Facticity and validity

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By FELIPE MORALLES AND MORAES*

Commentary on the book by Jürgen Habermas

When faced with an immense and extremely dense work, it is tempting to take revenge on it quickly and superficially. This unconscious satisfaction against Facticity and validity (1992), by Jürgen Habermas, recently republished in a new translation, was given to us by Luis Felipe Miguel in Democracy and representation (2013). It may seem naive, on the one hand, to think that there is an authentic critical reception of Habermasian thought in Brazil. The rhetorical strategy ended up becoming trivial in a society marked by crazy pluralism.

Just as the chief executive chooses his occasional enemies, an ex-president L…, a governor D…, a judge X…, LF Miguel also chooses his enemies in his agonistic struggle: the philosophers of deliberative democracy. This allows you to ignore the texts and accuse them of advocating squaring the earth, so to speak. Ideology today is crude, as you know. A few chuckles and half-truths are enough to alleviate the insecurity of generalized misunderstanding and create pride in having definitively resolved the issue.

On the other hand, there is an important reception by LF Miguel. The attacks on Facticity and validity they are not random. One of Habermas' main opponents is political representationism: the conception of politics as an activity to reinforce pre-given units, naturally or socially, instead of rationalizing opinions and wills; as a space for manipulating opinions and expressing desires instead of reasons; as a form of reification of personalities and the instrumental use of power, instead of clarifying interests and a legitimate use of power.[I]

Fortunately, the large number of attacks by LF Miguel allows us to focus on this Brazilian critic to undo misunderstandings that may exist among people interested in revisiting Facticity and validity and understand the idea of ​​deliberative democracy. Democracy is not just a political regime, an institutional structure, a toy of puppets and representations, because it requires a non-dogmatic attitude, focused on exchanging reasons and open to learning. What does it mean to bring thought to the demanding level of democratic citizenship? This is perhaps the great question that animates the work. Facticity and validity.[ii] More specifically, what unites its various themes is a theory of the rationalization of power: how social, economic, media and administrative power can become rationally acceptable in a massified, complex, functionally differentiated and legally organized society.[iii]

Simplifying jouissance itself has a simple expedient. LF Miguel's criticism abuses the polysemy of the term “deliberative democracy”. Sometimes they identify it with a concrete form, the currently existing formal democracies, accusing the concept of lack of criticality. This is the meaning of the first three objections that will be analyzed. Sometimes they identify it with an abstract utopia, purely rational deliberation, accusing the idea of ​​a lack of realism. The three subsequent criticisms go in this opposite direction. Responding to these criticisms I intend to prepare the ground for a different reception of the new translation of Facticity and validity, showing how the idea of ​​deliberative democracy is a realistic utopia that, so to speak, eppur si muove. Indeed, it is necessary to show how deliberative democracy is an idea immanent to the praxis democratic and at the same time transcendent politics of formal democracies; an idea both necessary to understand the practice of discussion through reasons, as possible to orient ourselves to the conditions of emancipated forms of life.

The work can be divided, very broadly, into reconstructions of the facticity e validity internal to the use of language for communicative purposes, including legal language (Chap. I and III); and the facticity e validity the external relationship of modern law with other social systems, as a specialized language and a system for stabilizing expectations (Chapter II); from the facticity e validity immanent to political power, insofar as it is carried out by law (Chapter IV); from the facticity e validity immanent to jurisprudence (Chap. V-VI). The reconstructions are resumed and condensed, then, in a theory of the rationalization of political power (Chap. VII) and a theory of the liberal, social and procedural paradigms of modern law (Chapter VIII).

 

The Objections of Conformist Realism

The first criticism is that Facticity and validity it would have a critical thrust depleted in relation to Habermas' earlier work and the tradition of critical theory in general. The preoccupation with the colonization of the lifeworld by money and bureaucracy would have been abandoned; communicative action, transformed into social integration with a view to softening social disharmony. The work would be an accommodation of critical theory to the prevailing liberal constitutionalism in first world countries, or an exaggerated reaction to the criticism of anarchic utopianism of the first formulations of the theory of communicative action.[iv] What Habermas would have to offer, then, “is an elaborate justification, and no longer a critique, of existing liberal democracy…”[v]

From an exegetical point of view, this reading does not go beyond the second page of the preface, where Habermas already clarifies that his reconstruction of law in no way abandons, but applies the theory of communicative action contextually.[vi] Even so, it is necessary to respond to the accusation of a supposed lack of criticality and utopia.

The coexistence of democracy and capitalism through a democratically legitimized bureaucratic power was a precarious condition existing in European countries in the post-war period, as was widely perceived since the 1970s. Since then, it has become clear, at least for Habermas, the impossibility conciliation between capitalism and democracy. The more the State imposes its social programs, the more clearly it clashes with the resistance of private investors and the more it overloads the forms of life with normalizations, surveillances and reifications, which – although less drastic than economic exploitation and material misery – – make explicit the impossibility of creating emancipated forms of life with legal-administrative instruments.[vii]

The conclusion that Habermas rejects in the face of this diagnosis is that a democratic constitutional state can retreat from the welfare state, as a political system that satisfies social functions and normatively justified demands against cruder and crueler forms of economic domination. There is no way to live without it and even without an extension of it. “Especially countries still lagging behind in the development of the welfare state have no plausible reason to deviate from this path”.[viii] A second rejected conclusion is that the idea of ​​radical democracy may appeal to state planning capacity, a “socialist state”, as if society could influence itself through administrative power, without a social domestication of the state. His response to the offensives against the welfare state is to seek to overcome this model in a higher reflective stage, directing his project simultaneously to the democratic domestication of the market and bureaucracy.[ix]

Facticity and validity enter this scenario.[X] The work begins by announcing the attempt to recover the link between rational law and revolution, as well as the self-awareness of the potential of the idea of ​​a radical democracy. The great achievement of constitutional liberal democracy was, according to Habermas, the institutionalization of the right to say “no! ” and contesting arbitrary social relationships. In modern society, it is not admissible to prescribe for someone who no longer has subjective rights and freedoms, in order to socialize the economy, although it is necessary to defend the rearticulation of the limits between economics and politics and the very ownership of the means of production. This rearticulation goes through the idea of ​​political self-determination through law. The idea of ​​a democratic rule of law is the only passage that socialist ideas need to go through in order to become realistic again in a society characterized by massification, functional differentiation and pluralism of forms of life.[xi]

An immanent connection between socialism and democratic constitutionalism is found through the reconstruction of modern rational law. The political self-determination that takes place through the creation of legal norms is marked by two tensions between facticity and validity – internal and external – developed in Chap. I to III of the book.

(i) The internal tension consists in the fact that any discussion based on reasons – including the discussion between citizens who seek to legally regulate their conflicts – presupposes an effective use by the participants of certain ideal principles.[xii] Every social process that involves the exchange of reasons has a “face of Janus”: the validity claims of statements need to be raised and accepted here and now in order to lead to an agreement with effects of social coordination; but also as claims to truth, correctness and authenticity that go beyond the here and now. The reasons only hold for a context-dependent standard of rationality; although they establish learning processes capable of transforming this context and the usual patterns of rationality. Binding acceptance in a certain place drives communicative practices; but rational acceptability explodes everywhere.[xiii] It is possible to make explicit, in this way, a principle that gives this “sense of the impartiality of practical judgments” and determines whether an understanding has been reached by free and equal persons. This depends on attributing equal communicative power to the participants, that is, equal opportunity to participate in the processes of argumentative formation of opinions and wills. This is the principle of the discussion: only those norms of action are valid with which all the possible concerned could agree as participants in rational discussions.[xiv]

(ii) The external tension between facticity and validity consists of the simultaneous pressures suffered by modern law both from the materialism of an order that reflects the unequal distribution of social, economic and media power, and from the idealism of the constitutional legitimation of power by the political self-determination of citizens .[xv] In modern societies, positive law is “a medium profoundly ambiguous process of social integration”, because it is linked both to the organization of market systems and bureaucracy, and to the sources of understanding and common exercise of autonomy. Unsealed, as specialized knowledge used to solve socially relevant problems, and which results in the reciprocal recognition of rights and duties among citizens, it becomes impregnated with political, ethical and moral discussions. On the other hand, there is always a latent possibility of using the law to use illegitimate power. Economic and administrative operations are carried out in the form of rights – which serve the functional stabilization of behavioral expectations. Thus, positive law has the external capacity to shape the powers that intervene socially, economically and mediatically from outside the legal system, so that they are compatible with the requirements of reciprocity.[xvi]The external plot between facticity and validity in law points to the idea of ​​legitimate domination, that is, to a democratic domination of social, economic, media and bureaucratic powers.

The logic of the economic and bureaucratic systems are constitutional, according to Habermas, only if, through a range of public spaces and deliberative institutions, the questioning and political revision of the balance between the structuring powers of society is allowed: money, State and solidarity.[xvii] Such a balance between money, state and solidarity is more than a mere legitimation and less than an ontology of power. It is part of a theory of the rationalization of power: the passages between the emerging communicative reason in the world of life and the functionalist reason operating in the economy and bureaucracy. “Rationalization means more than mere legitimation, but less than the act of constituting power”.[xviii]

This utopia of the rationalization of political power starts from an analysis on three levels: (a) the ability of citizens to act in common, based on a mutual understanding obtained through reasons (communicative power); (b) the ability of interest groups, large companies and corporations to impose their interests in the face of resistance from other actors (social, economic and media power); and (c) the ability of holders of official positions to regulate and execute interest through bureaucratic means (administrative power).[xx] Facticity and validity reflects, then, on the necessary infrastructure for communicative power to free itself from the imposing power of privileged interests and convert itself into administrative power – in order to avoid the current sinister symbiosis between economic power and bureaucratic power.[xx] Political power becomes irrational to the extent that social, economic and media power, on the one hand, and bureaucratic power, on the other, become autonomous from communicatively produced power.[xxx]

What is “socialist” in this utopia is the idea that the claiming structures in society, conferred by the solidarity present in concrete life relationships and by the right to question arbitrary relationships, can be transferred to the economic and administrative system through a democratic formation of positive law.[xxiii]

While LF Miguel elects the defenders of subjective rights of democratic constitutionalism as an enemy, Habermas makes a critique of contemporary capitalism. He rejects the anti-liberal left's strategy of diverting the contradiction between democracy and capitalism against democracy. The lack, in formal democracies, of basic guarantees and needs for the majority of the population cannot be attributed to constitutional rights of dignity and justice, which are due to all. Criticism of the general state of affairs needs to be directed against the contradiction between economic inequality and formal political equality, not against constitutional subjective rights.

 

Material conditions of access to the public sphere

The second criticism is that Habermas would stylize the form of production of communicative power in society, isolating the formal public sphere from the game of social forces, as “a more sophisticated version of the school textbooks of civics”. He would not discuss the material conditions of access to the public sphere.[xxiii] Facticity and validity it would be tainted by a liberal dividing line between economics (materially unequal) and politics (formally unequal). His communicative model would not be concerned with the question of inclusion, nor with questions of “political economy”.[xxv] Subaltern or dominated groups are less able to identify their own interests (time and spaces for reflection and construction of common projects), less ability to use discursive tools (school system and mass communication, for example) and to universalize these interests ( participation in political and economic decision-making and translating their agendas into universalist terms).[xxiv] Therefore, the “public sphere” conceived by Habermas would remain attached to the liberal premises of the currently existing democracies, in which it would be enough for the participants to discuss under formal equality, without attention to the substantive equality of a fair debate.[xxv]

Reconstructed in this way, the deliberative ideal would take on, concludes LF Miguel, instead of an impulse to emancipation, a conservative mantle: paralyzing and delaying political action. And he exemplifies: “invitations for representatives of social movements to participate in deliberative forums may imply the legitimization of unjust institutions, lead to the demobilization and abandonment of more effective forms of intervention and often be a means of co-option”.[xxviii] In another example: groups benefited by redistributive policies or affirmative actions have specific demands that immediately benefit or harm them, in addition to having the burden of combating hegemonic visions and denaturalizing social categories, which reduces their ability “to translate their interests into a universalist rhetoric.” The issue of hegemony would be a blind spot in the public sphere. Deliberative democracy would formally include excluded individuals or groups, but would not give them the opportunity to effectively act.[xxviii]

The proposal of a discussion principle is to determine the sense of impartiality of practical reason, so that the consideration of interests results symmetrical and without coercion. For this, it is necessary to equally distribute the communicative power in society, including negotiation and bargaining powers:

To the extent that the process of forming compromises takes place according to procedures that ensure that all interested parties have equal opportunities to reciprocally influence each other and thereby also achieving equal opportunities for the enforcement of all affected interests, then it can be said that there is a well-founded assumption that the agreements reached are fair.[xxix]

In the Democratic State of Law, the power of state imposition of interests is intertwined with the communicative power of a democratic procedure of positivization, which is rational insofar as it guarantees equal freedoms and equal communicative power. Only if objective law preserves a presumption of justice are the parties involved in the interaction or conflict bound to adopt the game of intersubjectively acceptable arguments between legal partners. It is the justice of institutions that creates in participants this “disposition to obedience based simultaneously on factual coercion and legitimate validity”.[xxx] The rational discussion contemplates negotiations of interests, which requires that these discussions be submitted to egalitarian material conditions.[xxxii]

From the beginning of the discussion, Habermas deduces some rights: (i) subjective freedom of action, (ii) freedom of association, (iii) legal protection, (iv) opportunity to participate (Participation) political and, notably, (iv) equal social, technical and ecological conditions for participation (Participation) in the rights to private and public freedoms referring to the previous rights.[xxxi] Certainly, these rights cannot claim for themselves a moral or natural law validity superior to the political autonomy of citizens.[xxxii] Even so, they are “principles by which the constitutional legislator is guided” or, in other terms, a “system of rights”, whose saturation as specific fundamental rights will depend on the autonomous practice of the members of the legal community.[xxxv] This is what Habermas develops in Chap. IV as a tension between facticity and validity immanent to political power, when this is realized by positive law.[xxxiv]

The view that a normative theory must be “procedural” invites a series of misunderstandings, clarifies Rainer Forst, because only the criterion of justification of the principles can be called procedural, not their presuppositions, nor their results.[xxxiv] A critical theory of law, democracy, politics could not fail to consider the material conditions for the use of communicative reason – on the economic and cultural assumptions for deliberation. The principle that gives each one the power to claim, offer and challenge justifications does not cease to be constituted and constitutes rights, information, opportunities, values, etc., of a material nature. Inclusiveness, equal participation, non-coercion, while not immediately expressing moral or legal rights and duties, do express “rights and duties of argumentation,” writes Habermas.[xxxviii]The constant substantive requirement of the principle of discussion is the effective possibility of taking a position in the face of utterances and validity claims of an interlocutor. Justice has no other authority than that assigned through egalitarian political procedures of giving and receiving reasons.

According to LF Miguel, the model of representative democracy would refer to the ideal of political equality based on a division between representatives and those represented, as a “crucial mechanism for maintaining social conflict at manageable levels”, but capable of reducing the difference in political power and the “constant deviation between the actions of the representatives and the will of the represented”.[xxxviii] However, this is the liberal model of democracy, which only replaces individual citizens and their interests with associations and organized interests. It is the old competition democracy and balance of powers, which does not enter into the problem of rationalization of political power.[xxxix]

The theory of deliberative democracy emphasizes that the representative public sphere needs to be embedded in an informal public sphere, which prepares and influences opinions and wills without the constraints of a scheduled discussion for political decision-making. The public sphere of representatives not only needs to be regulated by the “justice point of view” of the principle of discussion, but also complemented by an informal public sphere.[xl] The concept of representation is subordinated to that of the public sphere: it is just the organized center or focus of the communicative circulation of an unorganized public sphere that permeates society. Discussions conducted in a representative manner can satisfy the conditions of fairness in political participation only to the extent that representatives remain open, sensitive and receptive to pressures, issues, reasons that flow from the informal public sphere, with a pluralistic base.[xi]

It is in this informal public sphere, where communicative flows are wild and barely palpable – news, reports, comments, speeches, scenes, images, shows and films, with informational, controversial, educational or entertainment content –, where the political culture, around what Gramsci called cultural hegemony (without implying, for Habermas, however, the search for a concrete and privileged macro-subject of historical struggles). The fair distribution of communicative powers needs to appeal to inferior arenas, where there is no direct dispute over economic or bureaucratic power, but over definitions. It is in them that social, feminist, ecological movements act. These guidelines move in the field of everyday communication and, from there, they can self-organize, condense and enter more organized public spheres.[xliii]

 

Limitation to existing communication

A third objection, which had a lot of repercussions in the new generations of critical theory, was that Habermasian thought would focus its critical sting on discussions that were already socially or legally crystallized, which penetrate political institutions and direct them. This objection casts doubt on whether we can expect a correct result from the grammar of existing practices. Different social positions confer different degrees of discursive effectiveness on their occupants. Prejudices and privileges do not arise in deliberation, nor are they countered by good arguments, because they are too stealthy, invisible and pernicious.

The idea of ​​deliberative democracy would be too rationalist for ignoring, or minimizing, the imperviousness to discussion of most of the obstacles that prevent the realization of this ideal. It presupposes that bigots, xenophobes, racists are open to discussion and expose their harmful behavior openly and subject to the questioning of others.[xiii] For LF Miguel, therefore, Habermasian work lacks a theory capable of perceiving the constraints that already operate in the context of language and communication: “in the real world, debates are always distorted by differentials of power, authority and even access to information”. he speaks".[xiv]

Habermas shares the materialism of Marx and Adorno that a critique of capitalism could not be done through a critique of ideology, without linking it to a theory of reification. Allow me the reader to remember. Marx had already realized that the critique of ideology was an insufficient, secondary, historically and socially dependent aspect. Individuals view their relationships ideologically, because their interests are turned upside down by the processes of material life.[xlv] Explaining with Feuerbach, for example, that religion is the fixation of a material self-realization in an imaginary world is not enough to overcome it. The subjective needs satisfied by religion are anchored in social relations, forms of adjustment to roles and classes. In the same way, the fetishistic character of the world of commodities originates from the very nature of the work that produces these commodities, that is, commodified work. Such is the meaning of the critique of commodity fetishism: they necessarily appear as exchange values ​​in a society regulated by the principle of exchange.[xlv] The irrational values ​​contained in ideologies could only be overcome in a rational society. Such is the meaning of the famous eleventh thesis on Feuerbach.

Habermas' approach follows. Pre-bourgeois and bourgeois ideologies mix, weaken, if not dissolve, as they become incompatible with the functionalist reason required by modern economic and bureaucratic systems. The predominance of capitalism and bureaucracy could not be faced with conscientious criticism. “It proves less comprehensible on reflection, since it is no longer only ideology".[xlv]Ideologies are a reflection of, but not the concept of, success-oriented action systems that have become independent.[xlviii] A Theory of communicative action refers to the thesis of the “end of ideology” in the sense that economic and bureaucratic imperatives advance without totalizing worldviews: they “exert their influence discernibly from the outside in socially integrated domains of action”.[xlix]

In response to criticisms, Habermas highlights the materialist origin of the approach: the critique of ideology only attacks the legitimacy of the orders against which the transformative struggles are directed. It does not imply the overthrow of the institutions on which these consciences are based.[l] On a revisit to the work knowledge and interest, repeats almost verbatim Adorno's lesson that classical forms of ideology have lost their meaning: "how capitalism works and what distributive pattern it produces is something one reads today in almost every daily newspaper".[li] Ideology has become crude, as Adorno said.[liiii] Reading any newspaper would allow you to understand what is happening in the modern economy: an unbridled international capitalism without any democratic counterpart. But we must read this passage to the end.

Still echoing the Adornian lesson, she continues that the power of capitalism “installs itself in the pores of discourses and everyday practices” whose analysis lacks “a generalizing theoretical background that grounds the 'systematic aspect' in the variety of distorted communications”.[iii] Now as before, the theoretical difficulty lies in making a critique of ideology anchored in a critique of objective processes of reification: of logics that operate behind the agents, regardless of individual consciences.

Ideologies have the function, as a semantic counterpart of reification, of disguising the limitation to communicative action by instrumental or strategic action.[book] Habermas defines them now as “distorted communication”[lv], sometimes as “structural violence”[lv]. Ideologies do not manifest themselves as direct blocks, but as common convictions and stereotyped formulas that prevent someone from listening to what the other says, their validity claims and, therefore, the formation of legitimate political power.[lviii] They hide in the “pores of communicative action” and, “without becoming manifest, they seize the form of intersubjectivity of possible understandings”.[lviii] To understand the phenomenon of ideological blindness, it is not necessary to presuppose the problematic concepts of a science of history or of a society conscious of itself, as in the classic model, the idea of ​​democratic discussion of the structuring institutions of society is sufficient, which is distorted by prohibiting questioning, themes and discussions about these institutions.

From Technique and science as ideology" e Problems of legitimation in late capitalism, the main ideology is, according to Habermas, “civic privatism: a mix of bourgeois (such as performance ideology, possessive individualism, technocracy) and pre-bourgeois (such as ethical statism, small family ethics, religious fatalism) elements that depoliticize society. public sphere in favor of personal fulfillment and self-determination within the family, consumption and profession.[lix] A Theory of communicative action associates the colonization of the lifeworld with this disposition of individuals to exchange their participation in the broader economic and political decisions of society for some benefit as consumers or customers. Self-realization and autonomy are interpreted restrictively, as promises of improvement of some living condition within the capitalist and bureaucratic systems, to the detriment of the possibility of a radical democracy.[lx] An important example of this form of ideology is the struggle of conservative sectors for the amoralization of political conflicts, under the sign of a technocratic vision of politics and society. Political issues are transformed into technical issues for the better functioning of the capitalist system.[lxi] The feedback between systemic reification and the ideology of civic privatism reappears in Facticity and validity: “[the] civic privatism syndrome and the exercise of the role of citizen based on the interests of clients become all the more likely the more the economy and the State… develop a systemic sense of their own, pushing citizens to the peripheral role of mere organization members”.[lxii]

One by one, thus, the objections of uncritical realism fell to Facticity and validity – although many concepts, such as communicative reason, public sphere, ideology, etc. would probably demand more articulated reconstructions, for which there is no space here. The following criticisms practically contradict the previous ones.

 

The objections of unrealistic utopianism

This is how LF Miguel's criticisms begin again: Habermas would have a non-arbitrary normative ideal, but one that would present “no point between the ideal and reality”.[lxiii] The realization of a debate involving all interested parties, in large, populous and complex societies, would be impossible. Habermas's political theory would view "with suspicion all forms of mediation".[lxiv]

The primacy of the principle of discussion is possible in modern societies because politics is organized by the form of law. In fact, communicative interactions open the constant risk of dissent, considering the power of each one to say “no!”, which could make social integration for reasons absolutely improbable. This risk is compensated, at first, by the insertion of communication in different contexts of the world of life. “The continuing unrest arising from experience and contradiction, from contingency and criticism, collides in the course of everyday praxis with a broad and unshakable rock of deep consensual patterns of interpretation, loyalties and skills”.[lxv] However, in modern societies, not only does the pluralism of life forms gradually dissolve this background consensus, but the economic system also liberates instrumental and strategic action largely from consensual standards, overloading this consensual support of the lifeworld.[lxvi]

These circumstances push discussions about what citizens owe one another to increasingly abstract levels. Moral argumentation from universal principles needs to justify its duties at a very high level of abstraction – without determination about particular due conduct, due results, responsibility for non-compliance, etc. For example: the moral duty to prevent anyone from dying of hunger needs to be organized as a way of producing, transporting and distributing food, which far trumps charitable moral initiatives. Hence the need to compensate for this growing risk of dissent, whether at the pragmatic, ethical or moral level, with a system of legal rules, which determines which norms and which procedures are valid for clashes of positions. Legal institutionalization consists precisely of this: normative expectations that allow members of a collective to know what behaviors they can demand from each other, when and under what circumstances they should behave in a certain way. The norms of justice arise in the face of an already consummated polarization between communicative action and strategic action. The demands of justice derived from the principle of discussion thus assume an organizational primacy within a society that controls interpersonal relationships through legislation, judicial decisions and legal dogmatics. This is what underpins the demands for cooperation in complex, large-scale societies.[lxv]

According to the reconstruction of Facticity and validity, modern rational law can be understood simultaneously as a system (a regulation complex) and as knowledge (related to normative interpretations scientifically articulated and intertwined with a moral principle).[lxviii] It can function as a "hinge" or "transformer" between lifeworld and system: a specialized language open to the same extent to the public sphere and functional codes, which enables the circulation of communicative power throughout society as a whole, beyond restricted spheres of life.[lxix] Positive law can thus be considered both constitutive of the rigid codes that drive reifying social processes and the “medium whereby communicative power is converted into administrative power”.[lxx] The institutionalization of communication conditions makes possible an effective use of equal communicative freedoms, impelling citizens to a reciprocal adjustment of interests and to a non-unilateral use of practical reason, due to its interweaving with ethical and moral reasons.[lxxi]

 

group interests

LF Miguel continues his accusations saying that the theory of deliberative democracy has difficulty recognizing the legitimacy of interests and interest groups in the political arena.[lxxiii] Communicative action would have face-to-face communication as a model, generated by the interaction between individuals, not as selfish people, nor as representatives or spokespersons for interest groups.[lxxiii] Its society model would be of individuals, preventing processes of formation and affirmation of collective interests and identities.[lxxiv]The Habermasian theory would be insufficiently realistic for discarding the idea of ​​representation, central to decision-making and public debate.[lxxv]

This accusation repeats the one made by Habermas himself to Hannah Arendt's concept of power – who would have made a very rigid distinction between political actions and strategic actions. The theory of deliberative democracy does not ignore that “the (strategic) struggle for political power was even institutionalized in the modern State, thus becoming a normal element of the political system”.[lxxvi]The criticism is repeated in Facticity and validity, in order to further differentiate communicative power from social and administrative power: “[the] concept of communicative power obliges us to differentiate the concept of political power. Politics as a whole cannot coincide with the praxis of those who speak to each other and act in a politically autonomous manner”.[lxxvii]

Since Kant, the critique of reason has not turned against a differentiated use of reason, but against its lack of limits and unilateralizations. Since the resumption by Horkheimer and Adorno, the unilateralization of reason is associated with a diagnosis of capitalist society that submits all its domains to instrumental reason. For Habermas, in the same way, actions oriented to success unilateralize more and more spheres of life that should be mediated by action oriented to understanding. The reconstruction of rational law does not aim to eliminate the instrumental and strategic actions of individuals or groups, but rather subject them to the principle of discussion – which encourages strategic agents “to abandon the egocentric perspective of their orientation towards success in order to establish public criteria of rationality focused on understanding”. And he clarifies: “It does not naturally follow that strategic interactions could not take place in the world of life. But such interactions have a different positional value than in Hobbes or in game theory... because the strategic agent treats the institutional data just as much as the other participants in the interaction as social facts. In the objective attitude of an observer, he cannot get along with them as a second person”.[lxxviii]

Modern societies free up a great deal of domains of life for dissent and for the use of strategic actions.[lxxix] Therefore, the idea of ​​deliberative democracy cannot be taken as “the model of all social institutions (or even of all state institutions)”.[lxxx] Rather, it turns against the idea of ​​democracy that treats the preferences, choices, values ​​of individuals and groups as natural data, or as attitudes of blind adaptation, instead of as results of processes of rational formation of opinion and will.[lxxxi] The filters of the public sphere and the egalitarian discussion mediated by law are not intended to dissolve communicative reason and strategic reason, but to pressure participants to offer acceptable justifications in defense of their interests.[lxxxii]

While political representation is always “mine” or “yours” and needs to be attributed to an identifiable subject, political discussion exceeds the boundaries of self-preservation of an individual or collective identity.[lxxxiii] Therefore, the bearer of social emancipation is, for Habermas, an open category: the citizen. There are many struggles and hotbeds of conflict in modern society. This bearer could never be hypostatized in a class, gender, race, culture. The idea of ​​social emancipation cannot intend to prescribe a concrete form of emancipated life for others – a form of work, sexuality, culture, etc. –, just the rational conditions for emancipated forms of life. In this sense, the idea of ​​popular sovereignty is radically transformed: “[t]he popular sovereignty is no longer concentrated in a collective, nor in the physically apprehensible presence of citizens gathered together, nor in that of associated representatives, but is realized in the circulation of deliberations and rationally structured decisions”.[lxxxiv]

In fact, advancing in the reading, it is noticed that LF Miguel only pretended to criticize the deliberative model, just as authoritarians pretend to seek the truth. Interests, he confesses, “are not fixed data, they are not natural, nor are they automatic reflections of certain material conditions”. The existence of identities and collective agents depends on “the shared understanding of their situation in the world, in a dialogic process”.[lxxxv]Indeed, the core of the idea of ​​deliberative democracy are these processes of argumentative formation of identities. Democracy and representation makes a childish simulation, by taking out of the hat, as if by magic, the deliberative vocabulary and the necessary conditions of a rational understanding.[lxxxvi]

 

Consensus overvaluation

All previous criticisms would originate, according to LF Miguel, in a non-existent universal reason, a unitary illusion that would not recognize the multiplicity of groups in society, due to “an unarmed search for consensus”.[lxxxvii] For the Brazilian critic, this normative perspective would be unreliable “for the understanding of political clashes, which have an accentuated agonistic character where success is worth more than harmony”.[lxxxviii] Even if a disinterested dialogue between all were possible, it is not plausible to assume that a consensus would be obtained, given the modern conflict of divergent, irreducible and insurmountable values.[lxxxix] In real speeches, rational arguments are inseparable from rhetoric and narrative.[xc] The long habermasian endeavor would be fueled by this rationalist illusion.[xci] The deliberative ideal would have, after all, “a strong anti-political component, with nostalgia for a harmonious community…”, in a dream of “unitary democracy in which social differences are abolished”.[xcii]

That dissent constitutes modern society is not only a premise of deliberative democracy theory, but also a normative criterion, it should have been clear by now. Claims, discussions through reasons, in short, communicative actions can only start from the recognition of the power of individuals and groups to express their dissent. And there are many ways to express it. On the stage of the political public sphere, Habermas clarifies, social actors not only problematize issues, but also dramatize their contributions and stage them so effectively that the mass media can take up their issues. Its weapons are reputation, prestige, credibility and other symbolic forms of influence, as well as the drama and persistence of its speeches, actions and protests.[xciii]

Generalized confusion and its inseparable pair, stereotyping in thought, lead to LF Miguel's agonistic readings:

(i) The first is the confusion between consensus and guidance to understanding. This holds for all uses of language for communicative purposes, no matter whether a moral assent (agreement), an agreement or compromise between interests (Vereinbarung ou Kompromiß), or a consensus on a self-understanding, identity or conciliation of ethical and political values ​​(Consensus).[xciv] Certainly, the Rule of Law presupposes a dimension of mutual recognition between agents that regulate their relations in the form of rights and duties. “This reciprocal recognition is constitutive for a legal order, from which judicially claimable subjective rights derive”.[xcv] However, the rule of law is not based on consensus, but on procedures and rules on which agents agree.[xcvi] Even selfish subjects or groups, such as those idealized by LF Miguel, who only think about the execution of their own interests and who aim to impose them on others, are forced to seek compromises with other agents to enforce these interests and accept legal rules that limit them . Strategic political actors already presuppose an understanding-oriented use of language, albeit in a still unilateral way, which does not enter into ethical and moral reasons for the regulation of their negotiations, agreements and commitments.

(iii) The second is the confusion between substantial and performative priority of the discussion principle. For him, it is important to organize structures that stimulate the “performative attitude of a speaker who wants to get along with a second person about something in the world”.[xcvii] Institutionalized deliberation and decision processes are arrangements that act on participants to examine topics, contributions and information so that, ideally, only good reasons pass through the filter of discussions. This makes the virtues of citizens largely dispensable. “To the extent that practical reason is integrated into the very forms of communication and institutionalized procedures, it need not materialize either exclusively or predominantly in the minds of individual and collective actors”.[xcviii] Rationality is defined performatively. Its use presupposes the attitude of allowing oneself to enter into certain assumptions, such as fallibilism, communicative equality, etc., without predetermining the content of the interventions. That is to say: rationality is in the willingness of those who interact socially to problematize their statements or actions, to justify their conduct and statements to the other, to correct mistakes and learn through convincing reasons.[xcix]

(iii) The third confusion is between universality and universalization. The relationship between the pragmatic, ethical and moral dimensions is one of a gradual radicalization of the problems: the pragmatic problem of satisfying and balancing given interests (for example, in choosing a profession), can get worse to the point of generating an ethical problem or clinical about who one is or would like to be (whether a business administrator or theologian) and, even more, a moral problem when actions conflict with interests and existential decisions of others (whether a certain profession is compatible with the universalist point of view ). The more radical the question is posed, the more it becomes acute in the problem of which life one would like to lead and what we owe to others.[c] Thus, the relationship between autonomy and heteronomy, between universalism and contextualism is mediated: subjects who participate in discussions are those who shed idiosyncrasies as pluralism becomes more and more accentuated and the issues under debate become more and more comprehensive. .[ci] Along a path of successive abstractions within civil society organizations and the political-democratic system, informal and formal deliberation procedures peel away a core of reasons capable of generalization.[cii] Worldviews, conceptions of the good life and private interests are being molded so that they can be accepted by increasingly universal public spheres, even if they are not, in themselves, universal, which maintain instrumental, evaluative discourses and logical principles intrinsically connected: “…political discussions are mixed in nature. But the more they deal with constitutional principles and the conceptions of justice that underlie them, the more they resemble moral discourses”.[ciii]

After dealing with confusion and stereotyping, the so-called “extended theory of representation” is nothing more than a half-baked pastiche. It invokes the same processes of deliberative formation of collective interests and wills, that is, the necessary conditions for public debate.[civ] It invokes the same ideal of non-domination.[cv] The difference is that it does not offer a rational orientation for overcoming arbitrary domination over public debate, nor a utopia for the rationalization of political power.

By mistaking revolution for mere rotation, so to speak, LF Miguel does not notice, or pretends not to notice, the enormous change that has taken place in the constellation of political thought provoked by Facticity and validity. Despite claiming that Habermas neglects political economy in order to explain the loss of legitimacy of the current representative model, he invokes the same diagnosis of the fiscal and legitimation crisis elaborated in the Problems of legitimation in late capitalism, as well as the contradiction made explicit there between the tasks of capital valorization and obtaining loyalty from the masses.[cvi] Despite accusing Habermas of formalism, representation would also need to be understood in a “formalist” way – namely, emphasizing authorization procedures by citizens for political action (advocacy) and accountability by the agent (accountability), in a constant dialogue between representatives and represented.[cvii] Even more notable is that, despite defending “representative democracy”, the Brazilian critic prefers to emphasize that for the advocacy and accountability, “the decision is conditioned – or, at least, guided – by the established public agenda”. And he concludes: “the relationship between representatives and those represented depends, to a large extent, on the subjects discussed and placed for decision”.[cviii] It would be a mistaken perception to strictly separate the representative and decision-making sphere from the public sphere, because modern politics is founded on the latter, “as Habermas himself, by the way, observes”![cix]By the way, this is exactly the heuristic primacy of the principle of discussion over the principle of political representativeness.

Procedural questions about the mode of election, the status of representatives (immunity, free or mandatory mandate, formation of parliamentary groups) and the way of making decisions (prior to consultation, by majority, in one or more rounds), need to be regulated in the light of the principle of discussion in order to guarantee equal communicative powers between the parties involved.[cx]The discussion about mandatory or free mandates only arises if politics is no longer reduced to the mere negotiation and implementation of existing interests, represented by chosen representatives. The differentiation between types of representation presupposes that interests are not swallowed as something reified, but that they are oriented towards the exchange of arguments and modification through discussions. “Only with a logic inherent to the political formation of opinion and will does a moment of reason come into play that alters the meaning of representation”.[cxi]

In short, these false contrapositions and agonistic tricks must not frighten unwary readers. The new Brazilian translation of Facticity and validity (2020) is very welcome for those who want to keep their critical spirit.

*Felipe Moralles and Moraes is a doctoral student in political philosophy at the Federal University of Santa Catarina (UFSC).

Reference


Jurgen Habermas. Facticity and validity: contributions to a discursive theory of law and democracy. Translation: Felipe Gonçalves Silva and Rúrion Melo. São Paulo, Unesp, 2020, 732 pages.

Notes


[I] Cf. HABERMAS, Jürgen. Facticity and validity P. 430 ss. [hereinafter FV]. This is a point that has been present since the first works, in which Habermas criticizes the “refeudalization” of the public sphere through strategies that confer an aura of prestige to public figures, just as aristocrats and monarchs used the courts as a mark of status, in order to present a group or the people, and to transform politics into a mere spectacle of plebiscitary acclamations, what he calls “representative public sphere”, cf. HABERMAS, Jürgen. Structural change in the public sphere: investigations into a category of bourgeois society. Trans. Denilson Luis Werle. São Paulo: Unesp, 2014, p. 355, 419, 428-9 and 479-81.

[ii] SILVA, Felipe Gonçalves; MELO, Ruion. Introduction to the Brazilian edition. In: FV, p. 22.

[iii] FV, p. 124.

[iv] MIGUEL, Luis Felipe. Democracy and representation: disputed territories. São Paulo: Unesp, 2013, p. 67-8 and 82 [hereinafter DR]

[v] DR, p. 95.

[vi] FV, preface, P. 26.

[vii]HABERMAS, Jürgen. The new obscurity: small political writings V. Trans. Luiz Rep. São Paulo: Unesp, 2015, p. 219-24 [hereinafter NO].

[viii] NO, p. 225.

[ix] NO, p. 231-2.

[X]FV, p. 515-7.

[xi] FV, preface, P. 28-9; cf. HABERMAS, Jürgen. What does socialism mean today? Recovering revolution and the need for a left-wing revision. New CEBRAP studies, no. 30, Jul. 1991, p. 60.

[xii]FV, p. 49.

[xiii] FV, p. 54 and 72.

[xiv] FV, p. 155. Unlike the usual solution, I prefer to translate the original “discourse” as “discussion”, instead of “discourse”. This is because, if the practice of argumentation were understood as it normally is, namely, as a mere virtual possibility that accompanies statements, a mere wish to be right, this practice would not be distinguished from imposition on the other. Argumentation is conceived by Habermas, differently, as a behavioral and linguistic disposition to learn and prove the semantic content of utterances. It only makes sense as part of a cooperative learning process. This links the uses of reason to the recognition of the other's questions and reasons. Therefore, “discussion” – in the Habermasian sense of argumentation directed at the interlocutor, based on premises that he could rationally accept – can be distinguished from “discourses” – understood as mere valid reasoning, which is not directed at the other, or mere statements, which only express one's own view of the world, or mere conjectures about the other (cf. HABERMAS, Jürgen. Theorie des kommunikativen Handelns: Handlungsrationalität und gesellschaftliche Rationalisierung. Band. 1. Frankfurt am Main: Suhrkamp, ​​1995, I, p. 62-5, hereinafter TkH I).

[xv] FV, p. 75-7.

[xvi] FV, p. 124.

[xvii]FV, p. 203; cf. HABERMAS, What Does Socialism Mean Today?, p. 58 and NO, p. 233.

[xviii] FV, p. 383.

[xx] FV 198-9, 201-3, 231, 437, 461 and 489; cf. HABERMAS, Jürgen. Political communication in media society: does democracy still enjoy an epistemic dimension? The impact of normative theory on empirical research. Communication Theory, no. 16, 2006, p. 417-9.

[xx] FV 203, 231 and 437; more specifically, about the fascist tendencies of neoconservatism, cf. TkH I, Vorwort zur ersten Auflage, P. 10 and NO, p. 63-98.

[xxx] FV, p. 489.

[xxiii]HABERMAS, What Does Socialism Mean Today?, p. 58.

[xxiii] DR, p. 68-9.

[xxv] DR, p. 72, 84 and 94.

[xxiv] DR, p. 86-7.

[xxv] DR, p. 69, 82 and 126.

[xxviii] DR, p. 81.

[xxviii] DR, p. 91-2.

[xxix] FV, p. 221 [I translate here fair as fair rather than “equitable”].

[xxx] FV, p. 62-3

[xxxii] FV, p. 156 and 221.

[xxxi] FV, p. 172-3; cf.Ibid., P. 185.

[xxxii] FV, p. 178; cf.Ibid., P. 201.

[xxxv] FV, p. 176-7.

[xxxiv] FV, p. 184 and 188.

[xxxiv]FORST, Rainer. The justification of justice: Rawls's political liberalism and Habermas's discourse theory in dialogue. In: _____. The right to justification: elements of a constructivist theory of justice. New York: Columbia University Press, 2012, p. 119.

[xxxviii]HABERMAS, Jürgen. The inclusion of the other: political theory studies. Trans. Denilson Luis Werle. São Paulo: Unesp, 2018, p. 101 [hereinafter IO].

[xxxviii] DR, p. 97.

[xxxix]See FV, p. 423-4.

[xl] FV, p. 221 and 226-7

[xi] FV, p. 239.

[xliii] NO, p. 235.

[xiii] DR, p. 88-90.

[xiv] DR, p. 73.

[xlv] MARX, Karl; ENGELS, Freidrich. German ideology: critique of the latest German philosophy in its representatives Feuerbach, B. Bauer and Stirner, and of German socialism in its different prophets. Trans. Rubens Enderle, Nélio Schneider, Luciano Cavini Martorano. São Paulo: Boitempo, 2007, p. 94.

[xlv] MARX, Carl. Capital: critique of political economy. Book I. Trans. Rubens Enderle, São Paulo: Boitempo, 2011, p. 204-6.

[xlv]HABERMAS, Jürgen. Technique and science as ideology". Trans. Felipe Gonçalves Silva. São Paulo: Unesp, 2014, p. 116-7 [hereinafter TCI].

[xlviii] TCI, p. 119.

[xlix]HABERMAS, Jürgen. Theorie des kommunikativen Handelns: zur Kritik der funktionalistischen Vernunft. Band 2. Frankfurt am Main: Suhrkamp, ​​1995, VIII, 2, p. 519 [hereinafter TkH II]

[l]HABERMAS, Jürgen. A reply to my critics. In: THOMPSON, John B.; HELD, David (ed.). habermas: critical debates. Macmillan Press: London, 1982, p. 230.

[li] HABERMAS, Observations on Knowledge and Interest, In: HABERMAS, Jürgen. knowledge and interest. Trans. Luiz Rep. São Paulo: Unesp, 2014, p. 503.

[liiii] ADORNO, Theodor W.; HORKHEIMER, Max (org.). Basic themes of sociology. 2 ed. Trans. Alvaro Cabral. São Paulo: Cultrix, 1978, p. 203.

[iii] HABERMAS, Observations on Knowledge and Interest, p. 503.

[book] NO, p. 356.

[lv] TCI, p. 119 and HABERMAS, Jürgen. Legitimations problem in Spätkapitalismus. Frankfurt am Main: Suhrkamp, ​​1973, p. 156 [hereinafter LpS].

[lv] HABERMAS, Jürgen. Philosophisch-politische Profile. Erweiterte Ausgabe. Frankfurt am Main: Suhrkamp, ​​1981, p. 246 [hereinafter PpP] and TkH II, VI, 2, p. 278.

[lviii] PpP, p. 246-8.

[lviii] TkH II, VI, 2, p. 278.

[lix] TCI, p. 107 and LpS, p. 106-7.

[lx] TkH II, VIII, 2, p. 514 and 523.

[lxi] TCI, p. 109.

[lxii] FV, p. 123; cf. Ibid., P. 669.

[lxiii] DR, p. 73.

[lxiv] DR, p. 75-6.

[lxv] FV, p. 55-6.

[lxvi] FV, p. 73, 144 and 162.

[lxv] FV, p. 164-6 and 233.

[lxviii] FV, p. 124.

[lxix] FV, p. 95, 126, 232 and 452.

[lxx] FV, p. 203.

[lxxi] FV, p. 224-5.

[lxxiii] DR, p. 72 and 74.

[lxxiii] DR, p. 74 and 92.

[lxxiv] DR, p. 84-5.

[lxxv] DR, p. 75.

[lxxvi] ppp, p. 240; cf. FV, p. 202-3.

[lxxvii]FV, p. 202.

[lxxviii] FV, p. 60-1, no. 18.

[lxxix] FV, p. 61.

[lxxx] FV, p. 390.

[lxxxi] FV, p. 430.

[lxxxii] FV, p. 436-7.

[lxxxiii] FV, p. 43.

[lxxxiv] FV, p. 187.

[lxxxv] DR, p. 125.

[lxxxvi]See FV, p. 442 and 445.

[lxxxvii] DR, p. 74 and 93.

[lxxxviii] DR, p. 77.

[lxxxix] DR, p. 79.

[xc] DR, p. 91.

[xci] DR, p. 80.

[xcii] DR, p. 84 and 134

[xciii] FV, p. 484.

[xciv]WERLE, Denilson Luis. Tolerance and public justification. In: _____. Justice and Democracy: Essays on John Rawls and Jürgen Habermas. São Paulo: Public sphere, 2008, p. 164.

[xcv] FV, p. 135.

[xcvi] FV, p. 164-5.

[xcvii] FV, p. 52.

[xcviii] FV, p. 437.

[xcix] TkH I, 1, p. 38-9.

[c]HABERMAS, Jürgen. Erläuterung zur Diskursethik. Frankfurt am Main: Suhrkamp, ​​1991, p. 103-5.

[ci] IO, p. 97.

[cii]IO, p. 121.

[ciii]IO, p. 165; cf. FV, p. 449.

[civ]See DR, p. 121 and 134.

[cv]See DR, p. 96 and 307.

[cvi] DR, p. 105.

[cvii]DR, p. 117-8.

[cviii] DR, p. 119.

[cix] DR, p. 120.

[cx] FV, p. 226.

[cxi] FV, p. 238.

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