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CommunicationTheoryandtheCritiqueoftheLaw:HabermasandUngeron
theLaw
CommunicationTheoryandtheCritiqueoftheLaw:HabermasandUngerontheLaw
byDavidRasmussen
Source:
PRAXISInternational(PRAXISInternational),issue:2/1988,pages:155170,onwww.ceeol.com.
THE LAW, CONSTITUTIONALISM,
COMMUNITY AND LIBERALISM
David M. Rasmussen
Two Paradigms
Hegel's fundamental assumption was that the law could be discussed in both
moral and rational terms. 1 Hence, his discourse on the law, Rechtsphilosophie,
provides an interesting point of departure for an introduction to recent debates
on the status of law in the context of philosophy, morality and legal practice. Hegel
conceived of the law in the context of a metaphysics of modernity, i.e. an attempt
to see in the developments of legal theory and practice of his time the category
ofjreedom, whose form was present at the beginning of civilization, dramatically
emerging in the modem period in individual and institutional form, as the principle
not only of individual rights but also as the foundation for the institutions of the
day.2 No doubt Hegel's philosophy of law can be read as a response to Hobbes'
earlier instrumental formulation where the sovereignty of institutions must be
conceived in opposition to the rights of individuals, a conception which led, in
the name of personal security to an understanding of the law under principles of
necessary coercion.
3
Hegel, having the luxury of being witness to institutional
developments which were only in their infancy at the time of Hobbes, could with
some assurance attempt to correct the fundamental errors in the Hobbesian instru-
mental formulation of legal theory. Hegel' s theory, departing from the conception
of law in the context of natural history, (Hobbes' states of nature to state of society
formulation), postulating instead the evolution of law in the concext of social history,
linked law with morality in the context of his conception of modernity. In his view,
freedom, whose early and profound moral formulation was developed in Greek
society and culture, would triumph in modernity in such a manner that even the
Greek formulation would pale by comparison. New forms of virtue would occur,
less substantial in Hegel's view to be sure than virtue in Ancient Greece, and these
too would be overcome by the principle of modernity, the way of the world. In
Hegel's view, Hobbes' instrumental formulation of law was only apparent, not
real. "The individuality of the 'way of the world' may well imagine that it acts
only for itself or in its own interest. It is better than it thinks, for its action is at
the same time an implicitly universal action.' '4 Hegel then provides a kind of
option in the modern theory of law, namely to rethink the history of law from
the long, historical perspective in order to overcome the dilemmas of more short-
sighted, naturalistic theories such as that of Hobbes. As a consequence we can see that
Hegel made a kind of wager, namely, to link his interpretation of the development
of law and morality with his understanding of modernity in order to overcome the
amoral and instrumental implications implicit in earlier, pre-modern formulations.
Praxis International 8:2 July 1988 02060-8448 $2.00
156 Praxis International
In the struggle between Tugend and WeltlaufHegel's strategy is foreshadowed.
Social contract theory with its notions of property, alienation and wrong conceived
under the category of right would re-emerge internalized at a higher level as
morality, while both would achieve their ultimate form as part of ethical life. Hegel
states: "Ethical life is the Idea of freedom in that on the one hand it is the good
become alive - the good endowed in self-consciousness with knowing and willing
and actualized by self-conscious action - while on the other hand self-consciousness
has in the ethical realm its absolute foundation and the end which actuates its effort.
Thus ethical life is the concept of freedom developed into the existing world and
the nature of self-consciousness."5 In ethical life, in the institutions of family,
civil society and the state, Hegel is not only able to overcome the forms of existing
law based on property and contract with their attendant instrumental formulation,
he is able to show how that non-instrumental form of the law is represented in
the predominant institutions of the day, the new economic society as well as the
modern form of the state.
That this solution, brilliant in its conceptualization if not in its actualization, would
meet with overwhelming criticism not long after its genesis suggests how super-
ficial it was. Marx, in Die Judenfrage
6
reacts almost with shock and amazement
upon discovering that the Hegelian formulation is nothing more than that, a formula-
tion. A closer examination, that is, closer than Hegel did, reveals not the evolution
of freedom but rather the legitimation of self-interest. Hence, the resolution of
the private interest articulated at the level of civil society and the public interest
present at the level of the state is not a resolution at all but rather a contradiction.
At the economic level in civil society the human being is reduced to its base interest
in survival while at the level of the citizen that being is supposed to act in an opposite
manner as if the interests of humanity were its own. Law, for its part, fails to
reach beyond the Hobbesian formulation, restricted as it is to purely instrumental
formulas as seen in various state constitutions from the United States as well as
in The Rights of Man which arose out of the French Revolution. Yet, Marx, for
all his criticism of Hegel, shares, in a peculiar way, the Hegelian premise, namely,
that there ought to be a relationship between law and morality which in modernity
would function for the advance of humankind. Hence, if Marx is skeptical of the
Hegelian solution it is only because what Hegel claimed as the achievement of
modernity, i.e., the realization of freedom in the institutions of modern society
as embodied in law, is something which can, in his judgment, be achieved only
with a serious transformation of the institutional forms of modernity.
Since the discourse about law inaugurated by Hegel and criticized by Marx,
legal theory has itself been transformed in such a manner that law has sought to
legitimate its foundations independently of questions of morality. The form of the
ensuing debate about the relationship of law to morality takes shape in a manner
not unlike the debate referred to above. The strategies for reconsidering the question
are certainly no less elaborate than those of Hegel, nor are they more radical than
those of Marx. In the following discussion I should like to consider two representa-
tives of the contemporary discourse on law, Jiirgen Habermas and Roberto Dnger.
In the case of the former an attempt is made to account for and criticize law as
it emerges out of The Theory of Communicative Action, 7 while the latter represents
an attempt to consider the function of law from a purely critical mode.
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Praxis International
Law and Action
157
One way of looking at Habermas' work on law is to compare it to that of Hegel.
Like Hegel, Habermas will attempt to overcome a previously conceived under-
standing of law as a separate enterprise. Like Hegel, Habermas will rely upon
the grand historical interpretation in order to reunite law with that from which
it has perceived itself to be differentiated. Like Hegel, Habermas will presuppose
a specific form of rationality which is implicit in the nature of legal procedure
in order to bring this program about, although that conception of rationality differs
somewhat from Hegel's. Finally, like Hegel, Habermas will develop a specific
interpretation of modernity in order to develop his "interpretative scheme. " Allow
me to begin with the smaller issue, the consideration of the relation of law to
morality, before turning to the larger issue of the relationship of law to the theory
of communicative action.
8
Law and Morality
If one were to read Max Weber's discourses on law quite carefully it would be
possible to come to a conclusion opposite to that of Hegel, namely, that as law
began to be separated from its origins in religious traditions it emancipated itself
from morality. As such, Weber's work on the law constitutes the negative case
for a discourse which will attempt to unite law and morality. Weber's rather massive
work on the law gave rise to a single question, namely, how is legal domination
in modern society possible? Since modern societies owe their origin to the rule
of law, what is it that legitimates such rule? Weber's "sociological" explanation
sought to show that as law differentiated itself from its religious foundations it
sought to free itself from questions of morality, seeking rather its legitimacy in
reference to itself, that is, on the basis of properties within the law itself. Law
became the exclusive realm of professionals. This professionalization of law had
its correlation in its formalization, i.e., a system of procedures which are known
to professionals only. In turn, legitimization was referable to the particular form
of rationality employed by professional jurists, a "value-free" rationality distinct
from morality. 9
To be sure, for this kind of analysis, Weber is something of an easy target. The
critique of Weber's philosophy of law becomes part and parcel of the critique of
"value-free" rationality which can be quite easily shown to mask rather than rise
above the interests of those who employ it. As Justice Holmes once pointed out,
every opinion tends to become a law. 10 Indeed, as we know now, law functions
in the interests of those who make it, as the Warren and the Burger courts have
shown.
Il
Yet, this unmasking does not lead to the proposition that law is a "sham"
because of its association with particular interests; rather, it leads to a judgment
about the association of law with morality. Habermas concludes, "the formal
qualities of law investigated by Weber could have made the legitimacy of legality
possible under specific social conditions only insofar as they were "rational" in
a moral-practical sense. "12 In turn, the conclusion leads to a very specific
criticism of Weber: "He falsely equates the procedural properties of a post-
conventional level of justification with substantive value orientations. Therefore,
he does not see that the model of the social contract ... can be understood as
158 Praxis International
proposing a procedure whose rationality is guaranteed by the correctness of whatever
decisions come about in a procedural manner. ' , 13
What Max Weber seems to have missed in his history of the reading of law
was the meaning of the concept of legal procedure. Ultimately, the question of
legal procedure cannot be isolated as a specific form of rationality when one
considers its relationship to moral-practical rationality in general. The generalization
which can be derived from this is the following: "legitimacy is possible on the
basis of legality insofar as the procedures for the production of norms are also
conducted reasonably in the sense of moral-practical procedural rationality.' '14 To
the extent that the latter is a form of rationality which distinctively characterizes
modernity, the foundation for the connection between lawand morality is established.
However, if the connection of law and morality has been suggested, the precise
place of procedure in relation to the development of law has yet to be articulated.
Again, it is an historical mode of analysis which provides the basis for the theoretical
assumption about the nature and status of law. Habermas wants to make the case
that in traditional societies the link between sacred and secular provides the "moment
of indisponibility," the necessary legitimation, for the law. As law developed,
the idea of natural law tended to take the place of the sacred as that which preserved
the moment of indisponibility legitimizing secular law. As natural law theories
broke down, that moment was preserved in reference to procedural rationality,
a reference which preserved the moment of disponibility present in the original
association between sacred and secular law by fmding the modalities for legitimation
outside the law itself. To the extent that the appeal to procedure yet remains in
positive law, that relationship between law and morality has been preserved. 15
Law and Communicative Action
One can now link the theory of the relationship of law and morality in Habermas'
thought with the theory of communicative action. If the link between law and
morality is to be found in adherence to procedures, it does not follow that procedures
have always been properly endorsed. In essence, the thesis about the relationship
between law and morality is as critical as it is constructive. I take it to be no accident
that The Tanner Lectures conclude by stating, "There is no autonomous law without
a realized democracy. ' '16 The statement can be read in two ways: either, because
there is evidence of democratic procedure in autonomous law there can be no
autonomous law without a realized democracy, or, because autonomous law lacks
evidence of democratic procedures there can be no autonomous law without a
realized democracy. 17 What Habermas has done is to provide us with a way of
looking at the law from developmental and contemporary perspectives which will
be both effectively critical while at the same time grounding its legitimacy.
One can put the above discussion in the context of communicative action by
appealing to the debate regarding juridification, i.e., the proliferation of processes
of legalization that have occurred in the modern, post-1600, period of social
history. 18 In systematic terms, the theory of communicative action, conceives of
social history under the double heading, system and lifeworld. The term' 'modernity"
signifies a de-coupling of the social system, economy and state, from the lifeworld,
Le., the ordinary world of lived experience. As social evolution becomes ever more
complex phenomena can be mediated either communicatively or instrumentally,
Praxis International 159
i.e., either through the lifeworld or under the imperatives of the sytem through
the media of money and power. In that process the lifeworld through which culture,
society and personality are mediated can either be expanded or colonized.. Habennas
has coined the phrase, "colonization of the lifeworld" to show how areas of social
life can be subject to new forms of domination and control under the rubrics of
an instrumental rather than a communicative rationality. When one wishes to look
at the development of modern society from the process of juridification one has
the options of either the colonization or, following from the final statement of The
Tanner Lectures, the democratization of the lifeworld. However, as areas of the
lifeworld which are communicatively structured are taken over by the imperatives
of the system the tool which enables this process to go forward can be said to
be juridification.
According to Habermas, following Kirchheimer, there were four waves of
juridification characterizing the bourgeois state, the constitutional state, the
democratic constitutional state and the welfare state, respectively. In the original
form, the Hobbesian state, the new subsystems of economy and state, "extract
what they need" from the "unspecific reservoir" of the lifeworld. This sets the
pattern for subsequent modes of juridification. Even though new freedoms are
granted, as in the democratic constitutional state when universal suffrage and the
right to organize parties was granted, juridification erodes lifeworld structures to
which it assumes a parasitic position. This is particularly true in the welfare state
where the state has the good intention of promoting social integration through
juridification, a certain "disintegration of life relations occurs when these are
separated through legalized social intervention, from the consensual mechanisms that
coordinate action and are transferred over to media like money and power." 19
The problem becomes one of law assuming the role of a steering medium through its
intervention into the lifeworld which robs modern life of its consensual component.
If one studies the paradoxical structure of juridification in such areas as the family,
the schools, social welfare policy, and the like, the meaning of the demands that
regularly result from these analyses is easy to decipher. The point is to protect areas
of life that are functionally dependent on social integration through values, norms
and consensus formation, to preserve them from falling prey to the systematic
imperatives of economic and administrative subsystems growing with dynamics of
their own, and to defend them from becoming converted over, through the steering
medium of the law, to a principle of sociation which is, for them, dysfunctional. 20
If I may combine the discussion of law and morality with that of juridification
we might conclude that, in modernity, law, originally part of social life, became
separated out under the imperatives of the system, to play the very ambiguous
role of simultaneously eroding lifeworld structures while providing at the same
time an anchor for new found freedoms.
21
Hence, although it might appear, as
it indeed did to Max Weber, that law in modern society played an increasingly
autonomous role, in actuality, law, which requires the lifeworld for its legitimation,
is indeed dependent upon those very structures of communication which, under
the imperatives of the steering mechanism, it attempts to mask. Hence, contrary
to Weber, "there is no autonomous law without a realized democracy." Here,
one might paraphrase Hegel' s discussion of the way of the world by saying that,
160 Praxis International
indeed, law is better than it appears, because its action is at one time instrumental
and communicative. Although, I will return to this point later, let it suffice here
to suggest that there is a certain "cunning of reason" in Habermas' interpretation
of the law which allows at the same time both an extremely critical reading and
an affirmation of its rational potential.
Law as Critique
Roberto Unger is somewhat more difficult to characterize than Habermas. If
anything, he is closer to Marx than Hegel in his attempt to develop a program
which is both critical of current legal traditions and at the same time founded in
an understanding of social theory. In discussing his early work later on in life
Marx would suggest what happened to his earlier concern with the law: "My inquiry
led me to the conclusion that neither legal relations nor political forms could be
comprehended whether by themselves or on the basis of a so-called general develop-
ment of the human mind, but that on the contrary they originate in the material
conditions of life, the totality of which Hegel, following the example of the
eighteenth century, embraces within the term 'civil society'; that the anatomy of
this civil society, however, has to be sought in political economy.' '22 This well-
known statement suggests what Marx thought about his early work on the law,
i.e., what the study of legal relations would lead to, namely, the repudiation of
law.
23
Having repudiated it in such a devastating fashion, the tradition which he
established would have difficulty reappropriating an approach to law which would
do something other than assume its arbitrariness. Law, in bourgeois society, would
appear under the guise of irrationality. Unger while remaining on the left has been
very careful to distinguish himself from Marx and the Marxist tradition. It would
be unfair of me to saddle him with the difficulties of that tradition from which
he finds himself in such ambiguous relationship. However, there is a sense in which
Unger's program so undermines and relativizes the law that the potentalities for
reconstruction are, not so much limited, but simply, vague. Yet, I hasten to point
out, the very suggestiveness of the position would render any conclusion premature.
Critique of Objectivism and Formalism
No doubt the critique of objectivism and formalism is analogous to the critique
of legal formalism that characterized Max Weber's analysis of law.
24
Formalism
refers to strict adherence to rules and procedures which are justified on the basis
of a certain view of the way things are, a view which is supposed to be objective
or according to those indulging in both legal practice and legal theory, true. If
it were only that simple. If there were only one version of formalism, if there
was only one perspective on the objectivism to which law referred as its legitimiza-
tion. But the references are legion.
25
Hence, one can say that both formalism and
objectivism rely on no one single formula, on no single theory, on no single set
of practices; rather reference is multiple. The result is that the foundation of law
is said to be contradictory and therefore false. The task ofRoberto Unger in particular
and Critical Legal Studies in general has been to make the contradictions within
the law manifest. Indeed, there is no recourse from the set of dilemmas made
manifest by this expose. If we take the case of the practical jurist or lawyer, since
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161
there is no coherent body of legal doctrine available, decisions in law tend to be
made an ad hoc basis, or, to put it bluntly, legal decisions are quickly instru-
mentallzed, rationalized in the arbitrary interest of legal professionals.
According to Unger, if one were to apply this insight to comtemporary schools
of law the dilemmas of objectivism and formalism can be made readily apparent.
In the case of the so-called law and economics school, "an abstract market idea
is identified with a specific version of the market ... with all its surrounding social
assumptions, real or imagined. "26 Inasmuch as it can be shown to be the case that
this is one assumption among many which compete for attention among con-
temporary ideas about social theory, the very relativity of this form of so-called
"objectivism" is exposed. The claims of the rights and principles school can be
similarly undermined. "It claims to discern in the leading ideas of the different
branches of law, especially when illuminated by a scrupulous, benevolent, and
well-prepared professional elite, the signs of an underlying moral order that can
serve as the basis for a system of more or less natural rights.' '27 This school is
said to alternate between two options: one assumes that there is a "moral consensus'
for legal theory, while the other maintains that "dominant legal principles count
as manifestations of a transcendant moral order." 28 There is a third position
which mediates between the prior two, incorporating a number of diverse strategies,
one minimizes the extent to which the law incorporates "conflict over desir-
able forms of human association", another assumes that dominant legal ideas
express higher moral insight, while a third strategy is to generalize moral truth
from particular legal doctrines, a strategy which is characterized by a method of
hypostatization.
One might call this the relativist expose, the discovery that there is no fundamental
foundation upon which legal theory rests, that each appeal to connect it with some
higher aim, some foundation beyond the generation itself, some concept of morality,
some concept of economic utilitarianism, falters on the very pluralism of competing
concepts of law and competing concepts of society. One is reminded of Hobbes'
comment on felicity: Hobbes reminds us that' 'the Felicity of this life, consisteth
not in the repose of a mind satisfied. For there is no such Finis ultimus, (utmost
ayme,) nor Summum Bonum, (greatest Good,) as is spoken of in the Books of the
old Morall Philosophers. "29 Indeed, Dnger seeks to show because of the false
idealisms and inept realisms of the various legal schools the claim to link law to
some form of justification beyond it is for nought. Hence, one could surmise that
in Unger one finds a kind of repetition of the Hobbesian undermining of Aristotelian
and Christian understandings of society in the paradigm of relativistic pluralislTI
which he puts forth. Yet, as is known by those who have read Hobbes, the very
attempt to wipe the slate clean by exposing the falsities of prior theories can result
in the Herculean attempt to establish the validity of one's own. As Max Weber
found out, the critique of the irrational rationality of modern society can lead to
the rather abject confinement in one's own' 'iron cage." Unger assumes, as his
own, the task of leading us out of this mire of what I have called relativistic pluralism
to what optimistically may be called, greener pastures, the name for which is yet
wanting.
Unger claims that in both the rights and principles and the law and economics
schools we see the enterprise of "nineteenth century legal science," to be sure
162 Praxis International
in a somewhat "watered down" state. This endeavor in turn presumed a "version
of the more common, conservative social doctrines that preceded the emergence of
modern social theory.' '30 What presumably exists behind these theories is a
certain reliance on an assumed "natural fonn of society" with its attendant anthropo-
logical assumptions providing the fundamental but unjustifiable ingredient from
which legal theory must be exorcised. The dual task of critique and construction
must spring from this insight. On the one hand, a revelatory emphasis upon the
deep commitments of legal theory to social and naturalistic assumptions will expose
these ideas for that they are, remnants of a metaphysical universe which we as
late-twentieth century human beings no longer habituate. On the other hand, if
we are to experience freedom from the falsities of legal theory and practice, Unger
must construct the kind of social and anthropological theory which compels our
allegiance.
Unger does this by the construction of "deviationist doctrine, " a methodology
which is simultaneously critical and constructive incorporating a number of
strategies. Essentially, there are two models of deviationist doctrine, horizontal
and vertical, each following distinct procedures. The first model, the horizontal
version, begins with a concrete examination of a particular branch of law. It exposes
undisclosed assumptions implicit in that particular area. Subsequently, it considers
alternative forms of social life which can be "independently justified. " "Finally,
the model shows how this programmatic conception can serve as a regulative ideal
for the development of current doctrine. ' '31 In other words, the task of critique
leads to the construction of counter-factual theories which presumably offer
alternatives to current understandings. The second, the vertical model, works
somewhat differently by conceiving of fields of law as expressions of principles
and counter-principles which can be shown to be "contradictory". "The counter-
vision worked out through the analysis ofthese foci ofcontroversy brings a changed
understanding of the relation between counter principles and principles. ' '32 After
this it may be integrated into a larger view of legal theory resulting in its application
to other branches of law resulting in the explication of "larger justifications and
implications' , .
Both models can be said to work from the empirical to the normative, from
"authoritive rules and precedents," to "organizing principles and counter prin-
ciples" , to imaginative schemes of social life that assign distinct models of human
association to different sectors of social practice. ' '33 Both methods expose inconsis-
tencies and conflicts that exist at the various levels. "Conventional legal doctrine, and
the legal theories that propose to refine it the better to support it, try to suppress or
minimil e both the horizontal and the vertical conflicts. Deviationist doctrine, on the
contrary, attempts to bring these instabilities to the surface: first, because this is the
form subversion takes in the domain of legal ideas, and second, because if insight
andjustification can be achieved at all in legal doctrine or any other field of nonnative
argument, they can be achieved only through the repeated practice of such subversion,
under its double aspect of internal development and visionary thought. 34 One con-
cludes that "deviationist doctrine' , leads to an exposure and contiguous repudiation
of the alternatives offered by the assumptions of the market and democracy. And
having repudiated these assumptions the position relies upon' 'visionary thought"
to provide the alternatives found so sorely wanting in the contemporary world.
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Following Unger, one of the so-called broader implications of Critical Legal
Studies is repudiation of the modernist experience. "According to the modernists,
freedom requires, indeed represents a struggle against arbitrary compulsion. Yet
if the central tradition of modernism is to be believed, nothing lies beyond blind
constraint - beyond the repetitious and obsessional element both personal and
collective life - but a confrontation with the empty and anguished sense of freedom
itself. " 35 This struggle against arbitrary compulsion drives one in either of two
different directions - toward Aristotle or Existentialism. In the case of the former,
the "struggle against arbitrary constraints" is legitimated in terms of an unjustifiable
appeal to an "objective ideal" which defies the experiences which gave rise to
the modernist problem. In the case of the latter, existentialism, there is nothing
other than the "pure negative experience of freedom itself". "Freedom, to be
real, (says Unger) must exist in lasting social practices and institutions; it cannot
merely exhaust itself in temporary acts of context smashing.' '36
As it is necessary to reject the modernist experience and the forms responsive
to it, it is necessary to reject more contemporary forms of social theory such as
Marxism and various forms of pluralism because in one way or another both, it
is said, rely on a certain' 'metastructure of history or society that can serve as
a source of lawlike generalizations. "37 As a consequence of these failings, Unger
sees himself and his colleagues involved in a double strategy, the first involved
in the political subversion of the legal process through the critical procedures outlined
above, the second related to the development of "visionary thought," presumably
the setting forth of alternatives to contemporary historical structure and theory.
Unger, having repudiated law, turns toward the "visionary" side of his endeavor,
the reconstruction of social theory. Here he takes the idea of society as artifact,
an idea as old as modern thought itself, and "pushes it to the hilt" in order to
work out a totally contingent view of society. Central to this is an idea of' 'radically
anti-naturalistic social theory" which will undermine other modern forms of social
theory which still have within them elements of a natural view of the origin and
development of society. Implicit within this view is the critique of "false necessity",
the idea that certain characteristics of society have some necessary basis and
foundation.
This latter work on social theory may seem distant from earlier preoccupations
with the law inasmuch as a consideration of law is almost completely absent from
the later work. However, it is not difficult to understand why Unger has embarked
on this ambitious project of re-thinking social theory. Having more or less repudiated
law as a relativistic project evolving as a rationalization of disguised motivations
of interested parties whose rationality was totally arbitrary, it is necessary to find
in fields independent of law some justification for nonnative categories under which
positions on the law may be adjudicated. Allow me to return to the point where
I began. Marx, having found the law contradictory, inadequate, expressive of
illegitimate interests, looked for other modes of explanation which he found in
political economy. Had he ever returned to a consideration of the law, and there
is some evidence that he did so intend, he may very well have found himself in
a situation similar to that of Unger. Apparently, Unger, can only explain the
relationship of law and society, of law and categories of normativity, through the
invention of a radical alternative which has its origin in his own apocalyptic
164 Praxis International
vision of the way things should be. In the nineteenth chapter of the twenty-first
book of The City ofGod, Augustine made a similar critique of classical civilization.
His solution, however, was membership in the divine city. Alas, the luxury of
that alternative is no longer given. Is it not the case that Unger has given us one
more representation of the split between relativism and utopianism, devoid of
rationality?
The Debate over Normativity
If we were to conceive of a kind of debate between the theory of communicative
action represented by Habermas and Critical Legal Studies as represented by Unger
we could imagine the subject of that debate centering on the derivation of norms.
One need only be reminded that on the Habermasian side the task was to seek
in the history of law its original relation to morality in the moment of indisponibility
which was indeed obscured by various forms of legal formalism, and therefore
misunderstood by Weber, but nonetheless there. Hence, procedures regarding
justification associated with the original formulation of the social contract, appear-
ing to be instrumental, in fact contain that undisclosed remnant of an association
between law and morality which might be redeemed by an investigation into the
characteristics of a procedural rationality which has its foundation in the modern
development of practical reason. It is possible then to arrive at a conclusion regarding
normativity and the law. Inasmuch as the rational kernel in the historical develop-
ment of the law can be found in the discovery of certain procedures, one can suggest
the road which the law must follow in order to be redeemed from formalism and
the instrumental association suggested by that alliance. Indeed, the processes of
juridification may appear to be mainly systemic, and therefore purely instrumental
and arbitrary, yet within that modern process a minimum form of rationality must
be found.
No doubt Unger's response to this relatively detailed program would be both
skeptical and critical inasmuch as his argument relies on the observation that there
is no rational element in the procedural adjudication of legal processes. Because,
as "deviationist doctrine" can demonstrate, there is no method of justification which
yields a determinate procedure, there is no immanent moral rationality upon which
legal thought and process may rest its case. In fact, if we follow the procedures
of deviationist doctrine we will end up with the exposure of a series of direct and
distinct contradictions. One might conclude that legal reasoning is nothing other
than a form of political rhetoric. As such, arguments over the nature of law are
nothing other than ideological disputes which must be exposed by the deviationist
methodology Unger has proposed. Dnger, presumably, would want to unmask
the Habermasian program as hopelessly naive, finding a form of rationality where
only politics and ideology exist. But Unger is not a total deconstructionist. He
definitely wishes to relate his understanding of the law to a form of normativity
which one may only assume would arise from the "visionary" side of the enterprise.
Here Habermas would find Dnger hopelessly naive, inasmuch as, there is no
empirical foundation, no scientific basis, on which such an enterprise can proceed.
Hence, great contradiction arises in Unger' s version of Critical Legal Studies. Having
so radically criticized all law as without foundation, how will it be possible to
distinguish a version of social theory from which legal theory and practice can be
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extricated as anything other than politics and ideology? In a sense, Unger has entered
into a kind of rationality debate, only to find himself without a basis to substantiate
claims. Questions emerge. If there are no normative standards which can be elicited
from the study of law, whence are normative standards derived? Is it possible to
develop criteria for the development of certain normative standards which we can
establish as true in a consensual sense? By turning toward the visionary, Unger
can only make an intuitive appeal regarding what is "true" and "false," or so
someone inspired by the theory of communicative action might think. Unger might
respond to this attack by simply showing that proceduralism itself is a sham.
The Case of Legal Formality
The debate between the two positions can be pursued and specified further by
reference to an argument against legal formality by one of Unger's colleagues,
Duncan Kennedy.38 Kennedy's purpose "is to clarify that version of the liberal
theory of justice which asserts that justice consists in the impartial application of
rules deriving their legitimacy from the prior consent of those subject to them.' '39
By raising the question of legal formality in this way one can raise the question
of the precise relationship between the legislature which makes the rules in the
democratic legal state and the judge who applies them. Legal formality under the
conditions of the liberal, contractarian state assumes that a judge can legitimately
conceive himself as the rule applier, one who can exercise the application of rules
in cases presented by disputing parties. This process, the derivation and application
of rules, is said to be the embodiment of "formal" as opposed to "substantive"
rationality by which the modern state can eliminate conflict. The rules are said
to be arrived at through a process of legislative mediation of' 'substantive-rational"
interests. However, the assumption is that once arrived at, they can be formally
applied. Kennedy wants to make the case that rules when applied lose their claim
to be just inasmuch as they are derived from that which the legislature can provide,
merely, an "acceptable compromise." In turn, the duty to submit to the rule is
not derived from its inherent content as just, which it is not, but merely from its
legitimacy derived from the body of rules as a whole. Hence, the following
conclusion is possible: "The process of rule application itself has nothing to do
with "justice" or "right. "40 It does have to do with the implementation of the
interests of the state which has derived the rule and the autonomy of the individual
who under that system of rules is granted and guaranteed autonomy. Rules and
adherence thereto not only add to the autonomy of the individual but also restrain
autonomy in order to prevent harm to others. One should add that although the
derivation of rules which are the result of a compromise and are neither just in
their derivation nor in their application, the category under which the rules are
conceived and under which the judge applies the distributive justice. The idea behind
the application of the rule is that distributive justice, which has been attended to
in the legislature's working out of the rule, can be applied mechanically through
the application of the rule.
So much for legal formality in theory; in practice the case is somewhat different.
In actual litigation, rules which are the result of compromise are, in fact, tested.
The rule represents a kind of original agreement. The judge's problem will be
to apply this compromise to a situation in which there again emerge conflicting
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interests. The litigant, to whom the rule if applied would have an adverse effect,
will attempt to persuade the judge to dispense with the rule. "The litigant thus
appears to be proposing that the judge forsake the secure and stable occupation
of rule application for the obviously dangerous job of substantively rational arbiter
of disputes about a constantly changing pattern of distributive justice and injustice."
One could wait, of course, for the legislature to develop new rules to changing
circumstances, which is, in fact, what occurs in a changing world, but that really
does not resolve the dilemma existing between the formulation of the rule and its
application. The judge in the process of application has to move beyond the realm
of legal formality in one way or another given the discrepancy between rule and
application. In Kennedy's view, this raises a "moral" objection. "Thejudge cannot
claim that legislative acquiescence legitimizes his action because he himselfcreates,
through his decision ofparticular cases, the situation from which will emerge an
as yet indeterminate constellation of legislative power. ' '41
If one might pause for a moment to reflect on this critique of legal formality
based on the distinction between legislative rule construction and judicial rule
application one could find a fundamental similarity between the critical procedures
of the theory of communicative action and Critical Legal Studies. The fundamental
flaw in legal formality is that it cannot restrict itself to its own narrowly formal
definition. Hence, the judge, in the application of the rule must reach beyond the
realm of the given rule in light of the present situation in order to make a judgment
which, one could surmise, has a substantively rational character. For both positions
this practical dilemma points to the fatal flaw in legal formalism. The theory of
communicative action might conclude that this is precisely an instance of the case
where the link between law and morality which formalism had fought so valiantly
to sever is to be established. Critical Legal Studies will want to claim, as it later
did, that the indeterminacy thesis regarding law can be established with this example.
However, the real difference that separates the positions can also be derived from
this example. Critical Legal Studies will not want to make the claim that this practical
instance provides an illustration for the joining of law and morality. This will instead
be taken as another instance of the arbitrariness of the law.
Allow me to return to Kennedy's argument. "The flaw in the logic offormality"
is derived from this peculiar ambiguity in rule application. "The rule applier both
implements the compromise by which the community legitimately disposes of the
problem of distributive justice and provides a highly certain framework for private
maximizing activity.' '42 This is taken to mean that the possibility is created that
"the rules will overthrow rather than execute the original compromise." This,
in turn, makes it possible for the judge to "at least consider the possibility that
he should disregard the rule and examine the question of distributive justice. ' '43
Equally, the judge could attempt to "return to formal rule application with the single
purpose of securing the certainty of the framework for private maximizing. "44
In other words, theoretically the judge could return to the legislature. But this
possibility is only theoretical inasmuch as, according to Kennedy's definition of
the rule as a representation of compromise, it already has a certain ambiguity written
into it when made the basis for a practical decision. Hence, appeal to the legislature
is no sure resolution. If the rule appears to the judge as unfair, "Loyalty to the
rule is a decision for a particular political outcome; disregard of the rule threatens
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the very mechanism of order through compromise.' '45 So, one can conclude that
the application of the rule is a kind of roulette game in which the judge is damned
if she does and damned if she doesn't. "All laws are gambling contracts, as Hobbes
saw long ago. Alflaws pose the judge and litigant the question whether they should
accept a conception of the administration of justice as a mechanism for the collection
of resulting debts. It makes no sense to expect that yet one more gamble - a gamble
on gambling - will make the problem go away.' '46
To summarize Kennedy's position, the ambiguity which arises between the
legislative generation of rules and their judicial application suggests that, in the
case of judicial application the judge has a series of alternatives which are equally
available to her. She can attempt to rely on pure formalism. This may not work
and probably will not work but it willnot prevent her from attempting to do so.
She can dispense with the rule altogether and decide directly on the merits of the
case. She can work out some compromise, which is more likely to be the case,
between extreme formalism at one end of the spectrum and reliance on substantively
rational issues on the other. I should like to derive two hypothetical readings from
this position, one would favor Critical Legal Studies while the other would favor
the theory of communicative action. In the first reading, since the judge has at
her disposal a series of alternatives, none of which is a necessary one, her decision
is likely to be arbitrary, the consequence of a series of irrational variables which
happen to affect her decision. If this is the case then there really is no difference
between law and ideology, law and politics. Further, if there is to be an association
between law and politics it would be necessary to develop a theory of law from
an entirely different perspective (Unger's alternative). I do not regard this last
generalization as a necessary one. One could just as well argue that in modern
post-Hobbesian society there neither is nor can be an association between law and
morality. In the second reading, the one inspired by the theory of communicative
action, the series of alternatives available to the judge would be seen as anything
but arbitrary. One could develop the kind of thesis which suggests that the very
attempt to adhere to the principles of legal formality breaks the bonds of legal
formality leading to the introduction of issues of substantive rationality. Here, when
the judge attempts to apply the formal rule, the practical circumstance of litigation
forces a redefinition of the rule to meet the practical situation. In order to do that
it is necessary for the judge to exercise a practical judgment derived from experience
outside the process of the purely formal application of rules. Hence, as a necessary
result of rule application, issues of substantive or moral-practical rationality are
involved.
Conclusion
In part the answer to the fundamental question regarding which reading is the
correct one is dependent upon the actuality of the case. However, the data which
determine the outcome are not "raw" data. In the realm of interpretation skep-
ticism is indeed an option. In the Marxist scenario, the radical critique to which
Critical Legal Studies subjects the law results in an attempt to reinvest the relationship
between law and morality and society. One is offered the dualistic opportunity
of being a skeptic at one moment and a believer at another. In the Hegelian scenario,
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the course of the world is better than it thinks. What appears to the skeptical eye
as the cold and calculating instrumentality, under the subtle gaze of the "cunning
of reason", is, in actuality, reason coming into its own. If the theory of communica-
tive action can anchor successfully the development of law in the procedures of
practical-moral rationality it may be able to reach its goal of uniting autonomous
law with realized democracy. In that case law would indeed be better than it thinks.
NOTES
1. With Hegel the modern discussion of the place of law in relationship to morality begins. Law
can neither be subsumed under the category of morality nor can it be totally separated from it. Instead,
one must demonstrate the relationship of law to morality and, by implication, reason.
2. This way of conceiving law in relationship to reason and morality is distinctively modern
inasmuch as it assumes that law has been differentiated from ethics and morality. I take this to be
the significance of Hegel's beginning with positive law and turning to morality as a second moment.
This suggests a distinctively modern problem, namely, the practical demonstration of the relationship
of morality to law.
3. See Hobbes' Leviathan (Harmondsworth, 1651), Chapter 11.
4. G. W. F. Hegel, The Phenomenology of Spirit (Oxford), 235.
5. Hegel, The Philosophy of Right (Oxford, 1942), # 142, 105.
6. Karl Marx, "On the Jewish Question," in The Marx-Engels Reader, ed. Robert Tucker
(New York, 1972).
7. Jiirgen Habermas, Theorie des KOmltlUnikativen Handeln, Vol. 1& II (Frankfurt, 1981), Trans.
Thomas McCarthy, The Theory ofComlnunicative Action, Vol. I (Boston, 1984). Vol. 11 forthcoming.
8. My point is that Habermas takes a Hegel-like approach using a number of techniques that
originated with Hegel. However, I should like to make clear that I do not identify Habermas with
Hegel. For example, Habermas modifies Hegel' s historical interpretation to be something like a
venture in "reconstructive science". Further, although Habermas uses the concept of rationality
to associate law and morality, his concept of rationality is based on language, not consciousness.
Finally, although he depends on a concept of modernity to develop his concepts of law and morality,
Habermas distinguishes between the concepts of conventional and post-conventional morality while
Hegel does not.
9. Habermas, interpreting Weber states: "Legal domination acquires a rational character in that,
among other things, belief in the legality of the enacted regulations and the competence of ruling
authorities has a different quality than belief in tradition or charisma: it is the rationality intrinsic
to the form of law itself that secures the legitimacy of domination exercised in legal forms " Jiirgen,
Habermas "Law and Morality: Two Lectures." To be published as The Tanner Lectures ( 1986),
1. (Italics mine).
10. Holmes was one of the first to challenge legal positivism by pointing out that what appeared
to be a sanctioning of positive principles was simply an appeal to popular economic theory. His
dissenting opinion in Lochner vs. New York makes the case in point.
11. Different courts can be said to reflect different orientations and opinions as such.
12. Habermas, The Tanner Lectures, 10.
13. Habermas, The Tanner Lectures, 11. Here, both Weber's analysis and the critique thereof
focus on a specific form of legal theory, namely legal positivism. The critique reflects an extension
of the notion of "formal pragmatics" which Habermas has worked out elsewhere. In principle,
the concept of procedure presumes an implicit appeal to a certain form of rationality. Here, this
notion is extended to account for legal procedure.
14. Haberrnas, The Tanner Lectures, 14.
15. This is a sociological reading of the history of law which Habermas presents as an alternative
to Weber's reading. This reading attempts to find in the social history of law a moment where the
legitimation of law requires something more than instrumental authority. In a so-called religious
society law could be conceived to be legitimated on the basis of an appeal to a sacred text which
existed beyond the immediate authority of a particular lawmaker to which that lawmaker appealed for
Praxis International 169
legitimation. As law becomes more and more secular the sacred foundation of law would, according
to this reading be transformed but not necessarily obliterated. Hence, the movement to natural law,
the subsequent break-down of natural law traditions and the formalization of legal procedure represent
not the destruction but rather the preservation of that original moment inasmuch as the guarantee
of appropriate procedure cannot be sustained by a reading of law itself but must come from an appeal
to a rationality existing outside the law itself.
16. Habermas, The Tanner Lectures, 34.
17. No matter which way one reads this statement the link between law and moral ity is established
theoretically.
18. The discussion of juridification (Verrechtlichung) documents the final and certainly one of
the most important claims of The Theory of Communicative Action, namely, that with the development
of modern societies there is a tendency to colonize lifeworld experience. The proliferation of law
in Dlodern society tends to illustrate how areas left to customary modes of organization are taken
over by the modern state through processes of legalization.
19. Habermas, The Theory of Communicative Action, Vol. 2, 516.
20. Habermas, The Theory of Communicative Action, 553.
21. I realize that I am taking a somewhat more positive stand on juridification than Habermas
does in the second volume of The Theory of Communicative Action. My hermeneutic assumption
is the following: if one is to correlate the reading of juridification with the position developed in
The Tanner Lectures it would follow that juridification would have its positive as well as its negative
meaning. In that sense, juridification would point beyond itself to the underlying link between law
and morality which in the context of instrumental reason would remain undisclosed.
22. Karl Marx, Contribu.tion to the Critique oj Political Economy (New York, 1970),20.
23. Marx, had not only a profound interest in law as is represented by his choice of subject matter
for his dissertation, Begel's Rechtsphilosophie and his reflections on Bruno Bauer's, Die Judenjrage,
in the early 1840's, he had, as those texts illustrate, a superb understanding of law as well. However,
by the mid-l 840s he had practically given up all interest in legal questions having made the discovery
that economic questions retained a certain priority. Hence the older Marx, the Marx of the 1870' s,
was able to write The Critique o/the Gotha Program, which recommended the dictatorship of the
proletariat, a recommendation which is both tantamount to the repudiation of legal and democratic
traditions and representative of a certain forgetfulness of that learned earlier in life.
24. There is some discussion of the precise relationship of the critical legal studies movement
to legal formalism and legal positivism which were in their heyday at the turn of the century and
later. The critique outlined by the critical legal studies movement was anticipated by legal realism.
However, one must conclude that legal realism never succeeded in undermining legal formalism.
Hence, the analogy to Weber's critique is more than accidental.
25. Here, I am anticipating the critique made by Roberto Unger in his monograph entitled, The
Critical Legal Studies Movement (Cambridge, 1983). Although I will concentrate on this text, Unger' s
lnore constructive and prophetic work is in MW and Modern Society and Knowledge and Politics,
both published by The Free Press in 1975 and 1976 respectively. I have also consulted his, as yet
unpublished, manuscripts on social theory and politics.
26. Unger, Critical Legal Studies Movernenf, 12.
27. Unger, Critical Legal Studies Movement, 13.
28. Unger, Critical Legal Studies Movement, 13.
29. Thomas Hobbes, Leviathan 160. The reference to Hobbes is not merely incidental. In n10dern
social and political thought he represents the paradigmatic case of what I have called the relativist
expose. Having instrumentalized all rational procedures his theory requires an appeal beyond reason
to power for its actualization. I am not suggesting that Unger follows the same line exactly. However,
I am suggesting that this very critique tends to place the critic in the rather awkward position of
searching for a rational argument sufficiently persuasive to lead one out of the mire of relativism.
30. Unger, Critical Legal Studies Movement, 14.
31. Unger, Critical Legal Studies Movement, 88. (Italics mine).
32. Unger, Critical Legal Studies Movement, 88. (Italics mine).
33. Unger, Critical Legal Studies Movement, 89. (Italics mine).
34. Unger, Critical Legal Studies Movement, 89. (Italics mine).
35. Unger, Critical Legal Studies Movement, 103.
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36. Dnger, Critical Legal Studies Movement, 104.
37. Unger, Critical Legal Studies Movement, 106.
38. By introducing this early argument from Kennedy I am not attempting to identify Kennedy's
position with that of Unger. Inasmuch as the critical legal studies movement is in its second decade
of development there are now a variety of positions. Kennedy's position is much more skeptical
than Unger's. His argument agrees with Dnger on the critical side but it does not follow Unger's
prophetic or visionary approach to the development of law and social theory. Kennedy, if anything,
would want to see law as an instrument of social policy. My reason for choosing this particular
argument from Kennedy is that it allows one to illustrate a classic procedure of the critical legal
studies school. That, in turn, will allow me to be more concrete about representative positions.
39. "Legal Formality". The Journal of Legal Studies. Vol. 2. 1973. p. 370.
40. Kennedy, "Legal Formality," 370. '
41. Kennedy, "Legal Formality," 385.
42. Kennedy, "Legal Formality," 387.
43. Kennedy, "Legal Formality," 387.
44. Kennedy, "Legal Formality," 388.
45. Kennedy, "Legal Formality," 389.
46. Kennedy, "Legal Formality," 389.