Abstract
Hugh Baxter’s book Habermas: A Discourse Theory of Law and Democracy not only carefully recounts Habermas’ political and legal theory, but also raises several insightful criticisms of Habermas. Of particular note is Baxter’s criticism of Habermas’ system–lifeworld model originally presented in Theory of Communicative Action. Baxter argues that Habermas ought to discard the concept of the lifeworld because the distinction between lifeworld and system is no longer tenable in the model of political power presented in Habermas’ later work, Between Facts and Norms, which focuses more explicitly on law as a social system. Baxter contends that the lifeworld, which Habermas describes as those parts of our lives that are structured by communicative action and shared norms, is an unhelpful way of understanding our social world because, in reality, most of our interactions are structured both by communicative norms and by the strategic action typical of ‘the system’. I argue, however, that Habermas must retain the theoretical distinction between system and lifeworld, though in everyday practice they are not so neatly disentangled, because without such an element there would be no source of legitimacy for the law. Without a connection to the communicative action of the lifeworld, law and the political structure would be nothing but strategic action.
My comment on Hugh Baxter’s very engaging and thorough book Habermas: A Discourse Theory of Law and Democracy 1 will center on one key criticism that Baxter makes of Habermas’ model of democracy in Between Facts and Norms (hereafter cited as BFN). 2 Baxter argues that Habermas ought to discard the concept of the lifeworld in his model of democracy because the distinction between lifeworld and system is no longer tenable in the model of political power presented in BFN. 3 In Theory of Communicative Action (hereafter cited as TCA), 4 Habermas sets up his system–lifeworld model that he later relies on in BFN: the lifeworld consists of those parts of our lives that are structured by communicative action and shared norms while systems rely on strategic action. The communicative action of the lifeworld is an open and reciprocal exchange whereas the terms of system are based on non-communicative exchanges like those of money and political power whose rules are determined non-discursively. For example, the lifeworld is at work when we choose which restaurant to go to with a group of friends, whereas the system is at work when we sign our lease and pay our deposit for an apartment. In the first case, consensus is built around an exchange of reasons whereas in the second case, the terms, if negotiated at all, are negotiated in terms of self-interest, and legal rules and consequences are built into the agreement. In much of our lives, we experience both the system and the lifeworld at the same time. You smile at the waiter as he takes your money, adding a communicative aspect to an otherwise strategic transaction. The system–lifeworld framework remains in Habermas’ democratic theory, and though norms are operating even in the system, the lifeworld is the source of democratically valid norms. In an earlier version of this article, 5 I suggested that we can do away with the lifeworld but develop the role of the public sphere, but I have revised my comments because the lifeworld better captures what is best in Habermas’ model: the phenomenological account of the source of democratically legitimated norms.
While I agree with Baxter that the relation of the lifeworld to the core–periphery model needs some clarification, to do away with the lifeworld would in fact go against the primary virtue of Habermas’ democratic theory – that he weds a systemic, institutional-based analysis of society with deep respect for the lives of individual people as both members of society and political agents. I argue that with some interpretive work, we can account for the relationship of the system and the lifeworld with the tools already present in Habermas’ account of the public sphere in BFN. First I will explain the shift between Habermas’ two major works, TCA and BFN, focusing on the characterization of law using several metaphors or models that Habermas uses to explain his models of the law and society. 6 Second, I will recount Baxter’s argument that the lifeworld should be discarded from Habermas’ discourse theory of politics and law. Finally, I will give my account of how the lifeworld can, and must, be integrated into the model of the political system in BFN.
I
First, I will outline the development of Habermas’ theory of law in TCA and the revision that this theory undergoes in BFN. Following Habermas, I will use four metaphors to explain the relation of law to the system–lifeworld. In TCA, Habermas explains that each system operates with a steering medium that takes the place of communication in the lifeworld. Habermas argues that law anchors the systems to the lifeworld through their steering media. Money is the steering medium of the economic system, and power is the steering medium of the administrative system. Because money must be institutionalized in order to operate, it is anchored to the lifeworld through law. This means that economic interactions are always backed by legal ones. 7 For example, if I buy something on Amazon, and it never comes, I have legal recourse to get my money back, thus economic transactions are also legal transactions. Power is anchored to the lifeworld through law. Political power is not only regulated by legal institutions; in modern society, it also must be recognized as a legitimate use of power based on the values of the lifeworld that it operates in. Whereas economic exchanges must follow only certain rules, power must also be used not only legally, but legitimately. Power must be anchored in the lifeworld of communicative action because power must be recognized as legitimate in the public sphere, meaning that it must refer back to a consensus that only communicative action can ensure. As Baxter describes it, Habermas flirts with the idea that power must be anchored in the lifeworld through democratic procedure, but he never quite draws this conclusion in TCA. 8 Thus, our first metaphor is that law acts like an anchor for the systems in the lifeworld, and we should notice that through law, the political system borrows normative legitimacy from the lifeworld – a conclusion that remains in BFN.
In TCA, at the same time that law anchors the systems in the lifeworld, legitimating the power of the administrative system, Habermas also argues that the systems and the lifeworld are radically uncoupled, our second model of system, lifeworld and law. Habermas writes: Members behave toward formally organized action systems, steered via processes of exchange and power, as toward a block of quasi-natural reality; within these media-steered subsystems, society congeals into a second nature … Norm-conformative attitudes and identity shaping social memberships are neither necessary nor possible in these spheres; they are made peripheral instead.
9
The uncoupling of the system from the lifeworld means that the organizational structure of the lifeworld, that is, communicatively achieved norms and social networks, have no effect on the systems that can interfere in the lifeworld. This seems clearly at odds with both the metaphor of law as an anchor and the model that Habermas will develop in BFN. It is the uncoupling of the system and the lifeworld that I argue Habermas must drop.
The radical uncoupling splits law into two distinct parts: law as positivity (law in the system) and law as institution (law in the lifeworld). Law is differentiated according to how it is legitimated. The legitimation of the law in the lifeworld, which relies on norms and values, cannot be the legitimation of law in the systems, which rely mainly on effectiveness. Law as positivity is legitimated only through reference to the procedure that created the law. 10 So, law as positivity governs the economic and administrative systems, which are characterized by strategic rather than communicative action. Law as positivity cannot refer to the lifeworld for legitimation because the system and the lifeworld are radically uncoupled. Thus the rules that regulate financial instruments are justified completely apart from lifeworld legitimation. Habermas says that law as positivity is ‘relieved of the problem of justification’ and refers only to its own structure for legitimacy. 11
Law as institution, however, needs more substantial legitimation. 12 Law as institution is closely linked with the lifeworld, and when it is questioned, its legitimacy must come from the lifeworld. Morality and freedom are important measures of whether or not law as institution is legitimate. According to TCA, examples of law as institution may be abortion laws, capital punishment, and other criminal or constitutional issues. 13 If these are called into question, pointing to the origin of the law is not enough, so the question of the morality of the law will be central to the debate. This distinction between two types of law and their legitimation will no longer make sense once we understand the democratic model of political power that Habermas develops in BFN. Thus, Habermas must reject the radical uncoupling of the system and lifeworld, and the bifurcation of law that follows from it. Though not explicitly, Habermas does just this in BFN, and Baxter is correct to note that parts of TCA and BFN are in conflict. 14 However, if we drop the idea of the radical uncoupling of system and lifeworld, and instead develop the idea of law as an anchor, there is enough continuity between the pictures of law and society in TCA and BFN to maintain the system and lifeworld concepts, although they will not be radically uncoupled.
From TCA, I have argued that we ought to maintain the metaphor of law as an anchor while dropping the notion of the uncoupling of the system and lifeworld and the attendant split of law into institution and positivity. In BFN, Habermas argues that the political system can be understood as a core–periphery, and we have a third metaphor for understanding legal institutions. With the anchor metaphor in mind, one would expect the core to be the administrative system attached to a periphery (perhaps understood as a lifeworld) through the courts and the legislature (as sorts of legal institutions). Yet, we find that the core of the politicalsystem includes not only institutions of raw political power, but also those associated with law. Courts, parliaments and administrative institutions exist alongside one another in the core. 15 It is unclear where law fits into this picture since the institutions of law are alongside those of the administrative system.
This core is surrounded by a periphery: the public sphere, where organizations and individuals communicate using shared norms and values. 16 Law, created in the core, must be responsive to communication flows from the periphery in order to be legitimate. 17 This model of communication flow from the periphery to the core shows how the democratic principle can operate. The democratic principle states: ‘[O]nly those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive practice of self-determination.’ 18 Law is explained with a fourth metaphor/model: a translator between differing languages of lifeworld and system. Habermas explains that civil society through the public sphere articulates claims and demands on the political system in ordinary language, which is translated into legal codes that can be processed by the administrative system and the economic system. 19 This translation is necessary because the democratic will of a group of people cannot on its own, for example, force banks to change their practices, stop drones from being sent into Pakistan, or force universities to have non-discriminatory hiring practices. In other words, protests and editorials are not enough on their own to prompt political change – some kind of institutionalization must take place in order for the democratic impulses actually to take effect. Law translates normative claims into the kind of strategic communication that banks, government agencies and quasi-public institutions must respond to. Thus, the final model of core–periphery needs to be explained in terms that maintain the system–lifeworld distinction and the picture of law as translator while rejecting the notion of the radical uncoupling of system and lifeworld.
II
Baxter makes two major arguments for his claim that Habermas ought to do away with the lifeworld concept. First, the lifeworld as described by Habermas is split into three components: personality, society and culture, but Baxter argues that it makes no sense to think of the lifeworld as made up of three parts because then we have to imagine which part the law as anchor attaches to. Furthermore, we have to locate the public sphere and civil society in one part of the lifeworld, which could cause confusion. 20 Without going into detail on this point, I agree with Baxter that Habermas could have more fruitfully described the components of the lifeworld as functions of the lifeworld instead of parts of it. 21 Still, this critique does not force us to give up the lifeworld, nor does it pose an insurmountable obstacle to Habermas’ overall theory.
Second, in a more developed critique, Baxter makes the argument that this core– periphery model does clearly fit with the system–lifeworld model of TCA, posing many problems for where to place or how to understand the lifeworld. 22 Since the core–periphery model is preferable because it offers a picture of democratically legitimate law, Baxter argues that we must give up the lifeworld, leaving the core–periphery as a system with an environment, modeled on the systems theory presented by Niklas Luhmann. 23 The claim that Habermas ought to take on more of Luhmann is beyond the scope of this article, but the related point that the lifeworld ought to be discarded can be evaluated without examining the claims about whether or not Habermas has taken or should take on more Luhmannian theory.
Baxter argues that the radical uncoupling of the system and the lifeworld is untenable in the new model because the core includes not only a strategically operating administration, but also legislatures and courts which operate with communicative action and generate law.
24
Law is supposed to be more than just strategic because it is an anchor for the system in the lifeworld. Thus, the core is not unambiguously strategic and systemic because legal institutions are included, and Habermas needs law to be communicative as well as strategic if his theory is to be cashed out in a meaningful way.
25
It seems that the core–periphery model is incompatible with the system–lifeworld distinction, and especially their radical uncoupling, because the core is not purely systematic but includes norms and elements of communicative action. Baxter writes: The difference between ‘system’ and ‘lifeworld’ – between core and periphery – now is not a sharp distinction between the presence and absence of communicative action (or even discourse). Instead we can speak only of more or less reliance of communicative action versus reliance on command.
26
The core–periphery has confounded the system–lifeworld uncoupling, and hence, for Baxter, the lifeworld no longer fits.
III
In this section, I argue that we can map the system–lifeworld distinction onto the core–periphery model, and we must maintain the lifeworld because the lifeworld is the source of democratically valid norms. Baxter’s second argument against the lifeworld would hold if we understand the system–lifeworld distinction as an all-or-nothing categorization of institutions. However, there is plenty of evidence that the mere presence of some communicative action in an institution does not challenge Habermas’ theoretical framework. Habermas argues: Moreover, a stratification exists between formally organized spheres of interaction that are legally constituted and those spheres that, primarily regulated through extralegal institution, merely have the overlay of law. In formally organized spheres like the economy or the state apparatus, most interactions are guided by law and, even from the actor’s perspective, referred to law, whereas in spheres like the family, neighborhood, or educational system it is only in cases of conflict that the law emerges from the background and enters the awareness of the actors.
27
While the legislature is not purely strategic, it is primarily guided by law. There are instances of genuine communicative action, but at the end of the day, in the USA, Congress votes, and laws dictate the shape of the discussion from the moment a Congressional session starts. Congress does not make decisions the same way that a group of friends choosing a restaurant does. Thus, while the core is not absolutely devoid of communicative structures, it is still what Habermas calls a ‘formally organized sphere of interaction’.
Thus, there must be a way for the communicative impulses of the periphery as public sphere to influence the political system, which is driven by strategic action not communicative consensus. Habermas writes: ‘Within the core area … the parliamentary complex is the most open for perceiving and thematizing social problems, but it pays for this sensitivity with a lesser capacity to deal with problems in comparison to the administrative complex.’ 28 Thus, we have within the core a sort of outer core, which is marked by interactions that are less strategic than the administrative hard core, due to its close dependency on the public sphere. This shows that mapping the layers of the core–periphery model onto the system–lifeworld distinction is indeed messy, but I do not think that this requires the dissolution of the distinction between communicatively organized and strategically organized spheres altogether. The core contains institutions that are both strategic and communicative, but to varying degrees. Rather than a sharp distinction, we have a distinction of gradation, which allows for the intimate relationship between the public and the political system, especially through the law-generating portion of the core that is still systemic, though more open to the communicative action of the lifeworld. Baxter notes that it is a possible way to think of the distinction as one of gradation, but he does not seriously entertain the possibility that giving up the radical uncoupling of the system and lifeworld does not mean that the distinction fails altogether.
If the distinction between system and lifeworld has become so complex, why do we need it? The answer is that the system, though it does have norms operating within it, cannot legitimate itself. It needs a source of valid norms to be legitimate, which we saw in Habermas’ description of the proper flow of communication from the periphery to the core in a democracy. Unpacking this process will show us the role of the lifeworld in a stronger way. Due to the complexities of a modern society, the core cannot constantly look to the periphery for legitimation, and so the core operates mainly through routine. However, these calcified routines can cease to be effective and risk de-legitimation. 29 The risk of de-legitimation should remind us of the fact that political systems are anchored in the lifeworld through law and depend on the lifeworld for legitimation. Because the laws carried out by the administration affect the lives of those living under them, individual subjects of the law are most sensitive to the failure of these routines. 30 When the political system is no longer appropriate to the needs of the public, individuals who are suffering the inefficiencies or injustices of the calcified system can build consensus for change in the public sphere. Habermas calls this moment ‘problematization’. 31
Baxter mentions problematization but pays little attention to its implication: it is the lifeworld that drives problematization. Habermas notes that the political system has little incentive either to problematize routines or to acknowledge that new situations cannot be addressed by current routines.
32
Thus, problematization requires the ability of the public sphere to recognize problems and express them in such a way so as to disrupt the normal, routine operations of the core.
33
Habermas writes: Such experiences are first assimilated privately, that is, are interpreted within the horizon of a life history intermeshed with other life histories in the contexts of shared lifeworlds. The communication channels of the public sphere are linked to private spheres – to the thick networks of interaction found in families and circles of friends as well as to the looser contacts with neighbors, work colleagues, acquaintances, and so on.
34
When the political system fails, people participate in communicative rationality, using their shared norms to evaluate the output of the systems and demand the appropriate changes. The public sphere – the communication network in which the filtering and bundling of communication among members of the community forms public opinion – amplifies these communications as they reach a kind of critical mass. 35 Thus, the public sphere is a mirror in which the private experiences of the failure of the systems are reflected. More than just a network of associations, the public sphere arises from the background of the lives of people – the lifeworld – who are clients of the political system and experience its successes and failures. The public sphere is a part of the lifeworld, but it is dependent on the ‘thick’, real experiences, struggles and background norms that make up the lifeworld.
Baxter argues that the history of the term ‘lifeworld’ yields insight into why Habermas insists on maintaining the concept. I agree with Baxter that, stemming from the analyses of Husserl and Schutz, this term implies a phenomenological perspective on the world, and this perspective emphasizes the everyday way we as agents and ‘clients’ of the systems experience the world. Baxter seems to see this as another reason to abandon the lifeworld. He writes: ‘One could analyze the “lifeworld” of the New York Diamond Business, or a Mafia family, or floor traders on the New York Stock Exchanges, or a conference among social systems theorist.’ 36 This is true, but does not in any way detract from the necessity of the lifeworld in the democratic model of society. Baxter is correct that the lifeworld presents a perspective from which we understand the political system that most directly brings our shared norms to bear on its operation. Without a perspective that takes the view of individuals as agents into account, there would be no way to understand the public sphere normatively, as making valid democratic demands. If we, as Baxter suggests, rid the Habermasian model of the lifeworld but amend the system to look more like Luhmann’s autopoietic system, we are left with a lopsided theory that cannot accomplish what BFN sets out as the primary objective for modern political theory: the development of a normative account of how democracy ought to work by reference to the lives and values of those who are members of a democracy.