2.3 - Rasmussen, David - Communication Theory and the Critique of the Law. Habermas and Unger on the...

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Communication Theory and the Critique of the Law: Habermas and Unger onthe Law

Communication Theory and the Critique of the Law: Habermas and Unger on the Law

by David Rasmussen

Source:

PRAXIS International (PRAXIS International), issue: 2 / 1988, pages: 155-170, on www.ceeol.com.
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THE LAW, CONSTITUTIONALISM,COMMUNITY AND LIBERALISM

David M. RasmussenTwo ParadigmsHegel's fundamental assumption was that the law could be discussed in bothmoral and rational terms. 1 Hence, his discourse on the law, Rechtsphilosophie,

provides an interesting point of departure for an introduction to recent debateson the status of law in the context of philosophy, morality and legal practice. Hegelconceived of the law in the context of a metaphysics ofmodernity, i.e. an attemptto see in the developments of legal theory and practice of his time the categoryofjreedom, whose form was present at the beginning of civilization, dramaticallyemerging in the modem period in individual and institutional form, as the principlenot only of individual rights but also as the foundation for the institutions of theday.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 beconceived in opposition to the rights of individuals, a conception which led, inthe name of personal security to an understanding of the law under principles ofnecessary coercion. 3 Hegel, having the luxury of being witness to institutionaldevelopments which were only in their infancy at the time of Hobbes, could withsome assurance attempt to correct the fundamental errors in the Hobbesian instrumental formulation of legal theory. Hegel's theory, departing from the conceptionof law in the context of natural history, (Hobbes' states of nature to state of societyformulation), postulating instead the evolution of law in the concext of social history,linked law with morality in the context of his conception ofmodernity. In his view,freedom, whose early and profound moral formulation was developed in Greeksociety and culture, would triumph in modernity in such a manner that even theGreek 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 thesetoo would be overcome by the principle of modernity, the way of the world. InHegel's view, Hobbes' instrumental formulation of law was only apparent, notreal. "The individuality of the 'way of the world' may well imagine that it actsonly for itselfor in its own interest. It is better than it thinks, for its action is atthe same time an implicitly universal action. ' '4 Hegel then provides a kind ofoption in the modern theory of law, namely to rethink the history of law fromthe long, historical perspective in order to overcome the dilemmas ofmore shortsighted, naturalistic theories such as that ofHobbes. As a consequencewe can see thatHegel made a kind ofwager, namely, to link his interpretation of the developmentof law and morality with his understanding ofmodernity in order to overcome theamoral and instrumental implications implicit in earlier, pre-modern formulations.Praxis International 8:2 July 1988 02060-8448 $2.00


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156 Praxis InternationalIn 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 asmorality, while both would achieve their ultimate form as part of ethical life . Hegelstates: "Ethical life is the Idea of freedom in that on the one hand it is the goodbecome alive - the good endowed in self-consciousness with knowing and willingand actualized by self-conscious action - while on the other hand self-consciousnesshas 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 andthe 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 existinglaw 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 inthe predominant institutions of the day, the new economic society as well as themodern 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 superficial it was. Marx, in Die Judenfrage 6 reacts almost with shock and amazementupon discovering that the Hegelian formulation is nothing more than that, a formulation. A closer examination, that is, closer than Hegel did, reveals not the evolutionof freedom but rather the legitimation of self-interest. Hence, the resolution ofthe private interest articulated at the level of civil society and the public interestpresent 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 interestin survival while at the level of the citizen that being is supposed to act in an oppositemanner as if the interests of humanity were its own. Law, for its part, fails toreach beyond the Hobbesian formulation, restricted as it is to purely instrumentalformulas as seen in various state constitutions from the United States as well asin The Rights of Man which arose out of the French Revolution. Yet, Marx, forall his criticism ofHegel, shares, in a peculiarway, the Hegelian premise, namely,that there ought to be a relationship between law and morality which in modernitywould function for the advance of humankind. Hence, ifMarx is skeptical of theHegelian solution it is only because what Hegel claimed as the achievement ofmodernity, i.e., the realization of freedom in the institutions of modern societyas embodied in law, is something which can, in his judgment, be achieved onlywith 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 tolegitimate its foundations independently of questions ofmorality. The form of theensuing debate about the relationship of law to morality takes shape in a mannernot unlike the debate referred to above. The strategies for reconsidering the questionare certainly no less elaborate than those ofHegel, nor are they more radical thanthose ofMarx. In the following discussion I should like to consider two representatives 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 asit emerges out of The Theory ofCommunicative Action, 7 while the latter representsan attempt to consider the function of law from a purely critical mode.


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Praxis InternationalLaw and C O ] m n [ } U l l l c ~ l t l ' 7 e Action

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One way of looking at Habermas' work on law is to compare it to that ofHegel.Like Hegel, Habermas will attempt to overcome a previously conceived understanding of law as a separate enterprise. Like Hegel, Habermas will rely uponthe grand historical interpretation in order to reunite law with that from whichit has perceived itself to be differentiated. Like Hegel, Habermas will presupposea specific form of rationality which is implicit in the nature of legal procedurein order to bring this program about, although that conception of rationality differssomewhat from Hegel's. Finally, like Hegel, Habermas will develop a specificinterpretation ofmodernity in order to develop his "interpretative scheme. " Allowme to begin with the smaller issue, the consideration of the relation of law tomorality, before turning to the larger issue of the relationship of law to the theoryof communicative action. 8Law and MoralityIf one were to read MaxWeber's discourses on law quite carefully it would bepossible 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 itselffrom morality. As such, Weber's work on the law constitutes the negative casefor a discourse which will attempt to unite law and morality. Weber's rather massivework on the law gave rise to a single question, namely, how is legal dominationin modern society possible? Since modern societies owe their origin to the ruleof law, what is it that legitimates such rule? Weber's "sociological" explanationsought to show that as law differentiated itself from its religious foundations itsought to free itself from questions of morality, seeking rather its legitimacy inreference to itself, that is, on the basis of properties within the law itself. Lawbecame the exclusive realm of professionals. This professionalization of law hadits correlation in its formalization, i.e., a system of procedures which are knownto professionals only. In turn, legitimization was referable to the particular formof rationality employed by professional jurists, a "value-free" rationality distinctfrom morality. 9To be sure, for this kind of analysis, Weber is something of an easy target. Thecritique ofWeber'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 riseabove 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 haveshown. I l 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 judgmentabout the association of law with morality. Habermas concludes, "the formalqualities of law investigated by Weber could have made the legitimacy of legalitypossible under specific social conditions only insofar as they were "rational" ina moral-practical sense. "12 In turn, the conclusion leads to a very specificcriticism of Weber: "He falsely equates the procedural properties of a postconventional level of justification with substantive value orientations. Therefore,he does not see that the model of the social contract . . . can be understood as


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158 Praxis Internationalproposing a procedure whose rationality is guaranteed by the correctness ofwhateverdecisions come about in a procedural manner. ' , 13What Max Weber seems to have missed in his history of the reading of lawwas the meaning of the concept of legal procedure. Ultimately, the question oflegal procedure cannot be isolated as a specific form of rationality when oneconsiders its relationship to moral-practical rationality in general. The generalizationwhich can be derived from this is the following: "legitimacy is possible on thebasis of legality insofar as the procedures for the production of norms are alsoconducted reasonably in the sense of moral-practical procedural rationality.' '1 4 Tothe extent that the latter is a form of rationality which distinctively characterizesmodernity, the foundation for the connection between law andmorality is established.However, if the connection of law and morality has been suggested, the preciseplace 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 theoreticalassumption about the nature and status of law. Habermas wants to make the casethat in traditional societies the link between sacred and secular provides the "momentof 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 preservedthe moment of indisponibility legitimizing secular law. As natural law theoriesbroke down, that moment was preserved in reference to procedural rationality,a reference which preserved the moment of disponibility present in the originalassociation between sacred and secular law by fmding the modalities for legitimationoutside the law itself. To the extent that the appeal to procedure yet remains inpositive law, that relationship between law and morality has been preserved. 15Law and Communicative ActionOne can now link the theory of the relationship of law and morality inHabermas'thought with the theory of communicative action. If the l ink between law andmorality is to be found in adherence to procedures, it does not follow that procedureshave always been properly endorsed. In essence, the thesis about the relationshipbetween law and morality is as critical as it is constructive. I take it to be no accidentthat The Tanner Lectures conclude by stating, "There is no autonomous law withouta realized democracy. ' '16 The statement can be read in two ways: either, becausethere is evidence of democratic procedure in autonomous law there can be noautonomous law without a realized democracy, or, because autonomous law lacksevidence of democratic procedures there can be no autonomous law without arealized democracy. 17 What Habermas has done is to provide us with a way oflooking at the law from developmental and contemporary perspectives which willbe both effectively critical while at the same time grounding its legitimacy.One can put the above discussion in the context of communicative action byappealing to the debate regarding juridification , i.e., the proliferation of processesof legalization that have occurred in the modern, post-1600, period of socialhistory. 18 In systematic terms, the theory of communicative action, conceives ofsocial 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 morecomplex phenomena can be mediated either communicatively or instrumentally,


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Praxis International 159i.e., either through the lifeworld or under the imperatives of the sytem throughthe media ofmoney and power. In that process the lifeworld through which culture,society and personality are mediated can either be expanded or colonized .. Habennashas coined the phrase, "colonization of the lifeworld" to show how areas of sociallife can be subject to new forms of domination and control under the rubrics ofan instrumental rather than a communicative rationality. When one wishes to lookat the development of modern society from the process of juridification one hasthe options of either the colonization or, following from the final statement of TheTanner Lectures, the democratization of the lifeworld. However, as areas of thelifeworld which are communicatively structured are taken over by the imperativesof the system the tool which enables this process to go forward can be said tobe juridification.According to Habermas, following Kirchheimer, there were four waves ofjuridification characterizing the bourgeois state, the constitutional state, thedemocratic constitutional state and the welfare state, respectively. In the originalform, the Hobbesian state, the new subsystems of economy and state, "extractwhat they need" from the "unspecific reservoir" of the lifeworld. This sets thepattern for subsequent modes of juridification. Even though new freedoms aregranted, as in the democratic constitutional state when universal suffrage and theright to organize parties was granted, juridification erodes lifeworld structures towhich it assumes a parasitic position. This is particularly true in the welfare statewhere the state has the good intention of promoting social integration throughjuridification, a certain "disintegration of life relations occurs when these areseparated through legalized social intervention, from the consensual mechanisms thatcoordinate action and are transferred over to media like money and power." 19The problem becomes one of law assuming the role of a steering medium through itsintervention 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 thatregularly result from these analyses is easy to decipher. The point is to protect areasof life that are functionally dependent on social integration through values, normsand consensus formation, to preserve them from falling prey to the systematicimperatives of economic and administrative subsystems growing with dynamics oftheir own, and to defend them from becoming converted over, through the steeringmedium 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 juridificationwe might conclude that, in modernity, law, originally part of social life, becameseparated out under the imperatives of the system, to play the very ambiguousrole of simultaneously eroding lifeworld structures while providing at the sametime an anchor for new found freedoms. 21 Hence, although it might appear, asit indeed did to Max Weber, that law in modern society played an increasinglyautonomous role, in actuality, law, which requires the lifeworld for its legitimation,is indeed dependent upon those very structures of communication which, underthe imperatives of the steering mechanism, it attempts to mask. Hence, contraryto 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,


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160 Praxis Internationalindeed, law is better than it appears, because its action is at one time instrumentaland communicative. Although, I will return to this point later, let it suffice hereto suggest that there is a certain "cunning of reason" in Habermas' interpretationof the law which allows at the same time both an extremely critical reading andan affirmation of its rational potential.Law as CritiqueRoberto Unger is somewhat more difficult to characterize than Habermas. Ifanything, he is closer to Marx than Hegel in his attempt to develop a programwhich is both critical of current legal traditions and at the same time founded inan understanding of social theory. In discussing his early work later on in lifeMarx would suggest what happened to his earlier concern with the law: "My inquiryled me to the conclusion that neither legal relations nor political forms could becomprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the materialconditions of life, the totality of which Hegel, following the example of theeighteenth century, embraces within the term 'civil society'; that the anatomy ofthis civil society, however, has to be sought in political economy.' '22 This wellknown 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 oflaw.23 Having repudiated it in such a devastating fashion, the tradition which heestablished would have difficulty reappropriating an approach to law which woulddo something other than assume its arbitrariness. Law, in bourgeois society, wouldappear under the guise of irrationality. Unger while remaining on the left has beenvery careful to distinguish himself from Marx and the Marxist tradition. It wouldbe unfair of me to saddle him with the difficulties of that tradition from whichhe finds himself in such ambiguous relationship. However, there is a sense in whichUnger's program so undermines and relativizes the law that the potentalities forreconstruction are, not so much limited, but simply, vague. Yet, I hasten to pointout, the very suggestiveness of the position would render any conclusion premature.Critique of Objectivism and FormalismNo doubt the critique of objectivism and formalism is analogous to the critiqueof legal formalism that characterized Max Weber's analysis of law. 24 Formalismrefers to strict adherence to rules and procedures which are justified on the basisof a certain view of the way things are, a view which is supposed to be objectiveor according to those indulging in both legal practice and legal theory, true. Ifit were only that simple. If there were only one version of formalism, if therewas only one perspective on the objectivism to which law referred as its legitimization. But the references are legion. 25 Hence, one can say that both formalism andobjectivism rely on no one single formula, on no single theory, on no single setof practices; rather reference is multiple. The result is that the foundation of lawis said to be contradictory and therefore false. The task ofRoberto Unger in particularand Critical Legal Studies in general has been to make the contradictions withinthe law manifest. Indeed, there is no recourse from the set of dilemmas mademanifest by this expose. Ifwe take the case of the practical jurist or lawyer, since


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Praxis International 161there is no coherent body of legal doctrine available, decisions in law tend to bemade ~ n an ad hoc basis, or, to put it bluntly, legal decisions are quickly instrumentallzed, rationalized in the arbitrary interest of legal professionals.According to Unger, if one were to apply this insight to comtemporary schoolsof 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 ideais identified with a specific version of the market . . . with all its surrounding socialassumptions, real or imagined. "26 Inasmuch as it can be shown to be the case thatthis is one assumption among many which compete for attention among contemporary 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 besimilarly undermined. "It claims to discern in the leading ideas of the differentbranches of law, especially when illuminated by a scrupulous, benevolent, andwell-prepared professional elite, the signs of an underlying moral order that canserve as the basis for a system of more or less natural rights.' '27 This school issaid to alternate between two options: one assumes that there is a "moral consensus'for legal theory, while the other maintains that "dominant legal principles countas manifestations of a transcendant moral order." 28 There is a third positionwhich mediates between the prior two, incorporating a number of diverse strategies,one minimizes the extent to which the law incorporates "conflict over desirable forms of human association", another assumes that dominant legal ideasexpress higher moral insight, while a third strategy is to generalize moral truthfrom particular legal doctrines, a strategy which is characterized by a method ofhypostatization.One might call this the relativist expose, the discovery that there is no fundamentalfoundation upon which legal theory rests, that each appeal to connect it with somehigher aim, some foundation beyond the generation itself, some concept ofmorality,some concept of economic utilitarianism, falters on the very pluralism of competingconcepts of law and competing concepts of society. One is reminded of Hobbes'comment on felicity: Hobbes reminds us that' 'the Felicity of this life, consistethnot in the repose of a mind satisfied. For there is no such Finis ultimus, (utmostayme,) nor Summum Bonum, (greatest Good,) as is spoken of in the Books of theold Morall Philosophers. "29 Indeed, Dnger seeks to show because of the falseidealisms and inept realisms of the various legal schools the claim to link law tosome form of justification beyond it is for nought. Hence, one could surmise thatin Unger one finds a kind of repetition of the Hobbesian undermining ofAristotelianand Christian understandings of society in the paradigm of relativistic pluralislTIwhich he puts forth. Yet, as is known by those who have read Hobbes, the veryattempt to wipe the slate clean by exposing the falsities of prior theories can resultin the Herculean attempt to establish the validity of one's own. As Max Weberfound out, the critique of the irrational rationality of modern society can lead tothe rather abject confinement in one's own' 'iron cage." Unger assumes, as hisown, the task of leading us out of this mire ofwhat I have called relativistic pluralismto what optimistically may be called, greener pastures, the name for which is yetwanting.Unger claims that in both the rights and principles and the law and economicsschools we see the enterprise of "nineteenth century legal science," to be sure


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162 Praxis Internationalin a somewhat "watered down" state. This endeavor in turn presumed a "versionof the more common, conservative social doctrines that preceded the emergence ofmodern social theory.' '3 0 What presumably exists behind these theories is acertain reliance on an assumed "natural fonn of society" with its attendant anthropological assumptions providing the fundamental but unjustifiable ingredient fromwhich legal theory must be exorcised. The dual task of critique and constructionmust spring from this insight. On the one hand, a revelatory emphasis upon thedeep commitments of legal theory to social and naturalistic assumptions will exposethese ideas for that they are, remnants of a metaphysical universe which we aslate-twentieth century human beings no longer habituate. On the other hand, ifwe are to experience freedom from the falsities of legal theory and practice, Ungermust construct the kind of social and anthropological theory which compels ourallegiance.Unger does this by the construction of "deviationist doctrine, " a methodologywhich is simultaneously critical and constructive incorporating a number ofstrategies. Essentially, there are two models of deviationist doctrine, horizontaland vertical, each following distinct procedures. The first model, the horizontalversion, begins with a concrete examination of a particular branch of law. It exposesundisclosed assumptions implicit in that particular area. Subsequently, it considersalternative forms of social life which can be "independently justified." "Finally,the model shows how this programmatic conception can serve as a regulative idealfor the development of current doctrine. ' '31 In other words, the task of critiqueleads to the construction of counter-factual theories which presumably offeralternatives to current understandings. The second, the vertical model, workssomewhat differently by conceiving of fields of law as expressions of principlesand counter-principles which can be shown to be "contradictory". "The countervision worked out through the analysis of these foci ofcontroversy brings a changedunderstanding of the relation between counter principles and principles. ' '3 2 Afterthis itmay be integrated into a larger view of legal theory resulting in its applicationto other branches of law resulting in the explication of "larger justifications andimplications' ,.Both models can be said to work from the empirical to the normative, from

"authoritive rules and precedents," to "organizing principles and counter principles" , to imaginative schemes of social life that assign distinct models of humanassociation to different sectors of social practice. ' '33 Both methods expose inconsistencies and conflicts that exist at the various levels. "Conventional legal doctrine, andthe legal theories that propose to refine it the better to support it, try to suppress orminimil e both the horizontal and the vertical conflicts. Deviationist doctrine, on thecontrary, attempts to bring these instabilities to the surface: first, because this is theform subversion takes in the domain of legal ideas, and second, because if insightandjustification can be achieved at all in legal doctrine or any other field of nonnativeargument, they can be achieved only through the repeated practiceof such subversion,under its double aspect of internal development and visionary thought. 34 One concludes that "deviationist doctrine' , leads to an exposure and contiguous repudiationof the alternatives offered by the assumptions of the market and democracy. Andhaving 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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Praxis International 163Following Unger, one of the so-called broader implications of Critical LegalStudies 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 blindconstraint - beyond the repetitious and obsessional element both personal andcollective life - but a confrontation with the empty and anguished sense of freedomitself. " 35 This struggle against arbitrary compulsion drives one in either of twodifferent directions - toward Aristotle or Existentialism. In the case of the former,the "struggle against arbitrary constraints" is legitimated in terms of an unjustifiableappeal to an "objective ideal" which defies the experiences which gave rise tothe modernist problem. In the case of the latter, existentialism, there is nothingother than the "pure negative experience of freedom itself". "Freedom, to bereal, (says Unger) must exist in lasting social practices and institutions; it cannotmerely exhaust itself in temporary acts of context smashing.' '36As it is necessary to reject the modernist experience and the forms responsiveto it, it is necessary to reject more contemporary forms of social theory such asMarxism and various forms of pluralism because in one way or another both, itis said, rely on a certain' 'metastructure of history or society that can serve asa source of lawlike generalizations. "37 As a consequence of these failings, Ungersees himself and his colleagues involved in a double strategy, the first involvedin the political subversion of the legal process through the critical procedures outlinedabove, the second related to the development of "visionary thought," presumablythe 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 towork out a totally contingent view of society. Central to this is an idea of' 'radicallyanti-naturalistic social theory" which will undermine other modern forms of socialtheory which still have within them elements of a natural view of the origin anddevelopment of society. Implicit within this view is the critique of "false necessity",the idea that certain characteristics of society have some necessary basis andfoundation.This latter work on social theory may seem distant from earlier preoccupationswith the law inasmuch as a consideration of law is almost completely absent fromthe later work. However, it is not difficult to understand why Unger has embarkedon this ambitious project of re-thinking social theory. Having more or less repudiatedlaw as a relativistic project evolving as a rationalization of disguised motivationsof interested parties whose rationality was totally arbitrary, it is necessary to findin fields independent of law some justification for nonnative categories under whichpositions on the law may be adjudicated. Allow me to return to the point whereI began. Marx, having found the law contradictory, inadequate, expressive ofillegitimate interests, looked for other modes of explanation which he found inpolitical economy. Had he ever returned to a consideration of the law, and thereis some evidence that he did so intend, he may very well have found himself ina situation similar to that of Unger. Apparently, Unger, can only explain therelationship of law and society, of law and categories of normativity, through theinvention of a radical alternative which has its origin in his own apocalyptic


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164 Praxis Internationalvision of the way things should be. In the nineteenth chapter of the twenty-firstbook of The City ofGod, Augustine made a similar critique of classical civilization.His solution, however, was membership in the divine city. Alas, the luxury ofthat alternative is no longer given. Is it not the case that Unger has given us onemore representation of the split between relativism and utopianism, devoid ofrationality?The Debate over NormativityIfwe were to conceive of a kind of debate between the theory of communicativeaction represented by Habermas and Critical Legal Studies as represented by Ungerwe 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 seekin the history of law its original relation to morality in the moment of indisponibilitywhich was indeed obscured by various forms of legal formalism, and thereforemisunderstood by Weber, but nonetheless there. Hence, procedures regardingjustification associated with the original formulation of the social contract, appearing to be instrumental, in fact contain that undisclosed remnant of an associationbetween law and morality which might be redeemed by an investigation into thecharacteristics of a procedural rationality which has its foundation in the moderndevelopment of practical reason. It is possible then to arrive at a conclusion regardingnormativity and the law. Inasmuch as the rational kernel in the historical development of the law can be found in the discovery of certain procedures, one can suggestthe road which the law must follow in order to be redeemed from formalism andthe instrumental association suggested by that alliance. Indeed, the processes ofjuridificationmay appear to be mainly systemic, and therefore purely instrumentaland arbitrary, yet within that modern process a minimum form of rationality mustbe found.No doubt Unger's response to this relatively detailed program would be bothskeptical 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 whichyields a determinate procedure, there is no immanent moral rationality upon whichlegal thought and process may rest its case. In fact, if we follow the proceduresof deviationist doctrine we will end up with the exposure of a series of direct anddistinct contradictions. One might conclude that legal reasoning is nothing otherthan a form of political rhetoric. As such, arguments over the nature of law arenothing other than ideological disputes which must be exposed by the deviationistmethodology Unger has proposed. Dnger, presumably, would want to unmaskthe Habermasian program as hopelessly naive, finding a form of rationality whereonly politics and ideology exist. But Unger is not a total deconstructionist. Hedefinitely wishes to relate his understanding of the law to a form of normativitywhich one may only assume would arise from the "visionary" side of the enterprise.Here Habermas would find Dnger hopelessly naive, inasmuch as, there is noempirical foundation, no scientific basis, on which such an enterprise can proceed.Hence, great contradiction arises inUnger's version ofCritical Legal Studies. Havingso radically criticized all law as without foundation, how will it be possible todistinguish a version of social theory from which legal theory and practice can be


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Praxis International 165extricated as anything other than politics and ideology? In a sense, Unger has enteredinto a kind of rationality debate, only to find himselfwithout a basis to substantiateclaims. Questions emerge. If there are no normative standards which can be elicitedfrom the study of law, whence are normative standards derived? Is it possible todevelop criteria for the development of certain normative standards which we canestablish as true in a consensual sense? By turning toward the visionary, Ungercan only make an intuitive appeal regarding what is "true" and "false," or sosomeone inspired by the theory of communicative action might think. Unger mightrespond to this attack by simply showing that proceduralism itself is a sham.The Case of Legal FormalityThe 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 liberaltheory of justice which asserts that justice consists in the impartial application ofrules deriving their legitimacy from the prior consent of those subject to them.' '39By raising the question of legal formality in this way one can raise the questionof the precise relationship between the legislature which makes the rules in thedemocratic legal state and the judge who applies them. Legal formality under theconditions of the liberal, contractarian state assumes that a judge can legitimatelyconceive himself as the rule applier, one who can exercise the application of rulesin cases presented by disputing parties. This process, the derivation and applicationof 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 saidto be arrived at through a process of legislative mediation of ' 'substantive-rational"interests. However, the assumption is that once arrived at, they can be formallyapplied. Kennedy wants to make the case that rules when applied lose their claimto 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 isnot derived from its inherent content as just, which it is not, but merely from itslegitimacy derived from the body of rules as a whole. Hence, the followingconclusion is possible: "The process of rule application itself has nothing to dowith "justice" or "right. "40 It does have to do with the implementation of theinterests of the state which has derived the rule and the autonomy of the individualwho under that system of rules is granted and guaranteed autonomy. Rules andadherence thereto not only add to the autonomy of the individual but also restrainautonomy in order to prevent harm to others. One should add that although thederivation of rules which are the result of a compromise and are neither just intheir derivation nor in their application, the category under which the rules areconceived and under which the judge applies the distributive justice. The idea behindthe application of the rule is that distributive justice, which has been attended toin the legislature 's working out of the rule, can be applied mechanically throughthe 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 beto apply this compromise to a situation in which there again emerge conflicting


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166 Praxis Internationalinterests. 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 thusappears to be proposing that the judge forsake the secure and stable occupationof rule application for the obviously dangerous job of substantively rational arbiterof disputes about a constantly changing pattern of distributive justice and injustice."One could wait, of course, for the legislature to develop new rules to changingcircumstances, which is, in fact, what occurs in a changing world, but that reallydoes not resolve the dilemma existing between the formulation of the rule and itsapplication. The judge in the process of application has to move beyond the realmof legal formality in one way or another given the discrepancy between rule andapplication. In Kennedy's view, this raises a "moral" objection. "Thejudge cannotclaim that legislative acquiescence legitimizes his action because he himselfcreates,through his decision ofparticular cases, the situation from which will emerge anas yet indeterminate constellation o f legislative power. ' '41If one might pause for a moment to reflect on this critique of legal formalitybased on the distinction between legislative rule construction and judicial ruleapplication one could find a fundamental similarity between the critical procedures

of the theory of communicative action and Critical Legal Studies. The fundamentalflaw in legal formality is that it cannot restrict itself to its own narrowly formaldefinition. Hence, the judge, in the application of the rule must reach beyond therealm of the given rule in light of the present situation in order to make a judgmentwhich, one could surmise, has a substantively rational character. For both positionsthis practical dilemma points to the fatal flaw in legal formalism. The theory ofcommunicative action might conclude that this is precisely an instance of the casewhere the link between law and morality which formalism had fought so valiantlyto sever is to be established. Critical Legal Studies will want to claim, as it laterdid, that the indeterminacy thesis regarding law can be established with this example.However, the real difference that separates the positions can also be derived fromthis example. Critical Legal Studies will not want to make the claim that this practicalinstance provides an illustration for the joining of law and morality. This will insteadbe 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 bothimplements the compromise by which the community legitimately disposes of theproblem of distributive justice and provides a highly certain framework for privatemaximizing activity.' '4 2 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 thathe should disregard the rule and examine the question of distributive justice. ' '4 3Equally, the judge could attempt to "return to formal rule application with the singlepurpose of securing the certainty of the framework for private maximizing. "4 4In other words, theoretically the judge could return to the legislature. But thispossibility is only theoretical inasmuch as, according to Kennedy's definition ofthe rule as a representation of compromise, it already has a certain ambiguity writteninto it when made the basis for a practical decision. Hence, appeal to the legislatureis no sure resolution. If the rule appears to the judge as unfair, "Loyalty to therule is a decision for a particular political outcome; disregard of the rule threatens


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Praxis International 167the very mechanism of order through compromise.' '45 So, one can conclude thatthe application of the rule is a kind of roulette game in which the judge is damnedif she does and damned if she doesn't. "Al l laws are gambling contracts, as Hobbessaw long ago. Alflaws pose the judge and litigant the question whether they shouldaccept a conception of the administration of justice as a mechanism for the collectionof resulting debts. It makes no sense to expect that yet one more gamble - a gambleon gambling - will make the problem go away.' '4 6To summarize Kennedy's position, the ambiguity which arises between thelegislative generation of rules and their judicial application suggests that, in thecase of judicial application the judge has a series of alternatives which are equallyavailable to her. She can attempt to rely on pure formalism. This may not workand 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 substantivelyrational issues on the other. I should like to derive two hypothetical readings fromthis position, one would favor Critical Legal Studies while the other would favorthe theory of communicative action. In the first reading, since the judge has ather disposal a series of alternatives, none ofwhich is a necessary one, her decisionis likely to be arbitrary, the consequence of a series of irrational variables whichhappen to affect her decision. If this is the case then there really is no differencebetween law and ideology, law and politics. Further, if there is to be an associationbetween law and politics it would be necessary to develop a theory of law froman entirely different perspective (Unger's alternative). I do not regard this lastgeneralization as a necessary one. One could just as well argue that in modernpost-Hobbesian society there neither is nor can be an association between law andmorality. In the second reading, the one inspired by the theory of communicativeaction, the series of alternatives available to the judge would be seen as anythingbut arbitrary. One could develop the kind of thesis which suggests that the veryattempt to adhere to the principles of legal formality breaks the bonds of legalformality leading to the introduction of issues of substantive rationality. Here, whenthe judge attempts to apply the formal rule, the practical circumstance of litigationforces a redefinition of the rule to meet the practical situation. In order to do thatit is necessary for the judge to exercise a practical judgment derived from experienceoutside the process of the purely formal application of rules. Hence, as a necessaryresult of rule application, issues of substantive or moral-practical rationality areinvolved.ConclusionIn part the answer to the fundamental question regarding which reading is thecorrect one is dependent upon the actuality of the case. However, the data whichdetermine the outcome are not "raw" data. In the realm of interpretation skepticism is indeed an option. In the Marxist scenario, the radical critique to whichCritical Legal Studies subjects the law results in an attempt to reinvest the relationshipbetween 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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168 Praxis Internationalthe course of the world is better than it thinks. What appears to the skeptical eyeas the cold and calculating instrumentality, under the subtle gaze of the "cunningof reason", is, in actuality, reason coming into its own. If the theory of communicative action can anchor successfully the development of law in the procedures ofpractical-moral rationality it may be able to reach its goal of uniting autonomouslaw with realized democracy. In that case law would indeed be better than it thinks.

NOTES1. With Hegel the modern discussion of the place of law in relationship to morality begins. Lawcan neither be subsumed under the category ofmorality 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 bethe 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 relationshipof 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 thatoriginated with Hegel. However, I should like to make clear that I do not identify Habermas withHegel. For example, Habermas modifies Hegel' s historical interpretation to be something like aventure in "reconstructive science". Further, although Habermas uses the concept of rationalityto associate law and morality, his concept of rationality is based on language, not consciousness.Finally, although he depends on a concept ofmodernity to develop his concepts of law and morality,Habermas distinguishes between the concepts of conventional and post-conventional morality whileHegel does not.9. Habermas, interpretingWeber states: "Legal domination acquires a rational character in that,among other things, belief in the legality of the enacted regulations and the competence of rulingauthorities has a different quality than belief in tradition or charisma: it is the rationality intrinsicto the form of law itself that secures the legitimacy ofdomination 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 appearedto be a sanctioning of positive principles was simply an appeal to popular economic theory. Hisdissenting 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 thereoffocus 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, thisnotion 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 alternativeto Weber's reading. This reading attempts to find in the social history of law a moment where thelegitimation of law requires something more than instrumental authority. In a so-called religioussociety law could be conceived to be legitimated on the basis of an appeal to a sacred text whichexisted beyond the immediate authority of a particular lawmaker to which that lawmaker appealed for


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Praxis International 169legitimation. As law becomes more and more secular the sacred foundation of law would, accordingto 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 representnot the destruction but rather the preservation of that original moment inasmuch as the guaranteeof appropriate procedure cannot be sustained by a reading of law itselfbut must come from an appealto 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 morality is establishedtheoretically.18. The discussion of juridification (Verrechtlichung) documents the final and certainly one ofthe most important claims of The Theory ofCommunicative Action, namely, that with the development

of modern societies there is a tendency to colonize lifeworld experience. The proliferation of lawin Dlodern society tends to illustrate how areas left to customary modes of organization are takenover 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 assumptionis the following: if one is to correlate the reading of juridification with the position developed inThe Tanner Lectures it would follow that juridification would have its positive as well as its negativemeaning. In that sense, juridification would point beyond itself to the underlying link between lawand 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 matterfor 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 discoverythat 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 theproletariat, a recommendation which is both tantamount to the repudiation of legal and democratictraditions and representative of a certain forgetfulness of that learned earlier in life.24. There is some discussion of the precise relationship of the crit ical legal studies movement

to legal formalism and legal positivism which were in their heyday at the turn of the century andlater. 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, TheCritical Legal Studies Movement (Cambridge, 1983). Although I will concentrate on this text, Unger'slnore 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 yetunpublished, 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 polit ical thought he represents the paradigmatic case of what I have called the relativistexpose. Having instrumentalized all rational procedures his theory requires an appeal beyond reasonto 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 ofsearching 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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170 Praxis International36. 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'sposition 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 skepticalthan Unger's. His argument agrees with Dnger on the critical side but it does not follow Unger'sprophetic 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 particularargument from Kennedy is that it allows one to illustrate a classic procedure of the critical legalstudies 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.

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