Jurgen Habermas on Law and Morality Some (1)

Symposium on Habermas

Introduction to the Utrecht Symposium on
Habermas
Willem van Reijen
Having completed his primary task with the publication of his
magnum opus - the Theorie des kommunikativen Handelns
(1981) - Habermas turned to a closer examination of the history
of philosophy and the contemporary meaning of philosophy.
Habermas presented the critical evaluation of 'old European' paradigms in Der philosophische Diskurs der Moderne in 1985. The results
of this attempt to situate political and social philosophy became the
Tanner Lectures in 1988, which were published in the same year as
Nachmetaphysisches Denken.
In Der philosophische Diskurs der Moderne, Habermas sketched
a fascinating panorama of Western philosophy from its origins,
concentrating on developments after Hegel. A central assumption
here is the thesis that the metaphysical points of departure and the
paradigms of consciousness of German idealism have become
untenable. The concept of Reason, which had a central place in philosophy at the beginning of the nineteenth century, helped the bourgeoisie to recognize their legitimate interests and also offered a certain
compensation for the loss of freedom and values, which Max Weber
was to diagnose later. It eventually lost this problem-solving capacity,

when it became clear that Reason only derived its legitimation from
criteria of consistency that are internal to philosophy itself.
Nietzsche therefore decided that the idealistic programme could
not be renewed from within, but only by completely discarding this
worn-out notiun. For Habermas, the problems raised by such a disas-

trous discussion were almost a fatal development. Philosophy was
transformed into mythology and fused with art - Wagner's concept
of the total work of art (Gesamtkunstwerk) - to the extent that it
has exhausted and played Ollt its argumentative potential. Much later
with Heidegger and Derrida, verifiable knowledge became sacrificed
to 'special knowledge' for a select elite.
Theory. Culture & Society (SAGE, London, Newbury Park and New Delhi), Vol. 7
(1990), 91-93.

92

Theory, Culture & Society

In Nachmetaphysisches Denken, Habermas clarified his own theory

in relation to the foundations of other language philosophies and
social philosophies (for example Searle and Mead) and set it apart
from competing approaches (above all Rorty).
T he Hegelian programme of a dialectical reconciliation of opposites, although under alternative presuppositions than previously
elaborated, stands in a central position. T his reconciliation can only
be realized if we give a new interpretation to the classical concept
of rationality as a discourse and the criterion that we want to
apply to it , if we want to legitimize truth, legality and authe nticity.
This idea of a communicative legitimation excludes, according to
Habermas, Rorty's (and others') 'radical contextual ism'. Habermas
conjectures that each form of post modern thought is inevitably
conservative, and even possibly a reactionary philosophy which entails
political withdrawal. Habermas, therefore, insists on judging the
'linguistic turn' positively, still emphasizing via the concept of the
life world that we consider speech to be the medium that facilitates
communicative action created by a consensus.
T hese contributions from the Utrecht Symposium cover all these
aspects which Habermas has discussed in the Tanner lectures and
in his most recent published works. The intellectual exchange between
Habermas and the various speakers was delivered before an appreciative audience in laarbeurs central shopping arena in Utrecht in

the Netherlands, where Habermas has been a frequent guest. The
proceedings were primarily conducted in German.
In the following articles, which Theory, Culture & Society is
publishing for the first time in English translation, Professor van
Reijen confronts Habermas's concept of a language - philosophy
foundation for political philosophy with Lyotard's approach. His
comparison points to the different interpretations of speech which
are to ·be found in Habermas and Lyotard. Whereas linguistic communication is a theme in Habermas's philosophy, Lyotard developed
an 'Ontology of the Phrase', that itself struggles against definite applications of speech for realizing emancipatory goals.
Wibren van der Burg discusses the comparison between law and
morality; he attempts to point out that 'juridification' (Verrechtlichung) does not, as Habermas thinks, have negative consequences
under all circumstances. He wants to show that Habermas's concept
of communication, more than Habermas himself believes, can be
positively combined with juridification.
Wiljo Doeleman seeks to show that psychoanalytic perspectives,

w
eli

pu

th

Tn

van Reijen, Introduction to the Utrecht Symposium

93

which, in contrast to his early work, Habermas has to a great extent
eliminated, could very well claim a place in his reflections.
Harry Kunneman finally criticizes Habermas, who in his latest
publications, has neglected an important theme from his early work:
the relationship of knowledge to technology.

Translated by Bryan S. Turner

T
5 AGE

Z5

YEARS

Of

INTERNATIONAL

p

The Tourist Gaze

PUBLISHING

Leisure and Travel in
Contemporary Societies
John UITY University of Lancaster
Drawing an analogy with Foucault's concept of
the gaze, this book focuses on the 'tourist gaze':
that there are systematic ways of 'seeing' what
we as tourists look at, and that these ways of
seeing can be described and explained. Urry

develops this analysis through various levels historical, economic, social, cullural and visual.

Fo
Co

sod

truj

WI

dis

Mass tourism is charted from its origins in the
English seaside resorts to its development as a
global industry. The economic impact and
complex social relations involved in international
of
tourism are explored. Changing ｰ｡ｴｾｭｳ＠
tourism are shown to be connected to the broader

cu ltural changes of poslmodernism and related to
the role of the service and middle classes. The
author argues that we are seeing a
universalization of the tourist gaze and increasing
confusion between ' touri sm' as it is
conventionall y understood and a host of other
social practices - shopping, sport, culture,
hobbies, leisure and education.
August 1990 . 192 pages
Clolh (S039-81S2-1)· £25_00
Paper (S039-S1S3-X) . £9.95

opt
ｴｨ ｾ＠
I
on
｡ｾ＠

a
co

ch
th I

po
qu

be
rna

see
de
co

fe
eli
Fr
ev

D
a

SAGE Publications Ltd
6 Bonhill Street
London EC2A 4PU

h

ｾ＠

(19

T
Philosophical-Political Polytheism: Habermas
versus Lyotard
Willem van Reijen
Foreword
Comparing two philosophical systems is a delicate matter. A philosophical system by definition lays claim to being able to prove the
truth of judgements. In this respect it comes into absolute competition
with other systems. One also sees that philosophers who engage in
disputes with one another are not merely satisfied to show that their

opponent is mistaken in certain points, but instead they claim that
the other's philosophy is a total failure, i.e. no philosophy at all. Thus
one could conclude that the need to support without reservations
a particular system is unavoidable. What can be the basis for such
a decision , if it is to be made responsibly? Ultimately only by
comparing at least two philosophies (perhaps even perpetually). This
choice is even more delicate if we are confronted with two philosophies
that have political implications. These concern the distribution of
power and money. And as Max Weber was already aware, it is a
question of distributing both unequally, yet legitimately. It would
be naive to believe that the justification for a concrete distribution
model had nothing to do with epistemological options. As we shall
see, the opposite is the case.
It is no less difficult to compare political philosophies which are
developed in different states under different cultural and political
conditions. Intercultural misunderstandings regarding political preferences then easily converge with (national) prejudices, generally
cliches. This is true in exemplary fashion of the relationship between
French and German culture, philosophy and politics. The latest grand
event in the Paris Centre Beaubourg (at which French philosopher
Derrida, among others, had discussions with Germans, including Apel

and Frank) showed it dramatically. This meeting demonstrated just
how right Max Weber was when he said 'How one would go about

Theory, Culture & Society (SAGE, London , Newbury Park and N ew Delhi), Vol. 7
(1990), 95-103.

a
96

Theory, Culture & Society

distinguishing on a scientific basis the value of French and German
culture, I don't know. Here different gods are quarrelling and will
continue to do so for all time.'
The quarrelling gods, a theme of Max Weber's which became
famous as 'new polytheism', were not mythical forces for him but
rather objectified viewpoints. The quarrel continues - Weber's interpretation has lost none of its validity. That is the reason why we can

th9
COli

col
st
T
cI
ret
Phil
of

precisely designate what is at stake in the controversy between the

moderns and the postmoderns in general, and specifically in the case
of political philosophy .

. I

10

1

the

The Moderns
The defenders of the project of modernity, Apel, Frank, Schnaedel bach and, above all of course, Habermas, conceive of themselves
as the legitimate heirs of the Enlightenment. They consider it their
task to increase knowledge of people and society, and to apply it
for the good of humanity. The practical realization of this programme
is underpinned theoretically by the assumption that we can understand
and influence reality with the help of our thinking, that is our
rationality. Ideology critique in all its varieties plays a central role
here. One can establish philosophically why certain prevailing views
are wrong. That is of course of particular importance if one wishes
to show that certain concrete political goals (social justice, global
respect for human rights, jobs for everyone) cannot be achieved under
current conditions without a fundamental reorientation.
The postmoderns, on the other hand, champion the view that
trust in philosophy and science, as media of self-clarification
(Selbstverstiindigung) and instruments for defining action, must be
relativized. To use a common metaphor often employed for clarifying
the Kantian idea of sensory perception, the rationality practised in
philosophy and science functions like spectacles which one, in the

I

su ·
as

ｾＴ＠
de
we
thJ

lod
ye
tic
op
'0

cI

co
th
st
go
to

Kantian approach, cannot remove. The postmoderns of course,

H'

attempt to make visible what one would see if one could take off
the spectacles. In any case the unity of the image as constituted by
the spectacles would disintegrate into many fragments.
The uniform interpretations of reality according to the law of
causality, on the basis of a mathematical structure of reality, as well
as the requirement of performativity of statements do not disappear
completely, but they are relativized in their claims.
For the practical, political and socio-philosophical claims of
philosophy the following contrast results: the moderns proceed from

pr
h
p

ex
co
su
ce

van Reijen , Philosophical-Political Polytheism

97

the assumption that they can diagnose and analyse undesirable social
conditions; that they can make suggestions for improving these
conditions on the basis of such analyses, and that they also can
state - at least in general terms - how the goals are to be attained.
They cling theoretically to, the possibility of legitimizing validity
claims. The postmoderns believe they can establish that it is theoretically untenable to cling to the previously named claims of the
philosophy of Enlightenment, and that the belief in the possibility
of influencing the world in a positive and focused way has been refuted
in practice. They consider the theoretical claims untenable because
there is no meta-discourse under which all discourses could be
subsumed in the sense of a universalization. The practical claims,
as can be ascertained empirically have come to ruin in the
Gulag Archipelago, Auschwitz, Prague 1956, May 1968, Solidarity,
I

etc.

H we attempt not to be content with these contrasts, but to
determine the controversial opinions somewhat more accurately. then
we can state tentatively that the quarrel of the gods revolves around
the issue of whether or not we can have reality under control philosophically, that is theoretically and practically . Habermas believes
yes, Lyotard no. According to Habermas, in relativizing the analytical, diagnostic and therapeutic claims of philosophy Lyotard is
opening the door to conservative, even reactionary strategies. The
'other of reason' takes power. Whoever sacrifices the universalist
claims of reason, validity claims in general, that is, the demand that
conflicts should be solved with the aid of the better argument, and '
thus no longer feels bound to the idea of the bourgeois constitutional
state, takes leave from precisely this rationality and entrusts political
goals to manipulators. In turn, Lyotard accuses Habermas 'If wanting
to revive the terror of reason.

Despite all their undeniable differences, the approaches of
Habermas and Lyotard, it seems, display one point in common. Both
proceed from language as a medium in which the self-concept of
humanity can be clarified, and in consequence, both begin with a
philosophy of language.
On closer inspection, however. this common trait will soon be
exhausted. For Habermas, language is the medium for intersubjective
communication. This view makes it possible to justify claims of
substantiation and of obligation, which classical philosophy, proceeding from the primacy of thought, could not legitimate.
For Lyotard language in the multiplicity of its concretizations is

98

Theory, Culture & Society

precisely exemplary for a reality which is not conceivable in models
of rational articulation.

on th
stanti

A More Detailed Sketch of the Controversial Approaches of
Habermas and Lyotard
Lyotard's reproach to Habermas, 'he is practising the terror of reason',
must astonish us at first. No one can speak of terror where, as
Habermas urges, people are solving conllicts with rational arguments
instead of force. It also seems difficult to speak of reason, which
Habermas is allegedly advocating. Habermas dismisses reason as a
vital force in history and, to a greater degree than almost any social
theorist before him, differentiates types of action, spheres of action
and validity claims. To each of these he ascribes not only a developmental dynamics, but also in many cases a logic of its own.
'Standardized thinking' cannot easily be imputed to this procedure.
Now one could object that these differentiations are really analytical
ones which more or less owe their existence to the imputation that
there is a diachronically and synchronically embracing unity - the
rational tie that binds all these elements together - nothing other
than reason.
This view seems consistent with the common cliche that Habermas
supports consensus, and Lyotard dissent. This type of contrast
disappears. however, when one points out that consensus presupposes
dissent and vice versa . But from this one cannot conclude that
Habermas's and Lyotard's approaches mutually complement each
other according to the same pattern, much less that Habermas and
Lyotard are substantiaHy in agreement 'in God's eyes', as is sometimes
suggested. The thesis that consensus presupposes dissent and vice
versa applies within all approaches that conceive of themselves as
continuations of the Enlightenment, and then it is a trivialism. What
is at stake in the controversy between Habermas and Lyotard,
however, is the range, the applicability and the self-justification of
the approach of modernity. Lyotard's accusations against Habermas
show a striking parallel to the objections of classical scepticism against
the one-sidedness which they believe is created by the dominance of
rational, procedural methods. To counter this partiality, sceptics
introduce a supplement, which is often both moral and aesthetic in
nature (Schiller, the Wittgenstein of the Tracta/us, Musil, Adorno).
This is exactly what Lyotard undertakes. That is what I would now
like to interpret in more detail. As far as the controversy between
Habermas and Lyotard is concerned, I concentrate my discussion

Onl
When
and c
thaI
the b,
disce !
asses
oppo
Soq
the ex!
non-g
deoid

9

ｇ･ｲ

ｾ＠

cannd

I

there
orin1
theorl

actual
Th\
locate
viewp:

of p
On ｴｾ＠
Habe
Lyot
In
stanti

claim
other

canva
actio
ｳｴｲｩｶ

ｾ＠
ｌｹｾ＠

spher
ｩｮｴ･ｲｾ＠

no re

that t

van Reijen, Philosophical-Political Polytheism

99

on the disputes between them on the possibility and role of substantiation, or groundin g (8egrundung).
On the Substantive Aspects
When Lyotard says with respect to the ideals of the democratic social
and constitutional state as defended by Habermas, 'the cause is good',
that certainly does not mean that he, li ke Habermas, believes this is
the hest of all possib le val ues, or at least o ne to which there is no
discernible a lternative today. By no means does it imply that Lyotard
assesses the ac hievements of the Enlightenment positively. The
opposite is the case (van Reijen and Veerman, 1988).'
Socialization models of other cultures are perhaps not worse, to
the extent that one considers com parisons between the occidental and
non-occidental value systems possible - which Lyotard resol utely
denies (we have already seen how difficult a comparison between West
Germany and France is). But even seen purely from the inside, one
cannot determine, according to Lyotard, whether, viewed historically,
there has been an 'improvement of Central Europe' (Oswald Wiener),
or indeed whether one can be expected. In fact one cannot determine
theoretically whether in respect to the present situation , there is an
actual or conceivable unity in diversity.
The unbridgeable difference between Habermas and Lyotard is not
located only or primarily on the level of substantiall y determinable
viewpoints. but rather in their respective assessment of the possibilities
of philosophical substantiation .
On the Problematic of Substantiation
Habermas considers it indispensable to gro und validity claims
Lyotard considers this to be impossible.
In this case Habermas decides in favour of a weak type of substantiation, by comparison to Apel's transcendental pragmatics. The
claims of truth and correctness for the utterances of ourselves and
others. as well as the claims of authent icity for the participants in
conversation, result from the practice of speaking, communicative
action, and from nothing else. T hus it is declared and gro unded that
striving for agreement is the presupposition and goal of human action.
Lyotard considers any claim to substantiation unredeemable. T he
spheres of the political, the economic and the aest hetic do have a purely
internal consistency (logic), practically as well as theoretically, but
no relations of substantiation . They are also so basically different
that their respective logic and dynamics do not permit one to contain

100

Theory, Culture & Society

their particular concrete consistency within the concept of an overarching consistency. [t is even less possible to suggest a unity that
does not exist with the abstract concept of a relation of substantiation,
or reason (Welsch, 1987). The difference between Habermas and
Lyotard thus lies more in the assessment of the possibility and
significance of philosophical substantiation than in the concept of
consistency. This becomes clear if we recall once again what claims
Habermas amI Lyotard represent with their approaches.
Habermas demands of a philosophical reflection that it can be made
operational in research and political practice. [n his opinion this
demand is tenable only if it can be shown that there are relations of
substantiation . Only that guarantees that interventions can be precisely
planned and realized, and that they will have the desired effects.
Lyotard rejects this demand and considers the expectations of interventions which are raised by the moderns illusory (and historically
falsified, to the extent they aim at emancipation) .. He pursues a
philosophy that one can term a postmodern linguistic ontology, as
I have previously characterized it. The only reality (the only Being)
which we know is the linguistic one. The ontological problematic of
reference, which Habermas resolves with the paradigm of intersubjectivity, does not exist for Lyotard. We can no more determine
whether our judgements correspond to the 'objective' world than
whether subjects really understand one another. In these respects
Lyotard adheres to the very difficult demands of classical metaphysics.
Either the truth of statements can be proven absolutely or any talk
of truth (and morality) reveals itself as mere pragmatics. In fact,
Lyotard considers the claims of the provability of statements
unredeemable, and accepts no substitute in the form of a Habermasian
pragmatic solution. With his analysis of the 'antagonism', Lyotard
varies models of classical scepticism. He proceeds parallel to
nominalism by declaring the problematic of reference a pseudoquestion; he varies it by making linguistic expression, rather than ideas,
the starting point and theme of philosophical reflection. Scepticism
is also evident in Lyotard's refusal to accept criteria of obligation for
true judgements, or even the possibility of such criteria. Lyotard
proceeds no less sceptically in regard to moral demands, or their
theoretical foundation (ethics).
Every spoken sentence causes a wrong (lorI), because its realization
excludes all the other possible sentences from reality (Being) . What
we can test in each case is the consistency of a sentence (its suitability;
sich schicken), in the trivial but also the pragmatic sense, but not its

ｴ ｾ＠

Sl
t

a
01
c

a
b

c\
to

!

m

a·

H
a
it
al
de

pi

it
u

H
'r

H

o
it
se
po
fr

van Reijen, Philosophical-Political Polytheism

101

justifiability (Begriindbarkeit). This means that an action, its moral
respect and an ethical judgement can never be substantiated in any
but the pragmatic sense, and thus not at all in the strict sense.
Formulated another way, this means that everyone who acts and
judges makes himself guilty, measured on an absolute scale, and after
he has recognized the unfulfillability of absolute demands, not guilty
at all. That is Lyotard's practical philosophical paradox, to which
by the way there corresponds a theoretical one. The logical and the

practical- philosophical paradox cannot be solved rationally, because
they are consequences of rational considerations.

The sacrifice of the requirement for substantiation does make one
thing clear, however: one must make a decision for a political value
system and a philosophical interpretation. This decision - contrary
to Habermas's opinion - has nothing to do with the decision ism of
Carl Schmitt and the present-day Neo-Aristotelians (conservatives
of whatever stripe), since the Lyotardian decision occurs in the
consciousness that the individual choice can neither be founded on
a naturally pregiven friend-enemy relationship which could be traced
back to self-preservation, nor on any other natural essential
characteristic of mankind. It is completely contingent with respect
to an imagined absolute, and obliges us for that reason to be cognitively and ethically aware of the many alternatives, i.e. not to favour
anyone over the others . Lyotard also means that with respect to
Habermas's approach when he says the cause is good, but the
arguments are not.

Under the historical conditions in the Federal Republic of Germany
it is politically delicate to say that the choice of a political model is
a matter of decision. The political climate is too burdened by Schmitt's
decisionism which was closely tied to Fascism and Heidegger's
philosophy, which was fundamentally related to it. Philosophically
it is rather problematic to consider claims of substantiation
unredeemable . What is the point of philosophy in that case?
The consideration of the differences between the approaches of
Habermas and Lyotard can also teach us that 'substantiation',

'rationalization' and 'generalization' must be differentiated more than
Habermas does . One can, in my opinion, quite well generalize values,

or at least espouse and practise a pluralism of values without founding
it rationally. The decision to accept or not to accept certain consequences of a politics (in the broadest sense) does not stem from a
prior moral consensus formation, as Habermas believes, but
from socialized motivational formations (see Dux, 1986).

102

Theory, Culture & Society

Beyond that, the question arises whether, as Habermas believes,
a rationality is actually inherent to formal procedures which ultimately
has consensus building and democratizing effects. Perha;>s Habermas
is asking too much of philosophy, or the concept of rationality, when
he believes that it should ground requirements of generalization. On
the other hand, Lyotard leaves the possibilities of philosophical
reflection and the demands on it underdetermined when he claims
that evt!rl any attempt at a comparison of various interpretations leads
to a terror. He falsely insinuates that Habermas connects a narrowly
determined substantial unity to the concept of consensus. 'Consensus
formation' is first of all the term for a formal procedure. It is however,
indisputable that Habermas tends to enrich this formality substantively - as for example in the 'Tanner Lectures' (see Habermas,
1988). But even if one points out that this merely leads to a
philosophical founding of the forms of occidental democracy, one
must confess, that even the pluralism practised within that context
is determined in other than formal ways, that is to say, that it favours
certain forms of practice and excludes others.
Rather than being conceived as a compelling substantiation, no
matter how gentle, it seems to me that philosophy is more a heuristic
activity in the sense that it consists of reconstructions of our cognitive
and moral development, inviting empathy and helping us to give
meaning to OUf individual-social activities . These reconstructions are

inescapably tied to goals considered desirable: emancipation,
democracy, human rights. It is clear to many of us, including myself,
that the importance and justification of these ideals must not be
relativized, much less that it would be acceptable to make their
recognition a non-theme of philosophy, as Lyotard does .
A philosophy which cannot defend these values within the framework of a reconstruction is indeed in danger of being appropriated
by fascistic or fascistoid politics. Political neutrality cannot exist
even theoretically.

Note
I. Lyolard cannot accept even human rights as an object of political-philosophical
substantiation.

cr. w.

va n Reijen and D. Veerman (1988).

References
Dux, G. (1986) 'Komm unikativen Vernunft und Inleresse', in A Honneth and H . Joas
(eds) Kommunikalives Handeln. Fran kfurt : Suh rkamp.

van Reij en, Philosophical-Political Polytheism

103

Habermas, J . (1 988) 'Law a nd Morality', Tonner Lec/ureson Hu man Vo/ues, Volume
8. Salt Lake City: University o f Utah Press.
Lyolard, Jea n·Fran.;ois, (1983) Le difJerend. Paris: Les Edit ions de Minuil.
van Reijen, W. and Veerman , D. (1988) 'An Interview with Jea n-Fran.yois Lyolard ',
Theory, Cullure & Society 5(2- 3).
Welsch, W. (1987) Unsere posfmoderne Moderne. Wein heim: Acta Hu ma nil o ra.

Willem van Reijen is Professor of Philosophy at the Uni ve rsity of
Utrecht.

5 AGE

Z5

VEARS Of
. INTERNATIONAl
PUBliSHING

Theories of ModerIlity
and Postmodernity
Edited by Bryan S Thrner University of
Essex
This book encapsulates the recent debate on the

concepts of modernity and postmodernity.
Arguments over modernism and its aftennath are
traced to their origins in art, architecture and
literature. The authors then focus on the
contribution of sociology to tllis cultu ral dispute,
both through the classical theories of Weber and
Simmel and in more recent theory. They examine
the version of modernist rational ity defended in
Habennas's critical theory and contrast it with the
theoretical work of Lyotard and Baudrillard.The
theme of nostalgia as a response to modernization
is explored in terms of the loss of traditional
values, the cri ses of modem society and the rise
of sociology.
The discussion concludes with an exploration of
the implications of tJlese arguments for politics,
citizenship, the status of women and social
change. ThroughoUl, Theories of Modernity and
Poslmodcrnity demonstrates the connections
between traditional problems of sociological
theory and the contemporary debate around
modernity.
June 1990· 192 pages
Cloth (8039-8370-0) . £25.00
Paper (8039-8371-9)' £9.95

SAGE Publications Ltd
6 Bonhill Street
London EC2A 4PU

Jiirgen Habermas on Law and Morality:
Some Critical Comments
Wibren van der Burg
I would like to touch on four themes in my paper: your moral theory,
your legal theory, the relationship between law and morality from
the viewpoint of law and the relationship between law and morality
from the viewpoint of morality.
Morality and Morals
In your essay 'Diskursethik - Notizen zu eioem Begriindungs-

programm' (Discourse Ethics - Notes on a Foundation Programme), you write that the realm of practical questions in the
post-conventional stage of moral consciousness is differentiated into

two parts: morality (Mora/itiil) and morals (Sittlichkeil) (Habermas,
1983a). Moral questions can in principle be decided rationally under
the aspect of the universalizability of interests or that of justice.
Evaluative questions on the other hand appear under the most general
aspect as questions of the good life (or of self-realization), and are
accessible to a rational discussion only within the unproblematic
horizon of a historically concrete form of life or of an individual
conduct of life (Habermas, 1983a: 118). One can also characterize
this difference as the difference between norms of action and value
orientations.

You point out that this division leads to problems, because
the connection between the two realms is lost and a mediation
becomes necessary. Such a mediation can, however, only come about

if the forms of life in the concrete lifeworld are sufficiently
ratjonalized.

In this connection I would like to mention the recent neoAristotelian turn in the Anglo-Saxon world. This turn is a reaction
to a one-sided 'computational rationa l morality'. to the predominant
consequentialist moral theories and above all, to utilitarianism. In

Theory, Culture & Society (SAGE, London. Newbury Park and New Delhi) , Vol. 7
(1990). 105- 111.

106

Theory, Culture & Society

my opinion one can understand this reaction as a renewed emphasis
on concrete morals against a consequentialist moral theory taken

to extremes - and perhaps one-sidedly rationalized.
My question now is how you view this development and, especially,
whether it can be fitted into your Kohlbergian theory of stages. The
development I am speaking of could on the one hand be a reactionary
tendency, reaching back to traditional norms and values and attempting in this way to tame modern rationality from the insufficiently

rationalized lifeworld. Here one could think of Stuart Hampshire
(1983: 99), who ascribes moral force to prohibitions connected with
a 'way of life' because 'it has in history appeared natural and on the
whole still feels natural'.
On the other hand, we could be dealing with a hopeful tendency,
with a sort of catching up in the realm of morals. One could then
understand the turn to a virtue ethics as an autonomous rationaliza-

tion process of morals, as an approach to the rational working out
of forms of life. Here one could think of theories such as those of
G.J. Warnock (1971) or Bernard Williams (1985), even if Warnock
is not a neo-Aristotelian in the strict sense, and Williams is more pes-

simistic about the possibility of the rationalization under discussion
here.
If such a rational theory of morals had once been developed in the form of a rational theory of virtue, for instance - then
it could be connected to your discourse ethics forming a more
general normative theory of action. It does not seem a priori impos-

sible to integrate questions of justice and questions of the good life
once again into a broader action-theoretical perspective. But does

that fit your theory? To summarize: How do you view the latest
neo-Aristotelian turn and how do you unite it with your moral
theory?
Law and Juridification

My second theme is law and the thesis of juridification (Verrechtlichung). I have the impression that your theory of law is not quite
consistent and partially incorrect, because you too often have a

too positivistic and too system-functionalistic image of law. On
the one hand, theoretical considerations of law occur in the first

part of your Theory of Communicative Action and in some recent
essays and lectures, in which you draw a quite positive picture of

law (Habermas, 1988). On the other hand, in the second part of
your Theory of Communicative Action we encounter a very gloomy

van der Burg. Habermas on Law and Morality

107

image. Perhaps for the·sake of the conclusiveness of the argumentation. this image is overly simplified. so that juridification can be
analysed as an apt example of colonializing tendencies.
Thus an ambiguous image of law results: the law is an institution.
but it is also a result-oriented (orienliertes) control medium. which
is jointly responsible for the colonization of the Iifeworld. I would
like to maintain in contrast, that even as a medium law remains
primarily an agreement-oriented (an Versliindigung orientiertes)

medium and thus belongs to the same group within your dualism
of media as influence and value commitment. I would like to cite
four reasons for this assertion. Firstly, law is linguistic. and comprehensive agreement is inherent to language as an immanent telos.

Secondly. law is characterized by the principles of legality. and in
particular. principles such as generality. clarity. promulgation and
freedom from contradiction have as a result th'!J validity claims
of law are subject to critical examination and discussion (cf.
Fuller. 1978). Thirdly. law is capable of incorporating certain normative principles of democratic government as legal principles. and
thus has an immanent resistance to encroachment on principles

of this type (cf. Dworkin. 1978. 1985). Fourthly. law has developed recently in many cases into a more responsive and reflexive

law. and these two legal types have at least a greater openness for
the lifeworld and for democratic discussion in common (Nonet and
Selznick. 1978; Teubner. 1983).
For those reasons I reach the conclusion that it is not completely
impossible. but nevertheless quite improbable that law would
become a completely result-oriented control medium colonializing
or participating in the colonialization of the lifeworld. This conclusion also has consequences for the entire juridification debate.
lf we view law as a medium which is immanently oriented toward
communication or even as an institution, then the expression Cjuridification' acquires a different - and less negative - ring. Then we

can distinguish four types of juridification. of which only one is
negative.

A first type is the juridification of those realms of the lifeworld
in which the media of power and money indisputably playa role:
parental authority. the power of professors. the mass media. If a
certain amount of juridification occurs here. then that appears only
positive to me.

A second type is the juridification of those areas of the Iifeworld
which still rest on uncritically transmitted prejudices. Where for

108

Theory, Culture & Society

instance in the family sphere certa;n conceptions of the roles of men
and women still dominate, then one should in my opinion assent
to their replacement by a rationalized law - such as a modern
divorce law.
A third type is the juridification of an already rationalized ·part
of the lifeworld by a less rational law. For instance, teaching and
research at. Netherlands universities 3re adapted to economic needs
by one centralized decree after the other. Your theory seems to refer
only to this type of juridification, and only here do there appear
to be negative consequences.
A fourth type is the juridification of politics and the economy .
To me this type also appears positive, because it replaces media not
at all oriented toward comprehensive agreement with one that is at
least partially so oriented. That means the realm of the lifeworld
enlarges. This does not happen by the media of power and money
being completely replaced, but by the subordination of their effects
to certain marginal conditions. through which the worst damage to
the lifeworld can be avoided .
In this way a decidedly more positive image of law and juridification results than that which you draw in the second part of
your Theory oj Communicative Action. This more positive analysis
also seems more compatible with the first part of your Theory oj
Communicative Action and your recent essays.
Law and Morality from the Legal Perspective
Thus I have reached my third theme: the relationship between law
and morality. as seen from the law. I would like to confine this topic
to an important complex of moral and legal problems: the area of
bioethics. in connection with which we have had now for several
years our Centre for Bioethics and Health Law here in Utrecht. I
am thinking here of issues such as euthanasia. AIDS or animal
experimentation. In the area of bioethics there exists a considerable
entanglement of legal and moral problems. Law and morality are
not yet always sharply differentiated.
That is exactly the reason one can bring this area into relation with
your legal theory. because this theory maintains: law is differentiated.
but it must always remain connected to morality. and a considerable
part of the sources of legitimation for law lies in the feedback to
a proceduralistically conceived morality.
In this connection. I would like to raise two questions. Firstly.
are bioethical questions actually questions which can and should

b
th
a

w
a

van der Burg, Habermas on Law and Morality

109

be answered solely from a universalist moral point of view, or are

they questions which ought to be reckoned with morals, because
answering them is very much connected with personal life projects,
with ways of life and concrete social situations. Even if we assume
that one can arrive at satisfactory a nd relatively clear solutions in
an ideal discourse situation, does it not still become impossible to
reach good results in concrete, real situations, because of the fundamental contrafacticity of the ideal situation, if thest: results are based

only on a proceduralistic morality. Are we not therefore compelled
to appeal to concrete morals, if possible to a rationalized concrete
morality? Put a bit more fundamentally: is the previously suggested
synthesis of ethics and morality - the synthesis in a richer normative theory of action -not virtually inescapable for questions of this
kind?
Secondly: is the circumstance that law, ethics and politics are so
tightly entangled in this area an indication that they are insufficiently
rationalized, a symptom of backwardness, or is the entanglement
instead the harbinger of a reflexive law, a legal system in which
fundamental questions are solved as much as possible in discursive
procedures between the parties or their representatives? Put another

way: is it necessary to divide law, morality and politics more clearly
in order to solve these problems, or should we consider it positive
that they are so tightly entwined?
Law and Morality from the Moral Perspective
In conclusion the fourth theme, the relationship between law and
morality, as seen from the moral point of view, more precisely: the

questions of political obligation and civil disobedience. In several
essays you have dealt with the 'hot autumn', the protest actions in
1983 against the stationing of the new generation of nuclear weapons
in the Federal Republic, the so-called 'theater nuclear modernization',
which can now be eliminated (Habermas, 1983b). It is striking
that you appeal there to the Rawlsian theory. It is doubtful to
me that this quite narrow conception of civil disobedience fits well
into your theory.
T he theory of John Rawls is rooted after all in the analysis of a
nearly ideal society and in the idea of a social contract. In your essay
you also advance an argument for basing the duty of obedience not
on a social contract, but on universalist principles . With that , you
have in part already left Rawls's theory behind.
My main question here relates to your analysis of the current

-,
110

Theory, Culture & Society

problems that bring about civil disobedience. You say quite rightly
that one is not concerned only with protests against concrete measures,
but with a deep-seated protest against the predominant technological,
high capitalist form of life. What is at stake is thus a confrontation
of different forms of life. You reach the conclusion that in such a
case essential functional and validity conditions of the majority
principle are violated. But you do not offer a real solution to this
contlict, and I have the impression that you cannot offer one within
the bounds of your theory. Must morality and law, if they are based
solely on universalist principles, not of necessity remain insufficient

in questions of this type because they leave no space for morals?
Or in Ronald Dworkin's (1985: 107) words: does a universalist
morality offer the possibility of justifying or criticizing 'integritybased civil disobedience', a disobedience founded on individual or
social integrity? To the extent of my knowledge, it is necessary that
your moral theory - and perhaps your legal theory also - be
expanded, so that morals can playa more important part in it.

Translated by Mark Ritter

Note
lowe a special debt of graliludc 10 Professor Robert Heeger, who crilicized and corrected
(his article.

References
Dworkin, R. (1978) Taking Rights Seriously. Cambridge, MA: Harvard University
Press.
Dworkin, R. (1985) A Mal/ero! Principle. Cambridge, MA: Harvard University Press.
Fuller, Lon L. (1978) The Morality of Law. New Haven, CT: Yale University Press .
I-Iabermas, J. (1983a) Mnralbewu5s/sein und kommunikatives Handeln. Frankfurt:
Suhrkamp.

Habermas, J. (1983b) 'Ziviler Ungehorsam - Testfall fUr den demokratischen
Rechtsstaat. Wider den autoritaren Legalismus in der Bundesrepublik' (Civil
Disobedience - Test Case for the Democratic Constitutional Slate), in P. Glotz
(ed .) Ziviler Ungehorsam im Rechlsslaal. Frankfurt: Suhrkamp.
Habermas, J. (1988) The Tanner Lectures on Human Values, Volume 8. Salt Lake
City, UT: University of Utah Press .
Hampshire, Stuart (1983) 'Morality and Pessimism', in Morality and Con/lict. Oxford:
Blacl+well .
Nonet. Philippe and Selznick, Philip (1978) Law and Society in Transilion: Towards
Responsive Law. New York: Harper and Row.

van der Burg, Habermas on Law and Morality

III

Teubner, Gunther (1983) 'Substantive and Renexive Elements in Modern Law', Law
and Society .Review 17(2): 239-85.
Warnock, G.J. (197 1) The Object oj Morality. London: Methuen.
Williams, Bernard (l985) Ethics and the Limits of Philosophy. London: Fontana.

Wibren van der Burg is research fellow at the Department of
Philosophy and the Centre for Bioethics and Health Law, University of Utrecht, Net herlands.

SAG E

Z5
YEA.RS

OF

INTUIN ATION A l

PU 8 L1 SHING

EVERYDAY
UNDERSTANDING
Social and Scientific
Implications
Gun R Semin and Kenneth J Gergen
Editors
Investigators from a variety of backgrounds
are brought together in this volume to
explore the nature of people's everyday
understandings of themselves and their
social worlds, and the relationship between
these understandings and scientific theorizing.
What are the origins and implications of
people's commonsense theories about, for
example, personality, intelligence, child
development? How do such theories diffe r
from those developed by scientists? Is it
appropri ate to value scientific theOJizing
above lay theorizing? If we recognize that
both are social and cultural artifacts, does
this undermine the usefulness of distinctions
between their respective roles and status?
The vol ume elucidates signi ficant strands
in the current debates about lay theories. In
so doing it also addresses fundamental
questions about the nature of language,
cognition, culture and the foundations of
social and scientific know ledge.
Inquiries in Social Construction
April 1990 • 256 pages
Cloth (8039-8236-4) £27.50
Paper (8039·8237·2) £10.95

SAGE Publications Ltd
6 Bonhill Street
London EC2A 4PU

Theories of Communicative Action and
Psychoanalysis
Wi/jo Doeleman
The Theory of Communicative Action with its formal pragmatism.
its interactionist account of identity and its normative foundations,

raises the question of psychoanalysis as a critically reflexive psychology. This implies a reformulation of the basic categories of
psychoanalysis. Habermas's thinking derives from his earlier work
where the scientism of Freud's meta psychology was criticized.
Habermas rejected or relativized the theories of energy and the
instincts, and reinterpreted the structural model of the ego, the id
and the superego along the lines of language and communicative
theory. Where Freud held to a conceptualization of the relation of
the ego to inner states (the id and instincts), Habermas has developed
his criticism of scientism to include the subject-object model traditionally held by philosophy. In what follows I will examine in what
ways psychopathology and psychotherapy, respectively, are conceptualized in the theory of communicative action. The distinction
between strategic and communicative action will be crucial to this
discussion.

Strategic and Communicative Action
The place of the teleological nature of action is central to this distinction. Habermas has increasingly emphasized the place of teleology
as fundamental to all action, so much so that the distinction between

communicative and purposive types of action is difficult to maintain.
This move has not endangered the distinction between strategic and
communicative action. But it does have more far-reaching consequences than Habermas has hitherto drawn. It seems to me that the
root distinction between goal-oriented behaviour and understandingTheory, Culture & Society (SAGE, London, Newbury Park and New Delhi), Vol. 7
(1990), 113-115.

114

Theory, Culture & Society

oriented behaviour hangs in the balance; also the teleological and
the intentional model of action is not necessarily tied to the subjectobject model, and cannot therefore be so easily discarded.
Psychopathology
Habermas regards psychopathology as systematically distorted
communication due to its confusion of behaviour oriented toward
understanding with goal-oriented behaviour. Action that is apparently communicative carries within itself latent and disguised strategic
intentions. This is not apparent to the actor himself, hence the selfdeception.
There is a parallelism here to the Lacanian school which regards
psychoanalysis as a form of rhetorical analysis. Accordingly, therapy
is an analysis of the effects which are triggered by the analysand in
seeking to give an account to the listener. Unconscious wishes and
identifications, or traumatic experiences that have not been worked
out, exert a power and effect upon the listener: the 'rhetoric of the
unconscious'. The analysand assumes that the apparently nonintended, accidental effects are just that; whereas in reality it is the
analysand who produces these effects intentionally, but unconsciously, for the analyst. Rhetorical analysis concerns itself with the
unconscious manoeuvres of those being analysed to use their inner
experiences and their utterances to manipulate their listeners. Because
rhetoric is concerned with the relation between speaker and listener,
so rhetorical analysis can be interpreted as strategic interaction.
Habermas's thesis is a variant of the old thesis that sham consensus
conceals power or compulsion (whether external or internal). Or
conversely, that illegitimate power relationships are only stabilized
terms of speech theory, the perlocuthrough a sham consensus. ｐｵｾｩｮ＠
tionary goals of a speaker can only succeed where he deceives the
listener as to his strategic intentions.
Freud's analysis of symptoms as unconscious wish-fulfilment
appears to support the idea that the meaning of symploms is to be
found in the sphere of strategic action . Similarly Habermas's earlier
analysis of regression as a stage of privatized language is now seen
as 'monoiogical' strategic action.
But it does not seem to me to be compelling that psychopathology
should be concerned with the unconscious. Rather the question of
the analyst should be: 'What will the analysand unconsciously
achieve?' Equally it is relevant to ask: 'What will he unconsciously
say or communicate?' It seems less restrictive for psychopathology,

Doeleman, Communicative Action and Psychoanalysis

115

which in general is concerned with the appearances of actions, to
treat manifest and latent actions as being as much strategic as
communicative.
Psychotherapy

Habermas holds the view that in a therapeutic and hermeneutic
situation that is directed toward self-reflection and overcoming selfdeception the validity claim