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Habermas on Kant’s World Republic

20/11/2011 By Kelly Cooper

"Hobbes interpreted the relationship between law and security in functionalist terms: the state accords the citizens, as the subjects of law, the guarantee of protection in exchange for their unconditional obedience. For Kant, by contrast, the pacifying function of law remains conceptually intertwined with the function of a legal condition that the citizens recognize as legitimate in promoting freedom. For the validity of law is based not only on the external threat of sanction by the state, but also on the internal reasons for the claim that it merits recognition by its addressees. Kant no longer operates with Hobbe's empiricist concept of law. However, with the idea of a transition from state-centered international law to cosmopolitan law, Kant also sets himself apart from Rousseau.

Kant breaks with the republican conception that popular sovereignty finds expression in the external sovereignty of the state — in other words, that the democratic self-determination of the people is internally linked to the collective self-assertion of a corresponding form of life, if necessary by military means. Kant recognizes that the democratic will has its roots in the ethos of a people. But that does not necessarily imply that the capacity of a democratic constitution to bind and rationalize political power must be restricted to a specific nation-state. For the universalistic thrust of the constitutional principles of a nation-state points beyond the limits of national traditions which are no doubt also reflected in the local features of a particular constitutional order.

These two operations — first, the linking of the idea of peace with a condition of legally guaranteed freedoms and, second, the separation between democratic self-determination in the domestic sphere and aggressive self-assertion toward other nations — clear the way for Kant to project the 'bürgeliche Verfassung' (i.e. the type of constitution which had recently emerged from the American and French revolutions) from the national onto the global level. This marks the birth of the idea of a constitutionalization of international law as a law of individuals. For individuals would no longer enjoy the status of legal subjects merely as citizens of a nation-state, but also as members of a politically constituted world society.

However, Kant could construe the constitutionalization of international law exclusively as a transformation of international into intrastate relations. To the very end, he advocated the idea of a world republic, even though he proposed the 'surrogate' of a league of nations [Völkerbundas] the first stage toward realizing such a commonwealth of nations [Völkerstaat]. This weak conception of a voluntary association of states that are willing to coexist peacefully while nevertheless retaining their sovereignty seemed to recommend itself as a transitional stage en route to a world republic. Many have wondered why he placed his hopes in such a conceptually flawed structure. From the vantage point of the legal and political networks of a pluralist, highly interdependent, yet functionally differentiated global society, it is easy to identify with the fortuitous hindsight of later generations the conceptual barriers that prevented Kant from overcoming this sterile alternative. Three reasons may have prevented him from conceiving the telos of the constitutionalization of international law; the 'cosmopolitan condition,' in sufficiently abstract terms to avoid assimilating it to the problematic model of a world republic and to prevent it from being dismissed as utopian" (Habermas 2009:313-315).

Habermas, Jürgen
2009[2005] Between Naturalism and Religion. Ciaran Cronin, trans. Cambridge, Polity Press.

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Habermas’s Sociology of Law

01/06/2011 By Kelly Cooper

"Unlike normative philosophy of law, which understands law from the inside—from the standpoint of jurists and laypersons who are concerned about its moral authority to obligate individual actors to comply with its rules—sociology explains modern law from the outside—from the standpoint of social scientists who are interested in its historical emergence as a factual precondition for modern economic and administrative systems. Seen in this dual light, law facilitates both the normative integration of individual actors (social integration) as well as the functional coordination of systems (functional integration). On the one hand, it designates an organizational tool (strategic medium) largely deployed independently of moral concerns about justice, by which government bureaucrats exercise their administrative power in coordinating the achievement of collective goals that are vital to maintaining economic efficiency and political order. On the other hand, it comprises norms of justice in accordance with which actors voluntarily coordinate their conflicting aims for the sake of social cooperation and solidarity.

Habermas is mainly interested in law as a normative institution. However, he directs much of his criticism against normative legal philosophies that are insensitive to the dual factual and normative aspects of law. On one extreme lies legal positivism, which proffers a functional or factual explanation for understanding why legal subjects obey the law. According to this view, persons feel obligated to obey the law not because it is morally just but simply because it is the law. They obey the law out of fear, or (adopting the viewpoint of a sociological observer) because they recognize that doing so contributes to an efficient and stable system. In Habermas’s opinion, although this view may suffice to explain why some people feel obliged to obey the law —out of fear of the consequences for failing to do so—it cannot explain why most people do. Not only are the consequences of disobeying the law far from certain, but the long-term capacity of the law to command obedience depends on its being generally obeyed 'out of respect for the law' as such.

Even when positivists like H.L.A. Hart concede the truth of this point, holding that most citizens in stable legal regimes obey the law because it is the 'right thing to do,' apart from its consequences, these positivists limit the normative, critical attitude that citizens can adopt with respect to the law. For positivists, if citizens recognize that they ought to obey the law because it is the right thing to do, it is because citizens recognize, in an unquestioning way, the 'rightness' of the legal authority of the basic law, such as a constitution, from which all their nation's laws trace their rightful pedigree (what Hart calls a 'rule of recognition'). Judges and jurists can criticize the wrongness of a piece of law making or a judicial decision for having deviated from the basic law, but they cannot criticize the rightness of basic law itself, inasmuch as this law defines what is legally right. They might, of course, criticize the basic law for nonlegal reasons, such as its ineffectiveness or moral unfairness. But there is something awkward about this, insofar as the basic law is supposed to provide secondary rules, or decision procedures, for resolving disagreements concerning our primary rules for acting, including moral rights.

For Habermas, the awkwardness of morally criticizing basic law can be removed only if standards of moral justice are both universal and necessary for understanding why citizens obey the law because it is the right thing to do. In other words, it is not enough for citizens to obey the law because it is the law (which they respect unquestioningly, as a matter of fact); they must also obey it because it is morally just and nonoppressive. Yet, despite its connection to justice, Habermas warns against viewing law as a simple instantiation of (or derivation from) morality—the view he associates with natural law theory. Unlike moral norms, which command specific actions as a matter of duty, legal rights command nothing. Instead, they permit a range of protected actions. These actions can be motivated by selfish interests and can even produce consequences that are widely regarded as immoral. The connection between law and morality is therefore at most indirect; in most cases it is not statutory law but the democratic procedure by which it is made that most directly refers to justice" (Ingram 2010:161-163).

Ingram, David
2010 Habermas: Introduction and Analysis. Ithaca, NY: Cornell University Press.

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Habermas: Introduction and Analysis on Amazon.com

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The Philosophical Teaching of Law

07/05/2011 By Kelly Cooper

"If you were to imagine a pedagogy for the philosophical teaching of law, how would you conceive it?

I think one would have to proceed by concentric circles. I would show that the first encounter that we have with the law, as citizens, the first circle if you like is penal law. For justice encounters its contrary first in the thirst for vengeance, which is a powerful passion: justice consists in not seeking vengeance. Between the crime and the punishment, to return to well-known categories, lies justice and, consequently, the introduction of a third party. In the first instance, this is the state, obviously, since there is no law if there is no state, but it also implies the existence of a corpus of written laws; then an institution like the courts made up, in its turn, of those who are recruited for their competence and reputation for independence—the judges. State, written laws, courts, judges: this is what constitutes the exteriority of the first circle of the juridical. In addition, between the crime and the punishment, the operation of justice interposes a just distance by means of deliberation; it is in the trial that the distancing between the aggressor and the victim takes place, victim and aggressor who are not defined juridically until they stand as opposing sides in the same trial. They then become the plaintiff and the defendant; this change of status results from the very fact of the mediation by the juridical authority.

Philosophically, it is very interesting to see that the form of discourse employed in this area is argumentation. I have recently become interested in the relation between argumentation and interpretation….

The designation of the infraction, in juridical matters, involves an enormous work of interpretation. What is one to call this offense? Homicide by negligence? Involuntary homicide? One has to find the legal pigeonhole that corresponds to the list of features defining the offense; and often one has to invent the rule under which the case is to be placed.

On close examination, we see that there are, in fact, three interpretive moments. In the first place, what we call a case is, in reality, the interpretation of a story: someone tells what happened. And we know that there are always several ways to recount the same things. Secondly, in order to know what law to place the case, we must see in the panoply of laws the one that possesses a sort of presumed affinity with the case; consequently, there is a work of interpretation of the law as a function of the case; but also a work of presentation of the case as a function of its suitability to the law. Thirdly, the adjustment of one to the other—the mutual adjustment of the process of interpretation of the law and the process if interpretation of the fact—in short, the matching of these two interpretations with one another.

The case of the trivial is equally interesting philosophically from another point of view, because it allows us to address the current Habermasian problem of 'open discussion': how closely does the juridical approximate the model of open discussion, without limits or obstacles? We see right away that there is an unbridgeable distance between this model and the reality of the trial. For in a court no one is ever in a situation of infinite and open discussion. I see at least three constraints: first, the fact that the defendant is not present of his or her own free will; next, the fact that the parties do not speak whenever they feel like it, but each speaks in turn; finally, the fact that the decision takes place in a limited time and that the judges have an obligation to conclude the proceedings.

We are dealing with a very specific operation of rationality, which is, in a word, that of rhetoric. Provided, however, that the word 'rhetoric' is taken in its strong sense, as that which is most clearly distinguished from sophistry, and as involving the use of probably reasonings concerning matters of controversy. This is the stuff of a trial, with the assault of words and the competition of arguments. In a scale model, marked off by the rules of procedure, we have here a paradigmatic example of categories discussed in philosophy: deliberation and decision. It is truly astonishing that we fail to draw upon this resource in the teaching of philosophy.

Between moral rationality and the rationality of the state, so bound up with violence, this first juridical circle constitutes a region of intermediary rationality, in which the presupposition is precisely the break between discourse and violence to recall Eric Weil's famous opposition at the beginning of Logique de la philosophie; the trial is, in this regard, the privileged place for an ordered and ritualized discussion.

The second circle of the juridical is much wider. The trial—and in particular, the criminal trial—constitutes in reality only a segment of the law; it could be called the judiciary aspect of law. But the juridical is much broader; too often, because of excessive dramatization, it is as though everything hinged on imposing the sentence. But civil law is already in itself irreducible to criminal law; the obligation to repair damages is not equivalent to the obligation to submit to a punishment; from criminal to civil, there is already a significant broadening.

The notion of 'damage' should be placed within this second circle, which is that of contracts. For life in society is not based only on its conflicts but also on the giving of our word, on exchanges of words. And conflicts arise precisely when someone’s word is broken, when one party believes that the other has not kept the commitment made. Here we find ourselves in the vast domain of the mutual obligations which bind us to one another" (Ricoeur 1998:117-119).

Ricoeur, Paul
1998[1995] Critique & Conviction. Kathleen Blamey, trans. New York: Columbia University Press.

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Critique and Conviction at Amazon.com

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