Monthly Archive for January, 2007

Matt Wood argues:

After just reading two articles dealing with Jurgen Habermas’s theory of communicative action, I think I can take a tentative step towards fleshing out my arguments for the role of dialogue in the definition of law. According to this helpful paper, which summarizes Habermas’s theory of communicative action (and quotes from his book The Theory of Communicative Action):

“What Habermas attempts is to identify and reconstruct ‘the rational internal structure of processes of reaching understanding’ in terms of ‘the validity claims of propositional truth, normative rightness, and sincerity or authenticity’: ‘the concept of rationally motivated agreement, that is, one based on the intersubjective recognition of criticizable validity claims’; and ‘the concept of reaching understanding as the cooperative negotiation of common definitions of the situation.’”

As contrasted with instrumental rationality, Habermas proposes the ubiquity (and primacy) of “communicative rationality”, which in his own words “carries with it connotations based ultimately on the central experience of the unconstrained, unifying, consensus bringing force of argumentative speech, in which different participants overcome their merely subjective views and, owing to the mutuality of rationally motivated convictions, assure themselves of the unity of the objective world and the intersubjectivity of their lifeworld.” Rationality itself, according to this theory, turns on the ability of a speaker to justify with convincing grounds or reasons the validity of his communicative statements, dialogically – in the course of conversation – and hence intersubjectively . . . in other words, through persuasion. This conception of rationality looks to be grounded in a consensus theory of truth, and Habermas himself appears to concede as much: “The condition for the truth of statements is the potential agreement of everyone else.” (While I have doubts about how far this truth-criteria can be pushed in the context of scientific discourse, I believe it touches the core nature of “political truths”, such as questions about the distribution of “power”.)

Habermas links communicative rationality to a theory of argumentation, in which “[a]rgumentation refers to ‘the type of speech in which participants thematize the contested validity [claims of an expression] and attempt to vindicate or criticize them through argument,’ and an ‘argument contains reasons or grounds that are connected in a systematic way with the validity of a claim of a problematic expression.’ … [A]rgumentation aims to produce cogent arguments, which bring about intersubjective recognition of validity claims and transforms opinion into knowledge. … Each aspect [of argumentation] can be respectively said to aim at ‘the assent of a universal audience,’ ‘the attainment of a rationally motivated agreement,’ and ‘ the discursive redemption of a validity claim.’ … Thus, for Habermas, the rationality of social action is and should be assessed in relation to the validity claims [whose acceptance prompted such action] and the possibility of reaching agreement in critical discourse, and thus rationality is conceived as inherent in communicative practice which is intrinsically oriented towards consensus.”

Habermas identifies three types of validity claims that are at least implicit in every communicative expression: claims of propositional truth, claims of normative rightness, and claims to sincerity. Each of these types can be “thematized” by an expression (by which I understand Habermas to mean ‘made more cognitively salient’, or ‘emphasized’), even though all are actually present, giving rise to a set of more-or-less distinctive speech acts: constatives, regulatives, and expressives, respectively. (It should be noted that Habermas includes a larger number of speech acts in his own classificatory scheme.)

Lawrence Solum has written (Freedom of Communicative Action, 83 Nw.U.L.Rev. 54 (1989)) that “[u]nder ordinary circumstances, the participants will share a common set of norms or facts to which appeal may be made in the course of argumentative discourse. Where there is disagreement about specific facts or norms, the participants may still agree on the appropriate standards or criteria by which controversial norms or facts may be judged. … In some situations, however, even the standards or criteria of truth and rightness are the subject of controversy; in such cases the continuation of the attempt to reach agreement demands a move to theoretic discourse. Rational argumentation, thus, [as Habermas puts it] ‘can be conceived as a reflective continuation, with different means, of [communicative] action oriented to reaching understanding.’” Solum describes this overall process as “discursive will formation.”

I’d like to propose that “communicative action” – a process whereby validity claims are raised in speech, discursively defended in argument, and accepted or rejected as a basis for action – underlies the phenomenon of “law.” In fact, I believe “law” can be thought of as a special case of communicative action, wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.

First, notice the extent to which speech underlies the effectuation of “law.” In the American system of government, a subset of the population known as Congress-people discuss amongst themselves a new norm-proposal. A formal vote is taken (itself a communicative act, rooted in assessments of the normative validity of the proposal on non-positivist grounds) and the approved norm is then written and conveyed to an authorized publisher, who records the norm in text. Copies are manufactured and distributed to judges, lawyers, and other interested parties, including the public. Each reading of the text completes an act of communication. When a violation of the norm is alleged, this text is invoked by one private party in a specialized discourse-forum known as a court. Arguments for action are conveyed to a judge by the laywers for each party (who have learned the facts of the case from their clients, and the law from published sources), and each lawyer invokes Congressional, judicial, or Constitutional speech (i.e., officially promulgated norms) as the grounds for or against the validity claims of “rightness” implicit in their requested rulings. The judge assesses the persuasiveness of the grounds for the competing validity claims and reaches a conclusion, which he communicates to the parties and larger community in the form of an “opinion”. Depending on the behavior of the losing party, this judicial speech can employed as the grounds for the validity claims implicit in requests, communicated to enforcement authorities, for the taking of enforcement action. The dialogic chain continues on, from chief of police to beat officer, from officer to officer, from officer to arrestee, from officer to jail guard, from officer to judge hearing habeus corpus petition, on and on… each link a case of conversation, of dialogue, in which repeated efforts to induce action by listeners is pursued by offering grounds to support the implicit (or explicit) normative validity of action, typically by reference to legal speech, itself typically in the form of texts.

To my mind, the importance of law as a socially ordering force lies in the ability of its *invocation in dialogue* to structure individual behavior (and I hope to have by now impressed on you the fundamental, utterly central role of speech in generating these effects). But I don’t think the truly remarkable feature of law lies in the propositional validity claims which are but one facet of the expressions that comprise links in the institutional ‘chain of dialogues’ that generate social order out of legal pronouncements (i.e., whether the statement “Congress passed a law saying X” is true) – although the validity of these propositions is surely a necessary condition for the success of “law.” Instead, it’s the implicit normative validity claims underwriting persuasion along this chain – the claims to a proposed action’s rightness – and their discursive justifications, that are most distinctive. In general, the mere fact that a governmental authority promulgated a norm is taken as *sufficient ground* for acceptance of a normative validity claim, and hence the promulgated norm, as a basis for action. Herein lies what I’ve been calling the ‘habit of legitimacy recognition.’ I think this simple dispositional response and its stimulation in the course of dialogue (through, for example, the invocation of positivist grounds to justify normative validity claims) is the tissue that holds the entire apparatus of state together. This is the “trust”, the voluntary acquiescence to state power, that works in place of the threat of violence as a means of organizing society and its many power-relationships. The unquestioned legitimacy of the state and its law is necessary for the efficient cooperation of so many actors; imagine the difficulty of governing if the legitimacy of the state had to be re-argued every time a demand was made in its name!

But this sedimented, automatic habit of legitimacy-recognition can be destabilized. Consistent with the habit’s important role in gilding grounds for the justification of normative validity claims, individual speakers may contemplate such claims with the help of their *entire* array of tools of normative evaluation, including moral principles. (Hence my use of the term “coherence theory of law” above.) As the moral propriety of a legal norm decreases, we might expect moral grounds for rejection of the normative validity of the legal norm (defined as a speech act to which the propositional validity claim of promulgation by a legal authority can be justified discursively) to overwhelm the sufficiency of “positivist grounds” for the acceptance of its normative validity. At this point, the links in the dialogue-chain that I’ve described as the very essence of the state may begin to snap, as communicative action between dialogue participants results in either consensus away from action justified on positivist grounds (and towards action whose claim to normative validity is justified on alternative, perhaps moral grounds), or intractable disagreement (perhaps rooted in the varying intensity with which the persuasiveness of moral and positivist grounds are felt). And we can expect the apparatus of the state (through the individuated yet communicatively coordinated actions of its remaining constituent actors – i.e., those still persuaded to cooperate on positivist grounds) to resort to violence as an alternative to rational persuasion through communicative action as a means of enforcing obedience and thereby preserving the state. If a critical mass of individuals begins to reject the normative validity of positivist grounds as a basis for the acceptance of proposed action, we might expect the general imperative of coordinated action that underlies all human societies to result in the formation of replacement authorities (again, dialogically), whose acts of norm-promulgation are more acceptable as a ground for the acceptance of the normative validity claims underwriting voluntary obedience to the promulgated norms themselves. Herein lies the texture and mechanism of secession, civil war, and a host of other social phenomenon that signal the breakdown of a formerly unitary political society. The terms of political dialogue change – via the changed justifications, or grounds, offered to defend validity claims – and collective action re-orients, one conversation at a time.

There is a teleological sort of thing going on with the Habermassian argument. We’re in a territory where it is our goal to reach mutual understanding, and this goal acts as the foundation (er, ceiling?) of communicative rationality.

But it could be observed (in the fretful-philosopher tone) that this is epistemically even more fantastic than the problem of establishing that there is an external world. In the latter, we’re trying to justify to ourselves that the phenomena that we are inundated with are caused by something “real”. But in the former, we’re setting up a standard whose ultimate validity is based upon something so nebulous and auto-eroding as “mutual understanding”. At least with the external world, vulgar appearances don’t shut themselves off according to either my whims or to the world’s fancies. But people shut up all the time, leaving me in the dark about the state of their understandings — these “appearances” are spotty and intermittant. Also, we have some sort of idea about what the world “is”, since we have all kinds of physics at our disposal. The cues associated with mutual understanding are not quite so clear, and our understanding of understanding is spotty. This is manifest in the fact that people misunderstand while thinking they understand, and understand when they think they don’t. Both of these aporias suppose that there is mutual good will in a conversation (a bare minimum to postulate if we want to even be talking about the same thing Habermas presumably is). But good will alone is nevertheless insufficient for mutual understanding.

This is not to say that we have good reason to believe that there is never any mutual understanding. It is just to say that one doesn’t have to be a cynic to concede that mutual understanding is difficult to achieve, and so, we should be doubtful as to whether it is the dominant force which props up the law. It certainly doesn’t appear to be the way that courtrooms operate. Quite the opposite. When trying to justify to myself the “mutual understanding” doctrine of rationality, while still admitting that the stereotypical courtroom is “rational” without being in the same timezone as a pursuit of ‘mutual understanding’, I could only suppose that what we see in vulgar debate and informal logic is more properly called “the ghost of departed reason”. I can accept that, but I wonder if anyone else would. (Though admittedly my experience of the courtroom is limited to episodes of Matlock. Perhaps that is telling.)

That being said, I really *want* to believe in a Habermas-style argument. He has broken ground in places where Grice feared to tread. But experience suggests to me that a) communicative rationality must be based upon strategic or instrumental action in most cases, because the desirability of reaching “mutual understanding” has to be cultivated (and constantly renewed); and b) communicative action is, in principle, a kind of strategic action, since strategic action is mere goal-directed behavior, and the reaching of “mutual understanding” is a goal.

Moving on to Matt’s contribution: for him, law is a kind of communicative action “wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.” The first thing I noticed is that this is a positivist’s account, so long as we construe “authority” in a strict sense of social authority. If we admit that things like “conscience” are sorts of “authorities”, then I suppose it wouldn’t be positivistic; but I’m not sure entirely what Matt’s intent was there, or how far he was willing to extend the scope of the claim. As he goes on to describe the “coherance theory of law”, we get less of a positivistic vibe, and more of an eclectic one; and this emphasis upon the social embeddedness of law is to the good, following the lead of Russell, (possibly) Dworkin, and modern blawgers like Jurisdynamics. But whatever moves are being made, they are surely not compatible with the Weberian formulation of law as what is justified by the authority. The ‘coherance’ story of how civil strife emerges is likely correct, but it is not clear how we have gotten from point A to point B, or whether the tools that have been laid out (namely the definition of law as given) are able to take us there.

The second thing — the centrality of meaning and communication to law — is surely preaching to the choir! I’m quite impressed by the symbolic interactionists, and they motivated my interest in philosophy of language. I think that’s likely true for the whole roster of L&S writers.