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Bjarne
Melkevik
Faculté
de droit, Université Laval
bjarne.melkevik@fd.ulaval.ca
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How must we rise to the challenge
of identity? How is it possible to respect this quest for identity, in itself
so characteristic of our modern times? Can we do so in a way which may contribute
in a positive fashion to legal and political modernism?
This much should be established as a given: abstract universality is being abandonned,
reserved only for moments of human moral catastrophe, as seen with the events
presently taking place in Somalia and the former Yugoslavia. Beyond these moral
cataclysms, it is rather the individual that captures our attention with his
or her definition of what he or she considers or would have considered his or
her identity: manhood, womanhood, first-nation or immigrant status. This phenomenon
is characteristic of our times, as is the fact that recognition of this identity
often clashes with claims founded on particularisms.
In this paper we wish to defend that only discursive proceduralism as put foreward
by Habermas adequately grasps the challenge of identity. Discursive ethics and
the radical democracy they defend offer the opportunity to examine cultural
identities under a new light. Indeed, this ethic considers that the identity
of words embrace cultural identities in dialogues with others. In our opinion,
discursive ethics as developped by Habermas can thus promote universalism discursively
open to actual, concrete man, and thus rise to the challenge of identity.
To demonstrate this, we will concentrate our efforts on the question of the
founding of valid norms. Indeed, the question of foundation reveals the conception
of identity that a theory embraces. In order to establish the pertinence and
originality of Habermas' discursive identity, we will first examine the question
of identity as put foreward by the modern abstract universalist school, as well
as by the concrete communitarians. We will then point to the weaknesses of each
school of thought. Finally, Habermas' view of the founding of valid norms, and
of the identities involved therein will be examined. The importance of this
theory in the quest for identity shall thus be submitted.
As a last reflexion, we shall examine the concept of democracy in the discursive
ethic.
Our intent is to compare the theories
of John Rawls and of Micheal Sandel as to the founding of norms, and more specifically
the concept of identity retained by each for the process. Let us submit that
we consider these thinkers to be representative of the modern abstract universalist
and concrete communitarian schools, respectively.
Rawls' Theory of Justice, and his idea of justice as fairness, is not
a simple repetition of classic social contract theory. There is in effect in
Rawls' work a sense of "social democratic" or "social liberal" sentiment, directing
his reflection towards ideas of social justice. This question cannnot be resolved
without providing a place for concrete man in the hypothetical social contract.
Rawls thus observes that our modern and pluralistic societies embody a plurality
of ways to pursue a personal conception of the good life.
This "fact of pluralism" thus discerned, since it is made up of any number of
particular identities, will be employed towards resolving the enigma of identity.
Rawls can demonstrate this by inviting each person, on the basis of his or her
concrete particularism, to participate in the conclusion of the hypothetical
social contract. Thus the challenge of identity is met.
The premises on which Rawls' theory is built do not change this conclusion.
However, although the theory is founded on Reason, and on the very reasonableness
of those very premises, in the purest Kantian tradition, the real problem appears
at the logical, or arithmetical, moment at which these premises will become
concrete; that is the moment described by Rawls as the "Veil of ignorance".
The meaning of this veil in Rawls' social contract ultimately denies any participation
of identity in the process of norm foundation.
Indeed, the meaning of this logical moment known as the "Veil of ignorance"
implies that the contracting parties renounce to any reference to their particular
identities. These individuals must forget who they are, and they must do so
to avoid the influence that their natural, social and historical advantages
will have at the moment of concluding the contract meant to provide social justice.
Thus, in order to establish political or legal norms, people must forget any
personal interest, as well as all history, context, and ultimately any particularity.
They must show themselves in the light of Protestant eschatology, as newborn
children, and on this basis attempt to acheive a normative foundation on which
they can build to solve the problem of legal action. Legal norms thus founded
purport to universality based on the sole foothold of Reason, notwithstanding
and independently of any context, general or particular.
Rawls' idea of universality is thus no longer a strictly semantic question,
as it was for Kant, but is rather a grouping of universal premisses to be found
in Reason whose reasonableness must permit concrete man to establish valid norms
through an abstract procedure.
Hence, the original position constitutes a heuristic position of equality and
freedom that must allow participants to choose valid norms within the procedure
of their creation.
What, however, is to be done with the question of identity? Rawls can certainly
be accused of sending a disencarnate person to negotiate a social contract,
thereby stripping him of any particular identity he may have had. The net result
is that abstract neutrality proscribes any resort to the social, political or
cultural identities of individuals. Consequently, it is no longer possible within
this doctrine to adress the issue of collective rights, since any claim to them
is necessarily based on a non-neutral emphasis of identity. This is precisely
the problem underlying present first-nations rights claims.
We will now consider the founding
of norms in the communitarian school, represented by Micheal J. Sandel. While
aware that communitarian theorists Sandel, MacIntyre, Waltzer and Charles Taylor
make up a heterogenous group, they nonetheless have in common the position that
the founding of legal and political norms is of concern to the community. Thus,
norms must be founded on the basis of communities made up of concrete beings,
and justifiable by suppositions of community identity. This is particularily
clear in Sandel's work.
According to Sandel, any reference to "justice" necessarily implies, firstly,
an individual, capable of making justice the horizon of his choices. Consequently,
Rawls' decision to found norms on a hypothetical choice, is, in Sandel's idea,
a theoretical faux pas. Indeed, for Sandel, people must have an independant
existence prior to the choice, and the reasons motivating them to make the choice
must be independant of the consequences that it may ultimately have. In other
words, Sandel assumes that people possess an identity that provides them with
the capacity to make choices.
For Communitarians, norms are founded as a result of a process in which socialized
and personalized individuals create norms of their choosing. Where Rawls would
have introduced a theoretical premise for foundation, Sandel presents a pratical
creation.
To grasp the process described in Sandel's work, one must begin with the individual.
This individual knows that he is a part of a context that he has not chosen,
and realizes that this will be of consequence when making choices. As a self-interpretive
individual, he or she is capable of self-reflection, in that it is possible
to put distance between oneself and context. This distance, however, always
remains both tentative and fragile. The individual knows that he is within a
given context even in his self-reflection. The self-reflective process brings
Sandel to the question of "who I am", which must be confronted to the question
of "who I wish to be". The parameters of Sandel's perspective are thus displaced
from a situation of founding toward the process of foundation.
Indeed, I share "who I am" and "who I wish to be" with those who are like me.
This is why Sandel illustrates this process by explaining that one may consult
a friend. Friends know us as well, indeed sometimes better, than we know ourselves.
This example then demonstrates that self-knowledge can be shared by the community.
As the freedom of each person is limited by the aspirations and ties that a
person cannot sever, so does justice find its limit in types of communities
that the identities and interests of the participants have bred.
The process of founding legal norms expressed by this model is self-comprehensive.
Those participating in the process specify their fundamental identities and
interests with reference to their community. Is there anything in the said community
that could sustain and legitimate normative renewal? From the standpoint of
legal philosophy, norm creation thus becomes a question of a community's internal
self-understanding.
Sandel deserves criticism in that the perspective of universality is overshadowed
if not lost in his theory. There is indeed somewhat of a confusion between the
public and private spheres, and Sandel is unable to differenciate the political
public good and the public good as an expression of individual identities. By
not clearly distinguishing these two ideas, the concept of common good becomes
muddled, and the status of particular identities are left in limbo. Political
and legal norms become dependant of a particular idea of good, and universality
gives way to particularism.
To summarize, we submit that neither
position is able to rise to the challenge of identity. The first would have
us renounce to our identity, after having recognized it, whereas the other would
have us sacrifice universality for the sake of particularism. Neither theory
can thus adequately grasp political and legal modernism.
It seems, in effect, that we must look elsewhere to find answers, and we submit
that Habermas' discursive model may provide some very valuable insights.
Jurgen Habermas, in his recent work,
has been preoccupied by the question of the founding of political and legal
norms. He has expressed a desire to find a middle ground somewhere between Rawls'
abstract universalism and concrete communitarianism. From a strictly philosophical
standpoint, the idea seeks to obtain the best from both the worlds of Kant and
Hegel. From the standpoint of legal philosophy, the idea seeks to reconcile
legal modernism with itself. In order to succeed, this ambitious project must
rise to the challenge of identity. In this process, norms will be validated
by a discursive test conciliating both individual particularism and the need
for universality in political and legal modernism.
Habermas validates norms in the following manner. He establishes to begin with
that abstract and concrete man are dissolved in the perspective of linguistic
communication, giving way to a new concept, that of practical communication.
This concept is founded on the idea that man is his discourse, his communication.
This "dissolution of man", which in no way implies the death of the subject,
is rather the "entirely dissipated sovereignty" of the forms of discursive communication.
For Habermas, discursive communication holds the necessary potential to establish
social validity.
However, practical discussion does not produce valid social norms
but rather tests their validity. The actual production of norms lies outside
the sphere of discourse, either in the real world or in systems, which caracteristically
execute this task.
In the real world, norm creation is a consequence of plurality, and plays an
integral part in the socialisation and personnification process. These norms
are in constant evolution, and provide the very pulse of the state of the real
world. In systems,
norm creation tends towards autonomous technicity so as to preserve itself.
Norms thus produced, whether by the real world or by systems, can only exist
in somewhat of a rough state, and await potential social validation. This expression
is one of normative pluralism, in which Habermas provides the perfect counterpart
to Rawls' factual pluralism.
Only linguistic discourse can ascribe social validity to norms. And as language
is produced by the real world, it follows that the real world must legitimate
norms. According to Habermas, intersubjective recognition socially validates,
and consequently legitimates norms. Indeed, intersubjective recognition is a
process of validation, which may be understood as a foundational discourse.
The criteria for measuring validity are produced by reciprocal-reflexive communication,
in itself a dialogue between the demands of reason and the demands of concreteness.
The moving force behind discourse, that is the capacity to obtain consensus
and agreement as to the validity of proposed norms without coercion, is taken
in charge by rationnality. Universality by discourse is reached inasmuch as
we reach concrete validation of a norm when we respect the best argument submitted.
We shall now examine two validation processes, that we can call the interest
test and the universality test. Habermas tells us:
" Any valid norm must satisfy the condition by which consequences and side-effects
that (foreseeably) stem from universal observation of a norm with the intent
of satisfying each and everyone may be accepted by by all ( and preferred to
repercussions of any other known method of resolution"
The criteria of universality to which Habermas refers no longer has the same
meaning as in the Kantian heritage. No longer a pure incarnation of abstract
reason, universality is to be seen in the perspective of dialogue, in that to
be universal, a norm must be acceptable to those who seek to adopt it.
Universality is no longer, as was with Kant, discovered by reason, but concretely
created by those concerned. Since the norm must take into account the interests
of all, it thus acquires the characteristic of universality, inasmuch as those
concerned by it are prepared to adhere to it.
As concerns the interest test, suffice it to say that norms should express the
interests of all concerned. Thus respect of particular conceptions of the good
life is necessary to found a norm. This respect will materialize in the terms
of political power, since facts participate in the creation of norms. It is
in this vital sense that those persons or groups of people that feel disadvantaged
by any given normative proposition possess to right to veto it.
It is in this way that Habermas attempts to reconcile the two flanks of political
and legal modernism. On the one hand, the public space, inhabited by power struggles
and interest clashes, finds a legitimacy that liberalist theory has never been
able to provide. On the other hand the "common good" is redefined as a normative
measure respecting pluralism, but a far more radical pluralism than that which
has heretofore been defined by liberalists.
Habermas affirms, through the procedure of discourse in norm creation, the priority
of the just over the good, inasmuch as there is free and equal access for all
participants in the process.
Cultural identities are thus confirmed, as the individual is no longer stripped
of his ties to context, but rather seen as a being who shares the symbolic reservoir
of the real world with others. Since this real world embodies both factual and
normative pluralism, the very fact that norms will be socially validated, by
persons in a concrete setting, possessing concrete interests, implies that the
idea of cultural identity is far more radical than in liberal thought. This
finding will direct us toward the radical conception of democracy that underlies
Habermas' idea.
Habermas expresses a radical conception
of democracy. This can can be seen by summarizing three main points adressed
earlier:
1. The hypothesis of an egalitarian, pluralistic and democratic "public place"
with a normative character, in which individuals can express both the universal
and particular aspects of their identity.
2. An open horizon of dialogue, within which one can understand oneself and
others, or more specifically others as one discovers oneself through dialogue
in which each person is both who he or she is and who he or she would like to
be.
3. Openness toward the realisation that everyone's life-story concerns us. What
is thus told is the story of "us", materialized at point 2., politicized (argumentitively)
at point 1.
Examining these points more closely, we can observe that the first point is
a radical reformulation of the Rawlsian project, whereas the second point constitues
a rationalization of the communitarian projet. This radical conception of democracy
begs us to reconceive our ideas about legal and political legitimacy.
We may do so by adopting Habermas' theory of entirely dissolved sovereignty:
"Entirely disseminated sovereignty does not materialize in the heads of the
associate members, but- if we can still speak of some form of incarnation- in
these forms of discursive communication that are opinion and reason so that
their fallible results may be presumed to be practical reason. Popular sovereingty,
without sujects and anonymous, intersubjectively dissolved (.....) Sovereignty
liquified by communication will act in the power of public discourse (....)"
Or still:
"It is within this sovereignty, having become fluid as a result of communication
that the necessary potential for reflexion is to be found, as long as it can
be heard through the proposed themes, arguments and solutions, as they appear,
freely throughout the public debate. However, it must also take shape within
the resolutions adopted by democratically constituted institutions, and resonsability
must be taken for the heavy consequences of these practical decisions. Power
brought about by communication, can, in absence of a desire for conquest, acts
on the premisses of the evaluation and decision procedure in public administration,
since it must argue normative demands in the only language understood by the
fortress thus besieged: the management of a fund of arguments that the administrative
power has a right to use instrumentally, but not- inasamuch as the structure
corresponds to a rule of law- ignore."
Here, Habermas expresses a radical conception of democracy, closer in many ways
to anarchist theory than to the social-democracy he holds dear. Nothing less
than the dissolution of modern theoretical sovereignty is proposed. Indeed,
as we have found, discursive communication implies the intersubjectivity of
subects, so that analysis is displaced toward a communication that tends to
promote reciprocal recognition of valid norms. Hence, we are no longer examining
some sort of abstract reason, as did Kant, Fichte or Hegel, nor do we stop at
the subjectivity of the subject as with Locke and the liberal tradition, we
do not even postulate the sort of collective subject put foreward by Bodin or
Hobbes, but rather, we now look to language as a social or socializing force,
affirming itself in an infinite process of acts of language which go to the
very constitution of real worlds. That is towards the differentiation that each
and every individual can and does make of culture, society and personnality.
The real worlds represent the potential horizon of understanding, which in turn
allows one to answer by yes or by no to any candidate to validity that is presented.
The subjects (that is the individual) have not died as in structuralism and
in french post-structuralism, but are quite present as speakers and listeners
in a communication, without, however, occupying the place of choice, which is
assigned to the normative meaning of the communication in which the participants
are involved. This normative meaning, as we pointed out before, seeks to coordinate
the shapes of the communicational act so that they might be reasonable for all.
We agree with Habermas when he claims that the modern theories of sovereignty
have dissolved into language, since the communicational sovereignty that is
language is really nothing more than the normative force of dialogue.
This radical conception of democracy also defends an idea of law, one in which
the rights of political participation become its underlying principle. We are
the argumentative authors of rights between one another. Hence, the principle
of law cannot be discovered, and does not belong to any majority or minority
power or authority. Indeed, the intersubjective paradigm as the basic principal
of a communicational conception of law provides us with the parameters with
which we may evaluate the validity of existing norms or those about to be created.
We now observe the creation of law from the standpoint of democracy, and can
evaluate as well as judge the real and symbolic situation expressed by concrete
identities.
This radical conception of democracy has some particular consequences for law,
the bullseye of modernism, on which we will stop a few moments to elaborate.
Let us begin by stating that consensus can only be obtained for a rather small
number of norms, thus a permanent dialogue between the majority and minorities,
cultural and otherwise, becomes necessary. The result is a dialogue within which
the minimalist choice that will be retained through consensus will normatively
open the public space to expressions of identities and cultures in law.
Hence, the communicational concept of law is apt to recognize law in a normative
fashion, so that, to use a metaphor, "the stranger may remain a stranger" to
us. Indeed, respect for factual pluralism, as defended by liberalism is thus
supplanted by normative (as well as factual) pluralism from a legal standpoint.
We can then recognize that society's project is intrinsically tied to ideological
debates and power struggles. Far from trying to establish a theory of justice,
whether it be Rawls' or Sandel's, this model, based on democracy, law and norm
creation, ascribes legitimacy to debate and power struggles. Habermas recognizes
that the welfare-state has hit a dead end, and he gives rights to individual
and collective social actors, with one restriction: if a normative solution
is sought, one must submit oneself to the very logic of that normativity. The
idea is to resolve conflicts without resorting to violence or short-sighted
strategy.
Perhaps our heads are now spinning slightly, as we realize that we have come
face to face with anarchy, albeit a specific version, that owes pratically nothing
to anarchism. Indeed, what we confront are personalized and socialized individuals
making social goals their own. This is a concept in which we can readily sense
the influence of such troublemakers of legal and political modernism from Vico
to Marx, and finally, Habermas himself.
We will now restate the more important
elements of our analysis.
We have seen that the challenge of identity is a major problem that contemporary
legal and political philosophy must address. We have also seen that the ways
of both abstract universalism and concrete communitarianism seem highly inappropriate
avenues of resolution. Only Habermas seems to offer promising inroads towards
a new communicational modernism. This very modernism, once attained, should
bear the dimensions of concrete man, sharing history, culture and horizons of
meaning in the quest for reconciliation with the universalist perspective.
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