means of apposite rules.8 Examples are disability or retirement pensions, health care, and collective work contracts specific to each industry. Where is the problem, for him who desires to preserve law’s rationality? The point is that laws made to improve the status of the poor will not speak about men in general, as required by law’s abstractness and universality; instead, they will specifically talk about the poor. Tutelage of weak men turns to be an increase in law complexity, and it pushes us away from formal rational criteria, because of the need to define specific situations in which help and intervention must be addressed. To sum up, simplicity and abstractness are applied at the beginning of the nineteenth century to fix inefficient laws that became entangled with privileges. Moving away from the zero point where this 7 From common citizens, but from legal professionals as well. 8 The so-called welfare state.
change occurred, the negative effects of the new laws accumulate and become evident as grey zones9 that need to be managed by further laws, which are more specific and detailed because they must suit the multiplicity of the existing system, without the possibility of deleting it by a new, improbable revolution. This development is equivalent to a shift from formal rationality as described above. We can talk about this process as law deformalization. Deformalization comes both from an historical continuity not repudiated by a discontinuity moment and from an increase of complexity in the social context in which law is applied.10
HABERMAS AND LAW’S PROCEDURAL RATIONALITY In the ancient empires, law is based upon its sacred origin, upon habits and upon bureaucratic action. The sovereign can’t make of law what he wants, because this would mean going against the tradition and sacred authority law derives from. The fact that political power can’t dispose of law by will is indicated by talking about an unavailability moment. In the moment when custom and the sacred sphere stop being sources of law, the only references remaining are the collections of laws created by man, who, having created them, can modify them too; so one faces the risk of law being manipulated by the political sphere for its own purposes, and the need is felt to anchor law to a referent that can protect it from the whims of power; one such possibility is to establish law as an expression of the collective will of the people, which authority is then placed above every other state’s body. Should someone ask me what I’m doing now, I would not reply analysing the inside of my psyche and trying to detect the elements of thought involved in writing, and those elements having a rest, but I would tell him: “I’m writing an article about a Habermas’ book.” Now let’s create a mind experiment: try to imagine a people provided with a collective will, and ask him what is right and wrong. I don’t know what he will answer, but if he thinks as did I above, then he will speak without reference to his internal divisions, without mentioning single citizens and without referring to specific social situations. He will speak in an abstract way. This is how one can think that a collective citizens’ will expresses itself with abstract and universal laws, with which it preserves law’s autonomy in relation to politics, opposing the inopportune wishes of the government with the necessity of expressing rules in a certain manner that is supposed to guarantee justice, avoiding explicit privileges allocated to certain social classes. Habermas regards as an error considering the universality and abstractness of language as a guarantee that the aims of a collective monolithic will are fulfilled. 11 Universality and abstractness of law remain as reference points, but it’s necessary to deepen our understanding of how decisions form themselves, breaking the black box of people’s collective will as it has been thought by
9 “In the degree to which constitutional monarchies and the Napoleonic code affirmed themselves, social inequalities of a new kind came to light. In place of inequalities linked to political privileges, other inequalities succeeded them, starting from the institutionalization of equal liberties, in the field of private law. They were the social consequences of the unequal distribution of an economic power that was wielded outside the political dimension.” Habermas, “Morale, Diritto, Politica” p. 88 10 This does not mean that at the zero point laws were “better” because they did not need the integrations that subsequently have been necessary. At the zero point, new laws have not yet had time to diffuse their consequences, which in a complex world can’t avoid having negative as well as positive aspects too. 11 “Kant, too, has been responsible for a confusion that soon will no more allow to separate between them two completely different meanings of universality: the semantic universality of an abstractly general law will early take up the place of procedural universality, characterizing the democratically established law as an expression of a popular collective will.” Habermas, “Morale, Diritto, Politica” p. 72
Rousseau.12 This deepening has not been made by socialists,13 while it has occurred in liberal theories.14 The abstract and universal nature of law does not allow it to formulate measures directly assigning privileges to particular citizens with a name and a surname, but also does not prevent laws from casting advantages and disadvantages onto society’s foliage creating dark and light zones. To avoid a manipulation of the grey regions generated by laws, there is the need to regulate the process by which decisions representing the will of all are taken at the top, rather than simply the manner in which these decisions must be written. In this way, in respect to the formal rationality as intended by Weber we find ourselves with a concept of procedural rationality broader and sounder, that can keep its validity in the complexity of the contemporary situation, in which it’s hard to maintain intact the abstract and universal nature of law. While formal rationality according to Weber had an instantaneous nature (in the sense that it was about properties present in the law in every single instant), examining procedural aspects of the law clearly brings us to consider events extended in time, and there is a passage from the synchronic dimension to the diachronic one. Using a musical metaphor, we could say that while Weber pored over the harmony among superimposed sounds, Habermas focuses our attention on melody and chord succession.
LAW AND MORALITY In our society there can be different moral types; for example, there can be a morality based on the maximization of total happiness or one based on the practice of certain personal virtues. There can be one based on the love of the neighbour, or again another based on accepting only those behaviours that could be put to use by all men without damaging society. So we find ourselves in a situation where a unique law must be able to mediate among varying moral systems. Aside from this, moral nature is intrinsically different from legality. Morality is more propositive, and drawing examples it can inspire action, while law is a prohibitive system. In addition, morality can talk about invisible thoughts, while this area remains inaccessible to law: one can not be on trial for his intentions. Law handles concrete and identifiable objects, while morality is (or can be) the seat of more daring inspirations and is hard to pigeon-hole systematically. Morality can describe a behaviour model that is a fragile equilibrium, rarely only reachable in practice; by the finger, morality can even point to the moon, and it’s not said that its speeches always reach definite conclusions. On the contrary, law must be a rule easily enforceable in every day contexts, and must arbitrate conflicts on the routes of the world. Law must (or should) give rise to fast and objective material decisions, while needing only reasoning that is as simple and repeatable as possible. If we think about their respective social functions, we can consider law as a sort of completion of morality, because it constitutes the mechanical apparatus by which human conflictuality magma is 12 “It is necessary that the moral substance of self-legislation - compactly concentrated by Rousseau in a single act – disarticulates itself through the many grades of the proceduralized formative process of opinion and will, thus becoming accreditable in low-denomination banknote also.” Habermas, “Morale, Diritto, Politica” p. 99 13 “Marx and Engels limited themselves to touch on the Paris Commune, and they always disregarded every issue of democratic theory. […] To the enlarged concept of politics, it did not correspond to any theoretical deepening about which functions, communication forms, or institutionalization conditions, should characterize an egalitarian formation of the will” Habermas, “Morale, Diritto, Politica” pp. 88-89 14 “Every democratically enlightened liberalism keeps faith to Rousseau’s intention, but in the same time recognizes that popular soveraignity shall express itself starting from the discursive conditions only of an opinion and will formation process, differentiated in itself.” Habermas, “Morale, Diritto, Politica” p. 85
modelled towards the direction suggested by morality.
A PROJECT FOR EUROPE Habermas longs to detect the criteria permitting the elaboration of a fair and functional law for the contemporary context, and the European context in particular. To do this, he begins by discussing the concept of rationality described by Max Weber, and he means to give a better version of it, one more resistant to the law deformalization problem as well as capable of regulating how law absorbs moral matters, and of protecting law itself from attempts at manipulation led by political power.15 Habermas research is quite broad, taking account of different themes, from the origin of law in prehistoric societies to contemporary trends in legal thought in Germany and the USA, and from issues related with the formation of a united Europe to the thought of Niklas Luhmann and Friedrich Fröbel. Special attention is given to a series of considerations about the French Revolution and to the Enlightenment thought of Kant and Rousseau. The solution detected by Habermas is a law’s rationality intended above all in a procedural sense: that is, the formation processes of political-legislative will must be such to receive the moral content present in public speeches made outside institutional structures, both political and juridical. Following Habermas, we see that democracy depends on the way we as citizens discuss arguments, on the quality of our speeches. Habermas’ project is a political construction capable of incorporating different cultural shapes of life. Against this project of liberal democracy based on citizens’ awareness works that part of power that always longs for the dozing off of thought. In favour, here we are. If souls stay sitting in their armchairs watching TV, there is not much to hope for. But every time someone gets up from comfort to really want something, then the project regains strenght and a united, independent Europe returns to the realm of the possible, keeping up with its role in history.
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15 In the sense that there is the aim of defining a criterion under which political power can’t do all that it wants about laws, just because it must act within well-defined procedures allowing to gather the fruits of public speeches. Cf: “Communicative power is wielded in the modality of a siege. […] It regulates and fixes quotas to the reasons pool that the administrative power can sure instrumentally manage, but never - structured as it is in a juridical form afford the luxury of ignoring.” Habermas, “Morale, Diritto, Politica” p. 98