G U Y H A A R S C H E R
P E R E L M A N A N D H A B E R M A S
The problem o f argumentation is central in Perelman's thought. In 1976,1 he applied his " N e w Rhetor ic ''2 to the field o f law. Ji~rgen Habermas has been interested in the last ten years in elaborating a "Theory o f communicat ive action". 3 His theory is, although in a peculiar manner - Habermas is not a "legal philosopher" - also related to jurisprudence. The aim o f this paper is to ask whether or not such a similarity be tween the general conceptions reveals an inner connec- tion.
I. J U S T I C E A N D R E A S O N IN P E R E L M A N
In his first book, Perelman tried to present a "systematic study o f con- fused notions", 4 and especially o f justice. He distinguished be tween "formal justice" and "concrete justice". 5 The first one is defined in the fol lowing way: similar situations must be treated in similar ways. 6 O f course, this does not define the content o f justice. The definition only
1 See Ch. Perelman, Logiquejuridique, Paris, Dalloz, 2d ed., 1979. 2 See Ch. Perelman, Trait~ de l'argumentation, Bruxelles, Editions de I'U.LB., 4th ed., 1983. 3 See J. Habermas, Theorie des kommunikativen Handelns, Frankfurt, Suhrkamp, 1981, 2 vol.; by the same author: Vorstudien und Ergi~nzungen zur Theorie des kommunikativen Handelns, Frankfurt, Suhrkamp, 1984. C£ also: T. McCarthy, The critical theory ofJOrgen Habermas, Cambridge, Mass., The NLI.T. Press, 2d printing, 1982, pp. 272-357. 4 Cf. Ch. Perelman, 'De la justice' (1945), in:Justice et Raison, Bruxelles, Edi- tions de I'U.LB., 2d ed., 1972, p. 12 ("...l'objet propre de la philosophie est l'dtude syst~matique des notions confuses."). 5 Ibid., pp. 21sq. 6 Ibid., p. 26 ("...les ~tres d'une m~me cat~gorie essentielle doivent ~tre trait~s de la m~me fafon.").
Law and Philosophy 5 (1986) 331-342. © 1986 D. Reidel Publishing Company.
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states that if you adopt a rule o f substantial (concrete)justice, you must then apply it equally to all similar circumstances. For instance, f a l l the citizens older than 18 years o f age have a right to vote, then you can- not exclude an individual who is in the mentioned condition: this would amount to an arbitrary discrimination. But o f course, such an obligation depends on the "hypothesis" (the "if"), that is to say, the substantial philosophy o f justice (here: political rights) you adopted in the beginning. Formal justice presupposes a notion o f substantial jus- tice which comes from the "outside". N o w the problem is: how are we to justify this notion.~
In 1945, Perelman is still a neo-positivist: he thinks that, in the realm o f values, you cannot ultimately use reason to justify the fact that you prefer a given norm to another one; there is an irreducible element o f decisionism. But this solution is not satisfying, and during the following years, Perelman tried to go beyond such a kind o f positivist relativism or skepticism. The New Rhetoric tried to find a tertium datur between the old rationalism, which Perelman never accepted, and neo-positivism, which he did not accept any longer. This middle-of-the-road position was symbolized by the notion o f "reasonableness": if you have to choose in practical matters, you can use a certain kind o f reasoning. However, this is not deductive in the rationalistic sense o f the word since you are unable to give demon- strations or universally valid proofs for your position. On the other hand, i f you have to abandon a too ambitious conception o f practical reason - Cartesian reason, 7 Perelman says - you are not compelled to follow a positivist and relativist line o f thought. There is a third possibility, consisting o f using the nonformal ways o f arguing Perel- man put forward in the Treatise: you can give "good reasons" to adopt a position, but these will never be as universal and objective as they are in mathematical sciences; you have to argue before a particular audience, you must find a reasonable, that is, acceptable solution. This means that tolerance is at the very heart o f Perelman's thought: if you
7 Cf. Traitd de l'argumentation, op. cit., p. 1 ("...une rupture avec une conception de la raison et du raisonnement, issue de Descartes, qui a marqu~ de son sceau la philosophie occidentale des trois derniers si~cles ...").
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don't possess the truth, the position of your adversary may only be less acceptable in the present context; you have to respect him even if you disagree with him, which would not be the case if you could say that he is simply wrong.
Perelman considered that his new rhetoric was at the very basis o f democratic societies and the rule o f law. He tried to prove it in his Logique juridique. In this book he struggled against the conception of the '~judiciary syllogism" (Bentham, for instance): 8 this norm of reasoning ensures the application of formal justice, but it implies that the judge has nothing to do with the problems of substantial justice; these have to be solved by the "sovereign", that is, the legislator. O f course there is, at least on the Continent, a strong justification for such an attitude - the requirements o f the theory of the separation of powers. The judge must have eyes only to look at the text o f the law, 9 he has not to interpret it. This conception was related to the arbitrary character o f justice during the period of the "Ancien Rdgime" (confusion of powers, dependence of the judge on the executive - the king - "lettres de cachet", "bon plaisir du Prince", etc.). The ideal system of law would be composed of univocal, non-ambiguous, words. It would be complete (no lacunae) and consistent (no contradictions)) ° So the liberties o f the citizen would be protected: he would know the law before acting (nulla poena, nullum crimen sine lege, publicity of the statutes); the judge would have to apply the rule, and nothing else. The judiciary syllogism would have the following form: first the rule (major premise), then the case (minor premise), then, mechanically, the decision (conclusion).
Perelman showed that this was an unattainable goal as there are always ambiguities, inconsistencies and lacunae, the future is un- predictable, and the judges have to interpret the law; in some cir-
s Cf. Logiquejuridique, op. cit., pp. 2 sq. et 176 sq. 9 C£ Montesquieu, Esprit des Lois, in Oeuvres Compl~tes, Paris, Gallimard, Biblioth~que de la Pl~iade, t.II, 1958, p. 311 (Livre VI, chap. 3). 10 Cf.. Ch. Perelman (ed.), Les antinomies en droit and Le probl~me des lacunes en droit, Bruxelles, Publications du Centre national de R.echerches de Logique, 1965 and 1968.
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cumstances, they must refer their decisions to equity or natural law. But o f course this can lead to arbitrariness, to judiciary "existentialism". l~ Everyone sees that we have here the exact replica o f the general problem we spoke of in the beginning of the article - if the judge has a wide power o f interpretation, he can use his own conception o f substantial justice to decide; but formal justice is only ensured, as far as Continental jurisprudence is concerned, when the legislator is the sole representative o f concrete justice. What will happen if the judge fills the gaps, solves the contradictions, eliminates the ambiguities, creates the law in unpredicted circumstances, doing all this in a personal, subjective way? He will, of course, endanger the formal justice (the juridical certainty). So both positions are unaccept- able, either the rationalistic position of the complete sovereignty o f the "general will" embodied in the legislator, or the relativistic posi- tion o f the judge deciding freely in the concrete case (decisionism, Freirecht). The theory o f argumentation allows Perelman to find the tertium datur: the judge must always give good reasons for his decision, particularly when he chooses not to follow the strict formal way o f the judiciary syllogism; and he must keep the balance between separa- tion o f powers and the realities o f law (impossibility o f a formal sys- tem of law). Here also, there is an attempt to adopt a "weaker" rationality, that is, to save rationality endangered by the decisionist attacks.
Kant had already seen that dogmatism and skepticism sustain each other. I f you try to apply the cartesian notion o f reason ("iddes claires et distinctes") to practical realities, to action, then your failure will give rise to skepticism. Reason must be adapted to its sphere of activi- ty. Reasonableness is not demonstrative rationality, argumentation is not inference, new rhetoric is neither "esprit de systeme", nor pure deci- sionism.
11 C£ the Freirechtsbewegung (O. Btilow, E. Ehrlich, H. Kantorowicz).
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II. HABERMAS'S C O N C E P T I O N OF " C O M M U N I C A T I V E A C T I O N "
In the following I shall try to show how the problem of argumenta- tion is related to the opposition o f positivism and rationalism in Habermas's work, and how this has some very important consequen- ces for the philosophy of law (what could be called the "crisis of juridical legitimation"). Then, I shall relate Perelman's and Habermas's theories, and try to get to some philosophical conclusions.
Habermas's point of departure seems to be very far away from Perelman's. Habermas is a member o f the second generation o f the Frankfurt School; actually he is the most prominent one. His basic problem is to try to go beyond the kind of radical pessimism which was characteristic of Adorno and Horkheimer's thought, for instance in the Dialektik der Au.jCkldrung. 12 Generally speaking, this pessimism was related to the problem of rationality. Rationality was supposed to have had two major traits during the period o f Enlightenment. First, it was identified with science and knowledge, with freedom from dogmatism and superstition. Second, it was related to the emancipation o f the human species. To put things differently, rationality concerned both means and ends. Actually this was a classical concept of reason. In Greek philosophy, logos meant a kind o f inner transformation, that is, a very modification of the individual's ends. The individual was sup- posed to be able to get to the contemplation of the "Good" (Plato), or to acquire the practical virtue o f phronesis (Aristotle), or to live according to the cosmos (Stoa), etc. In other terms, reason unveiled for the individual new, "true" ends; after having philosophized, he was no longer the same. There was a philosophical life, a "good life", a kind of happiness related to logos.
Take for instance, on the opposite side - as Leo Strauss brilliantly showed 13 - the way Thomas Hobbes argues TM when he tries to give a
12 Cf., on this point, P. Connerton, The Tragedy of Enlightenment, Cambridge University Press, 1980, pp. 60-79. 13 Cf. Leo Strauss, Natural Right and History, Chicago, The University of Chicago Press, 1953. 14 Ibid., chap. V, first part ("Hobbes").
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justification o f political authority. In the state o f nature, individuals are motivated by a basic trend: self-conservation. For that purpose, they try to secure the maximum of advantages for themselves as anything might happen which would endanger their life, their "security". So the state o f nature is identified by Hobbes with the realm o f homo homini lupus. But, Hobbes goes on, people have at their disposal a kind of reason (we shall see that it is quite different from the classical defi- nition o f Iogos); they are able to foresee the future, that is, to see in their imagination what will eventually happen if they follow a line o f action. They can understand that the state o f war o f all against all necessarily leads to terrible consequences, to their eventual destruction (someone will come who has more power; he will be limited by nothing and will crush us). Therefore they accept to enter into a social contract. Everyone alienates a part o f his power, o f his liberty (right to be his own judge), if and only ~all other people do the same. So the artificial body o f the Leviathan is created, and we know that his power is absolute, at least as long as he protects the subjects' lives. N o w the problem is, as we can easily see from what has been said, that reason is, in the Hobbesian sense, only "instrumental" (reason of the means, not o f the ends). The individual's ends are not transformed by the use o f reason; reason only helps people to get more securely, more consistently, to the same end. The State is the best means o f self-preservation. In other terms, here reason is a calculating reason; there is a permanence o f ends before and after the contract, so we can say the Leviathan is just the best means o f self-preservation, and you can see that you lose less in terms o f natural liberty than you win in terms o f a guaranteed preservation o f your personal safety. Now, as far as classical reason is concerned, the situation is totally inverted. Classical reason introduced qualitatively new ends; it was impossible to "calculate"; there was a heterogeneity between the pre-philosophi- cal state and the philosophical state; reason was reason o f the ends, not only o f the means.
I think that Hobbes sees very clearly what other thinkers do not realize: there is an opposition - and a very strong, a decisive one - between ancient and modern (instrumental, "technical", scientific) rationality. Classical rationality leads to the "sovereign good". It is at
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the same time knowledge and emancipation (discovery o f new and liberating ends). Hobbesian (technical) rationality is just knowledge; ends must come from the outside, so reason can serve them, whatever they are. Now Habermas is right when he tries to show that the philosophy o f the Enlightenment was, as it were, prisoner o f a very deep contradiction. It wanted to use reason to get to the classical aim (emancipation o f man, whatever the differences between classical and modern ideals of "good life"), but it had "dropped" the classical Iogos. There was a rising domination o f a kind o f rationality which was not able to give criteria about ends. Enlightenment was supposed to be both knowledge and emancipation, but it seemed that the second term was only imaginary.
Adorno and Horkheimer had gone to the ultimate consequences o f such a situation. Following Max Weber's concept o f the "disenchant- ment o f the world", is they had shown that modern instrumental reason, being the servant of any end, leads to cynicism. They thought that there was ultimately a relationship between technical rationality and the extermination camps. So the question was: how can we still philosophize after Auschwitz. ~16 The "dialectics" o f Enlightenment must be understood in the Hegelian sense: a transformation of reason into its contrary. Reason is supposed to be an instrument o f emanci- pation. However, it has become a means o f domination. Modern rationality destroys the old ends, it criticizes them because they are "mythological". But it does not replace them. Instrumental rationality destroys the old universal ends o f the good life, only self-interest remains, and modern reason helps it to become dominant. Machiavelli had already said 17 that modern political theory has to take people as they are and not as they ought to be. What he had taken as an aim was, if we follow Adorno and Horkheimer, realized in the twentieth century.
N o w Habermas is conscious o f the fact that technical rationality may be dangerous, and that the trend criticized by the Dialektik der
15 For this influence, cf. E Conner ton , op. cir.,passim. 16 CF. ibid., p_p. 60-79. 17 See Strauss's analyses in the same chapter.
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AuJkldrung is a real trend, an actual threat. But, in opposition to his predecessors, he tries to show that modern rationality has also an "emancipatory" side. Therefore he wants to "save" modernity. Modern rationality is not just instrumental rationality. Modernity also has established a new element, which is essentially related to emanci- pation. This element is the notion of public space. Since the Renaissance, modern rationality has developed the following idea: every statement, whatever, it is, must be argued, justified, before an audience. Or course, this has not been acquired immediately. Every- one remembers Galileo's trial, the very complicated evolution of Protestantism and secularization, the ambiguities o f the Philosophers, during the Enlightenment period, concerning social problems and traditional authority (this is quite clear in the School o f Natural Law: both Grotius and Pufendorfjustified absolutism). On the other hand, the ways o f justification are different f rom one field to the other, f rom one audience to the other. But one aim is presupposed: a com- munication free f rom domination ("ideal speech situation"), which has a kind of revolutionary impact. "Public space" means that statements, values, choices have to be put forward in the discussion. Modernity does not only mean the victory o f instrumental action, it also signifies the very possibility o f communicative action.
So Habermas tries to find a kind of synthesis between the rationalistic optimism of the seventeenth and eighteenth centuries (the illusion of being able to attain the classical ideal with modern, instrumental reason) and the positivist "pessimism" of decisionism (the acceptance of the impotence o f reason regarding aims and values - in other terms, the abandonment o f practical rationality). The theory o f communicative action emphasizes the progress which has only taken place with modernity - a potentially universal public space, a recogni- tion o f each individual as a potential "source" o f arguments, the neces- sity o f justifying moral-political statements, the presumption of innocence, etc. But Habermas agrees with Adorno and Horkheimer on the dangers o f a domination o f an instrumental rationality which would go beyond the limits o f its legitimate domain and threaten communicative rationality. Therefore his approach is Kantian in a double sense.
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First the theory o f communicative action presupposes, in every speech act, the ideal o f a communication free from domination. So Habermas tries to avoid the accusation o f ethnocentrism coming from disciples of Wittgenstein, such as Winch. 18 O f course, communicative action is only developed and actualized in modern industrialized western societies. Nevertheless it is not, in Habermas's opinion, the product o f a particular, western, individualistic, culture. On the con- trary, some particular conditions which have taken place in the history o f modern Europe (development of modern scientific spirit, Protes- tantism, capitalism, etc.) have made a realization of this ideal possible. However, we must insist on this, it is embodied in every act o f com- munication as a presupposition, as an "a priori". This "transcendental" element relates Habermas's problematic to Kantian criticism.
There is a second major Kantian element. In Knowledge and Interest, 19 Habermas tries to distinguish between various "interests o f knowledge": the "technical" one, the "practical" one and the "eman- cipatory" one. Similarly to Kant, Habermas tries to define the legiti- mate realms of various kinds of rationality. Technical rationality is, as we have seen before, purely instrumental. It has to be limited to the necessary mastery o f nature (in Marxian terms: to the development o f productive forces, which is the very basis o f the materialist concep- tion o f history Habermas will try to "reconstruct"). Thus, the aberra- tions which the authors o f the Dialektik der Aufleli~rung had analyzed and deeply criticized would be avoided, instrumental rationality would be given a legitimate use and also a "transcendent ''2° one (illegitimate, going beyond the limits established by Habermas). But instrumental rationality would not be completely denied, as it is in various fashions by Leo Strauss, Heidegger, Alfred Verdross, Michel Villey, or even Hannah Arendt, all o f them seeking a solution in a kind o f "revival" of traditional reason, be it Greek or medieval. The necessity of mastering nature would be preserved, as it is in Marx's work.
18 C£, on this point, T. McCarthy, 0p. cir., pp. 317-318. 19 Ibid., pp. 53-125. 2o In the sense given to the term by Kant in the Critique of pure reason.
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On the other hand, practical rationality - another requirement o f every society is that people must understand each other, that is, they must speak the same language and share a common core o f values - would be secured by laying emphasis on hermeneutic procedures. As we know, however, Habermas does not accept Gadamer's conclusions. 21 Hermeneutics could lead, just as technical rationality did, to a kind o f cultural relativism, and Habermas wants to preserve practical rationality, that is, a certain kind o f universality and objectivi- ty. This is the reason he puts forward the notion of "critical sciences" in Knowledge and Interest (Marxism, psychoanalysis), 22 and later o f "reconstructive sciences". 23 His aim has always been to preserve a kind o f universality by showing that communicative action and the requirements o f proof and argumentation are °endangered both by instrumental rationality (which is universal, but limited to technical means) and by hermeneutic procedures (which are particular, that is, rooted in a specific cultural context). In a sense, Habermas follows Hegel, who struggled against abstract understanding ("reification" o f instrumental rationality) and romanticism (negation of reason for the sake o f the "particular"). His "emancipatory interest" is really at the heart o f the attempt of saving practical reason.
Now the juridical aspect o f the problem. Modern theories o f natural rights, which influenced American and French revolutions, were often rationalistic. These rights were supposed to be discovered by reason as evident truths, so reason could give the standard for the critique of authority (positive law, illegitimate powers, tyranny, etc.) Both Perelman and Habermas think that this ideal - universal human rights, free discussion of moral and political choices by autonomous individuals - has to be preserved. Both o f them agree on a kind of
juridical legitimation of power. But again, both o f them reject the rationalistic view of natural rights. Perelman follows Hume and neo- positivism, at least in the beginning of his work and as far as the impotence o f classical rationalism is concerned (see the above-
21 C£ McCarthy, op. cir., pp. 187-193. 22 Ibid., pp. 75-90. 23 Ibid., pp. 276-279 and 355-356.
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mentioned debate on justice in "De lajustice"); Habermas criticizes the illusion o f a conception which tries to attain classical ends by resorting to "modern" reason. Both authors are on the same level o f thinking when they struggle against the relativist consequences of this rejection o f strict, "strong" rationalism. O f course, their philosophical background, and therefore their way o f arguing, differs. Perelman finds in a renaissance o f Aristotelian rhetorics a new concept of "reasonableness", which allows him to plead for a more "flexible" rationality (a rationality of good reasons, less stringent than demon- stration, but not leading to subjectivism and arbitrariness); Habermas finds in the development o f a "public space" the very basis of eman- cipatory, that is, communicative, action: positions have to be defended, argued, justified, which allows people to control, criticize authority to "publicize" it. But Habermas, like Perelman, does not think that this rationality is a technical-demonstrative rationality, rather it is a sui generis rationality, and (as in New Rhetoric) a tertium datur between rationalism and relativism, reason and will.
III. PERELMAN AND HABERMAS
Habermas often insists that it is completely impossible to go back to classical philosophy, to metaphysics, substantive rationality. As Perel- man, he thinks that modern public space is based on some formal constraints, but that this does not presuppose a substantial metaphysics which would be the necessary foundation for ethics and law (for normativity). New rhetoric and communicative action are both related to a "new" rationality and both emphasize argumentation as the central procedural element of normative statements in a "dis- enchanted" world. But what are these constraints.~ If normative state- ments have to be proved (or, in the Popperian sense o f the term, "falsified"), presumption of innocence is a major, basic value. If every- one entering the public space is potentially an alter ego in the process o f communicative action, then the essential dignity o f the person must be secured; freedom of thought and speech must be guaranteed; arbitrary power (non publicly justified statements) must be excluded. In other words, there are some "transcendental" presuppositions o f
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new rhetoric and communicative action. Human rights are the very basis o f the ideal speech situation. Language and communicat ion are the true foundation for a minimal content o f morality.
O f course, I do not want to identify Perelman's and Habermas's general contexts o f thinking. Even i f the aim seems similar, even i f the c ommon enemy is positivism, Habermas wants to do a lot o f things Perelman is not interested in. For instance he tries to "recon- struct" historical materialism, to discuss functionalism and Luhmann's theories, to use psychoanalysis as a model o f emancipatory knowledge, etc. 24 But nevertheless, both authors open the same door: they want to abandon metaphysics and substantive rationality and to give argu- mentat ion the status o f a new foundation for norms. The difficulties and limits o f their respective positions will have to be assessed else- where.
Centre de Philosophie du Droit, Universitd Libre de Bruxelles, Bruxelles, Belgium.
24 Ibid., pp. 232-71,213-32 and 193-213.