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哈贝马斯论法律与民主(英文)11990X Time of Request: Friday, September 12, 2008 03:28:49 EST Client ID/Project Name: Number of Lines: 1969 Job Number: 1822:113076782 Research Information Service: Natural Language Search Print Request: Current Document: 7 Source: US & Canadian L...

哈贝马斯论法律与民主(英文)
11990X Time of Request: Friday, September 12, 2008 03:28:49 EST Client ID/Project Name: Number of Lines: 1969 Job Number: 1822:113076782 Research Information Service: Natural Language Search Print Request: Current Document: 7 Source: US & Canadian Law Reviews, Combined Search Terms: Robert Alexy Send to: ZHEJIANG UNIVER, LEX/11990X ZHEJIANG UNIVERSITY ZHEDA RD HANGZHOU, CHN Page Page 17 Cardozo L. Rev. 1477, * 7 of 250 DOCUMENTS Copyright (c) Yeshiva University 1996. Cardozo Law Review March, 1996 17 Cardozo L. Rev. 1477 LENGTH: 38591 words Habermas on Law and Democracy: Critical Exchanges: Part II: Habermas Responds to His Critics: REPLY TO SYMPOSIUM PARTICIPANTS, BENJAMIN N. CARDOZO SCHOOL OF LAW NAME: Jurgen Habermas * BIO: * Professor Emeritus, University of Frankfurt, Germany. Translated by William Rehg. SUMMARY: ... Richard J. Bernstein and Frank Michelman each accentuate this moderate contextualism differently - Bernstein approaching it from a pragmatist perspective inspired by Aristotle, Michelman from a civic-republican perspective. ... Therefore, we are faced with a value conflict that cannot be resolved either by discourse or by compromise. ... But McCarthy draws false conclusions from the fact that every national, spatiotemporally situated legal order is "permeated" by the ethical self-understanding of a political form of life. ... Naturally, it succeeds in this task only on its own premises, since legal discourse, too, is supposed to display the property of incommensurability. ... Whereas a discourse of justification tests the universalizability of a practice in light of consequences that can be illustrated only in foreseeable typical cases, a discourse of application must explain which prima facie norm is most appropriate to all the relevant features of an actual case of conflict. ... It requires the provisional disconnection between, on the one hand, the statements one can (defeasibly) make from this participant perspective and, on the other, statements about matters that can appear only to the observer who adopts a nominalist strategy (such as objectifying statements about how cultural forms of life have arisen historically, or about the natural constancies under which alone cultures can reproduce). ... TEXT: [*1477] Introduction Every author owes a debt to his readers. This is especially true when an author presents a wide-ranging and complex investigation that draws the critical attention of outstanding colleagues. I have profited a great deal from my colleagues' thoughtful commentaries, as will be evident from this Reply which is a token of my appreciation. Due to the constraints of space however, my Reply must be selective. This has nothing to do with the quality of the contributions. There is nothing I can add to Klaus Gunther's exemplary analysis of the public use of communicative freedoms as the context in which communicative power emerges. n1 The concept of "communicative freedom" that is used in Chapter 4, Section II of Between Facts and Norms n2 grew out of stimulating discussions with Klaus Gunther. n3 The questions raised by Andrew Arato demonstrate a precise knowledge of my theory and a broad agreement with me. n4 These questions require a deeper, extended analysis that cannot be carried out here. Andras Sajo has provided a comparative survey of problems of constitutional adjudication. n5 Here I can only take notice of his study, which I have found quite instructive. Bernhard Schlink labels the "value jurisprudence" of the Federal Constitutional Court a "myth" n6 ; since I did not invent this interpretation [*1478] but took it from the numerous writings of prominent scholars and even members of the Court itself, I would rather leave this dispute for legal scholars to settle. There are other reasons for avoiding Peter Goodrich's polemic. n7 In any case, the very nature of a reply requires me to focus more intensively on some contributions than on others. This by no means implies that those arguments and objections have more weight, but only that for me personally they were especially thought-provoking. n8 I limit myself to seven thematic complexes that allow me to deal with the remaining articles in the following sequence. To begin, in Section One, I take a metacritical position on how the "right" is embedded in conceptions of the good. Richard J. Bernstein and Frank Michelman each accentuate this moderate contextualism differently - Bernstein approaching it from a pragmatist perspective inspired by Aristotle, n9 Michelman from a civic-republican perspective. n10 Bringing matters closer to home, in Section Two, Thomas McCarthy sharpens the controversy by asking whether the discourse model - in particular its assumption that each case admits one right answer - does justice to the value conflicts that are typical of multicultural societies. n11 In Section Three, I will examine the perspective of legal scholars by discussing the work of Michel Rosenfeld, who continues the discussion concerning the priority of procedure over a substantial background understanding. n12 Rosenfeld concludes by suggesting an alternative that [*1479] Arthur J. Jacobson then develops into a dynamic conception of law. n13 In Section Four, I deal with William Rehg's question concerning the relation between discourse and decision, which leads him into more fundamental issues of theory construction. n14 In addition, Section Four will address Michael Power's discussion of the role of idealizations, n15 and Jacques Lenoble's objections based on a critique of reason that concerns the entire approach of a theory of communicative action. n16 Like Lenoble, David Rasmussen, n17 Robert Alexy, n18 and Gunther Teubner n19 give me the occasion, in Section Five, to delve once more into the logic of application discourses. In Section Six, I will examine both Ulrich Preu's n20 and Gunter Frankenberg's n21 discussion of the different aspects of the relation between private and public autonomy, and Dick Howard's n22 and Gabriel Motzkin's n23 analysis of the political content of my legal theory. Finally, in Section Seven, I respond to the sociological objections that Mark Gould n24 brings from a left-Parsonian perspective and that Niklas Luhmann n25 raises from the standpoint of systems theory. [*1480] I. The Good and the Right A. My friend Richard Bernstein is second to none in his acute knowledge of my work. Bernstein follows and interprets my publications with great hermeneutical sensibility, n26 and he convincingly situates them in contemporary discussions. n27 For more than two decades Bernstein and I have been companions in a philosophical exchange that has left its mark on my work. Since our first conversation, Bernstein has continually presented me with good arguments to "detranscendentalize" the Kantian heritage. Again and again, entirely in keeping with the Hegelian spirit of pragmatism, Bernstein sought to dissolve rigid dichotomies. Distinctions have no value in and of themselves, but must prove themselves through the problems they help us solve. Like C.S. Peirce, he asked: What is the difference that makes a difference? n28 Again Bernstein asks this here, though now evidently with growing impatience. Bernstein objects to two things: (i) the neutrality claim of a proceduralism that in fact requires a specific democratic ethos; and (ii) the abstract distinction between moral and ethical issues, which in his opinion is an empty distinction that misses the real problems. n29 1. In Bernstein's view, specific procedures and communicative presuppositions can ground the presumption that the outcomes of democratic opinion- and will-formation are rational (in the sense of well-informed and impartial) only if the participating citizens are imbued with a "democratic ethos." n30 Citizens must be motivated by civic virtues, i.e., generalized value-orientations that do not yet predetermine anything about individual norms. n31 If this thesis is read in its weaker sense, it does not present any objection to my position. A political system based on the rule of law is not self- [*1481] contained, but also depends on "a liberal political culture" and a population accustomed to freedom. Indeed, it depends on "the initiatives of opinion-building associations" and corresponding patterns of socialization - "deliberative politics is internally connected with contexts of a rationalized lifeworld that meets it halfway." n32 If one also recalls what I said in The Theory of Communicative Action n33 regarding the rationalization of lifeworlds, then one can easily understand this accommodating lifeworld context in the sense of a "postconventional Sittlichkeit" or a democratic ethos. n34 As I see it, systematic reasons make it necessary to speak of democratic processes as embedded in a "constitutional patriotism." This requirement arises from the fact that even basic political rights take the form of subjective rights and thus can be interpreted as individual liberties. In modern legal orders, citizens are free to determine how they will exercise their rights of communication and participation. An orientation to the common good may be called for, but it cannot be made into a legal duty. Nevertheless, this orientation is necessary to a certain degree, because democratic legislation draws its legitimating force solely from a process in which citizens reach an understanding about the regulation of their common life. Consequently, the emergence of legitimacy from legality ceases to be paradoxical only if the political culture disposes citizens not just to take the self-interested attitude of market participants, but also to exercise their political liberties in the service of mutual understanding, i.e., to engage in what Kant called the "public use of reason." This "also" is what separates the weak reading from the strong, classical republican reading that Bernstein favors. To sharpen his thesis into an objection, Bernstein must ultimately place the burden of democratically legitimating law entirely on the political virtues of united citizens. By contrast, in explaining the democratic process, discourse theory employs a structuralist argument that relieves citizens of the Rousseauian expectation of virtue - the orientation to the common good only needs to be exacted in small increments insofar as practical reason withdraws from the hearts and heads of collective or individual actors into the procedures and forms of communication of political opinion- and will- [*1482] formation. In other words, practical reason shifts from the individual level of ethical motivations and insights to the social level of gathering and processing information. This signifies a certain intellectualization. That is, processes of deliberation and decision making must be set up in such a way that discourses and bargaining function like a filter: only those topics and contributions that are supposed "to count" in reaching a decision are permitted to pass through. The false realism that rejects the meaning of democratic self-determination as inherently "idealistic" can be better countered if we have a normative account that replaces the expectation of virtue with a supposition of rationality. Consequently, I oppose the republican tradition only insofar as I shift the burden of justifying the effectiveness of practical reason from the mentality of citizens to the deliberative forms of politics. Contrary to what Bernstein believes, however, this proceduralism does not mean that the citizens' practice of self-determination has been normatively neutralized. To be sure, the normative expectation of legitimate lawmaking is primarily linked with the communicative arrangement and not with the competence of the participating actors (even though the procedures and processes are not self-supporting but must be embedded in an open political culture). However, this mode of lawmaking, which is supposed to secure the equal autonomy of all, has a strong normative content. Democratic procedure justifies a presumption of rationality in the sense that it promises neutrality, that is, impartial outcomes: procedural rationality is supposed to guarantee justice in that it provides an impartial regulation of practical questions. 2. Bernstein has a further misgiving that is directed not so much at the proceduralist conception itself as at the understanding of political justice associated with it. Practical reason embodied in procedures and processes inherently refers to a justice (in both the moral and legal senses) that points beyond the concrete ethos of a particular community or the worldview articulated in a particular tradition and form of life. To make this clear, I distinguish between moral questions of justice and ethical questions of self-understanding. When we approach a problem as a moral question, we ask which regulation lies in the equal interest of all (or what is "equally good for all"). However, when dealing with ethical questions, we weigh alternatives from the perspective of individuals or collectivities that are seeking to confirm their identity and that want to [*1483] know which life they should lead in light of who they are and want to be (or what "is good for me/us on the whole and in the long run"). Each question corresponds to a different perspective or standpoint. Whereas questions of the "good life" are inscribed with the perspectival worldview and self-interpretation of a first-person singular or plural, justice questions can be judged impartially only if equal consideration is given to the worldviews and self-interpretations of all participants (hence George Herbert Mead's requirement of an "ideal perspective-taking"). Bernstein does not dispute this analytic distinction as such. Rather, he maintains that having hypostatized it, I fail to use it in a meaningful way, succumbing to the "myth of the framework." n35 To begin with, I must clear up a misunderstanding. Questions of ethical self-understanding are context-dependent in a different sense than moral questions. This is because ethical questions arise within the horizon of a personal life-history or an intersubjectively shared form of life and can be answered only by referring to this pre-existing context. Naturally, even in ethical discourses we must adopt a reflective attitude not burdened by the pressures of immediate interests and imperatives to act; we must, to a certain extent, interrupt the naive conduct of life and gain some distance from our own present life context. But this distancing from the network of our self-formation cannot (and need not) go as deep as the distancing we undertake in moral reflection where we adopt a hypothetical attitude toward the problematic validity of individual norms. It is precisely pragmatism that teaches us that we cannot make an object of our identity and entire lifeworld by the fiat of a "paper doubt." The sole issue of dispute is whether we can raise and answer moral questions only within the horizon of our own ethically articulated, and thus particular, worldview and self-interpretation, or whether we can attempt to expand this interpretive horizon by taking the moral point of view, indeed so radically that, to use Gadamer's term, our horizon "fuses" with the horizons of all other persons. On this question of the priority of the right over the good, Bernstein is not entirely clear: "If I take my own life history as a Jew or an American ... I certainly do not restrict myself to questions concerning my fellow Jews, Americans, etc. I want also to understand my responsibilities and obligations to those who are not members of the identified group." n36 To begin with, this quota- [*1484] tion simply states that justice questions arise for us as persons with particular self-interpretations and worldviews, and that we understand these questions against this horizon. However, whether we can also adequately answer the question within the given horizon is not trivial. So long as I want to become clear about my identity as a Jew or a Protestant, American or German, it is neither necessary nor possible to transcend these particular horizons. But questions regarding our moral obligations toward Bosnian refugees or the homeless, and also legal questions such as how to regulate new forms of duress (e.g., spousal abuse), have to do with the legitimacy of expectations and claims that we do not just have toward one another as members, but that we also direct toward strangers, across great geographical, historical, cultural, and social distances. In this case, it is not a matter of what is "good" for us as belonging to a collectivity (distinguished by its own ethos). Rather, it is a matter of what is "right" for all, whether all those who belong to the universe of speaking and acting subjects or those of a local, or if necessary, even global legal community. In judging such questions of justice we seek an impartial solution, which must be able to gain the considered assent of all participants (and those affected) in a noncoercive dialogue conducted under symmetrical conditions of mutual recognition. Currently, there are three positions on this question. (1) As long as each idea of justice is inseparably permeated by a particular conception of the good, then even when we judge justice questions we cannot escape the given horizon of our own self-interpretation and understanding of the world. In that case, an agreement (Einverstandnis) between two parties with different backgrounds can come about only through assimilation, insofar as their standards are assimilated to ours n37 or through conversion, insofar as we surrender our standards in favor of theirs. n38 (2) However, as soon as we take into consideration the plurality of "modern" worldviews that can be tolerant toward one another because of their inherently universalist potentials, we may count on an overlapping consensus in questions of political justice. n39 Religious freedom provides the [*1485] prime example. Because a certain expansion of horizons (defined by religions and worldviews that have become reflexive) is presupposed here, a rationally motivated consonance (Ubereinstimmung) is the result. However, this happens only in such a way that the same principled solutions are accepted by each party for respectively different reasons. (3) Finally, the manner in which discourse theory introduces the distinction between moral and ethical questions and maintains the priority of justice over the good means that the logic of justice questions becomes dynamic. This demands the progressive expansion of horizons: against the horizon of their respective self-interpretations and worldviews, the different parties refer to a presumptively shared moral point of view that, under the symmetrical conditions of discourse (and mutual learning), requires an ever broader decentering of the different perspectives. G.H. Mead spoke in this regard of the appeal to an ever wider community. n40 Contemporary discussions on the topic of "multiculturalism" make it clear that distinguishing between moral and ethical questions in the area of political justice is certainly not trivial, but "makes a difference." n41 This is evident in the efforts to find peaceful solutions to ethnic conflicts in Palestine and the Balkans. This was also evident in the Vienna Conference on Human Rights, where Asian and African participants argued with the representatives of Western societies over the interpretation and application of basic rights that, in themselves, had been accepted. B. It is no accident that Frank Michelman is one of the three or four contemporary authors whom I have cited most frequently. Michelman's works have taught me the most about deliberative politics, and through reading them I hav
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