Habermas vs Judge Dredd- Faktizität und Geltung

 My cousin Vijay had a classmate who when asked, at his birthday party, what he wanted to be when he grew up, answered 'I want to be a Judge'. It so happened that a Supreme Court judge was attending the party. He asked the boy if he would like to come and observe how Judges settle legal cases. The boy was reluctant to accept the invitation. The judge was elderly. He didn't look at all like Judge Dredd- his favourite Comic book hero. Still, he might own a big gun and use it to shoot criminals. Thus the boy did go to the Supreme Court building. Tension built up within him as the Judge kept listening to boring arguments. When would he get round to shooting people? The boy's Mummy explained that Judges don't shoot people. Why not become Prime Minister instead? Since Granny had been PM & got shot, & Daddy had been PM & was blown up, the boy decided to settle for being a permanent Leader of the Opposition.

Habermas was a bit like that retarded little boy. He didn't want to be an out-and-out Commie- because that might entail suffering poverty & privation in East Germany- nor did he want to make some useful contribution to the German mainstream left. Thus he led the opposition to the 'tension between Faktizität und Geltung- i.e. the fact that Judges don't shoot people and that which one's close study of Judge Dredd comics would cause you to consider normative. 

What lies 'between Facts & Norms'? The answer is 'Expectations'- more particularly those which are 'action guiding'. John Muth provided a theory of 'Rational Expectations' whereby if there is 'common knowledge' & people expect the prediction of the correct economic theory, then there is rapid convergence to a 'reflective' equilibrium.

 Habermas, in his book with that title, claims otherwise. He thinks the law is a power that extracts obedience such that facts are changed. This is why, in Germany, the law against rape ensures that no rape occurs. This is a fact. Suppose the law banned masturbation. Masturbation would disappear. If levitation were made compulsory, people would fly around the place. 

Surely I making this up? Even a German pedant couldn't hold so absurd a belief. Sadly, he can do so provided he is able to disguise it from himself with pseudo-intellectual jargon

William Rehg, in this introduction to 'Between Facts & Norms', writes of 

The Duality of Modern Law

Which is the doctrine that national and international legal systems are distinct, separate, and independent entities. Under dualism, international treaties must be explicitly translated into national law through legislation to be valid and enforceable by domestic courts, separating them from the domestic order.

But this isn't what Habermas means. 

To approach the analysis of modern law in terms of a tension "between facts and norms"-or between "facticity and validity," to translate the German title of the book more literally- is not so surprising.

There is no tension between what is 'de facti'- which is independently verified- and what is 'de juris'- which is endogenously determined within the legal system in a 'buck stopped' manner- i.e. there is a Supreme Court which has the final word.  

The legal sphere has long been characterized by theorists in terms of a duality of this sort.

No. There is a 'bright line' distinction, not a duality. In the Anglo Saxon tradition we might say 'A jury decides matters of fact. The Judge decides matters of law.' On the other hand, one could at one time have said there was 'duality' between Equity & Common law. With respect to facts, we could say that there is duality re. admissibility. The same fact may be admissible in one case but not another. 

As we shall see, this tension resides at several levels, but at each level we find a social reality on the one side and a claim of reason (which is sometimes belied by the reality) on the other. Consider, for example, compulsory laws backed by sanctions.

This is positive law or law as command.  

On the one hand, such laws appear as the will of a lawgiver with the power to punish those who do not comply; to the extent that they are actually enforced and followed, they have an existence somewhat akin to social facts. On the other hand, · compulsory laws are not simply commands backed by threats but embody a claim to legitimacy.

All legal commands are legitimate. However, legitimacy may exist even if there is no law by reason of not being contested. I am legitimately the President of the Institute of Socioproctology simply because nobody else wants that post & the thing is not per se illegal.  

Oliver Wendell Holmes's insistence that we must understand law as the "bad man" does-that is, look at laws only in view of the possible negative consequences of being caught at lawbreaking- cannot be the whole story.

There is the Law Merchant & that of Contract etc. What is or isn't a 'vinculum juris' is itself a justiciable matter. However, any judgment of a court is a command even if it says it is appealing to natural law or morality. The command may or may not be obeyed. That is a separate matter.  

In fact, many citizens are not consistently "bad" in this sense, and it is doubtful whether a system of law could long endure if everyone took this external approach all the time.

It could not endure if the external approach wasn't enforced at least some of the time and at some places. What Habermas is getting at is that laws would be difficult to enforce unless the people accepted their legitimacy. Sadly, kill enough people & obedience follows by itself. The people have to accept what they can't change or, indeed, challenge, without being quickly and very painfully put to death. 

At least some portion of a population, indeed the majority, must look at legal rules as standards that everyone ought to follow, whether because they reflect the ways of ancestors, the structure of the cosmos, or the will of God, or because they have been democratically approved or simply enacted according to established procedures.

No. This is wholly unnecessary. That is the lesson of history. Habermas may say 'I wish things were otherwise', but he might equally disapprove of the Law of Gravity or Evolution by Sexual Selection. The only 'tension' here is between wishful thinking & being a fucking grown-up.  

What H. L. A. Hart has termed the "internal aspect" of law

i.e. an internalizing of a legalistic ethic by those involved in the practice of the law 

is a function of its legitimacy or social recognition. 

Hart considered this internal aspect essential to distinguish a true legal system from a mere "gunman situation". Hart was wrong. India had a 'true legal system' even though everybody thought it was illegitimate by reason of foreign origin even though the framers of the constitution adopted the doctrine of 'autochthony'. Still, the fact that there was nothing to replace it with (Gandhi's attempt to set up a parallel 'Swadesi' justice system had failed immediately) meant it continued to exist. 

Hart was a second generation Jewish immigrant & more open to Continental ideas. My impression is that doctrine of political question has weakened as the British legal system yielded to Brussels. Will this be reversed?  

Exactly how such legitimacy should be construed is a further question, of course.

If the Crown in Parliament is supreme, then some might say there has been judicial overreach in the UK. But we can't say any Supreme Court decision is 'illegitimate'. It is up to Parliament to decide otherwise.  

The important point is this: law is a system of coercible rules and impersonal procedures that also involves an appeal to reasons that all citizens should, at least ideally, find acceptable.

There are many such systems. Some Boarding Schools, when I was young, had such systems. Professional Associations have powers of coercion- e.g expulsion or suspension for malpractice. Certain religious sects or ideological parties may act in a similar way. This may have no legal basis or even run counter to the law. 

What of the law itself? Does it need to 'appeal to reasons' citizens find acceptable? No. This may be desirable but it is not a defect in a ratio if the thing is omitted. 

Habermas is heavily indebted to Immanuel Kant's concept of legitimacy,

which was illegitimate in that he was ignorant of the law. Also Kant's concept of concept was crap.  

which brings out this tension in law particularly well. Consider, for example, the basic equal rights of individual liberty, such as property and contract rights.

There is no such 'equal right'. There is restricted eligibility (dokimasia).  

Kant grounded their legitimacy in a universal principle of law (the Rechtsprinzip, often trans- xii William Rehg lated as "principle of right"), which can be interpreted as summarizing the conditions under which it is possible for a morally oriented subject to universalize coercible limits on the external behavior of strategically oriented individuals.

  Kant thought that 'an action is right if it allows for the freedom of each individual to coexist with the freedom of everyone else according to a universal law.' But that which is 'right' isn't necessarily that which is legitimate or lawful & vice versa. It would be nice if the eldest son of the King is also the best person to succeed him but where there is 'primogeniture', the legitimate heir isn't that person. This doesn't mean that every public office in the land should be inherited by the eldest son. Primogeniture may be restricted to the Crown & the Aristocracy. 

Even if there were a 'universal principle of law', it would be defeasible.

According to Kant, the "moral conception" of law is "the sum of those conditions under which the free choice ( Willkur) of one person can be conjoined with the free choice of another in accordance with a universal law of freedom."

No one knows even one of those conditions let alone the sum of all them. One may say 'the moral conception of law is that which, if everybody had it, would lead to the rapid discovery of techniques to make everybody immortal and grant them possession of a really nice galaxy of their own from which they could instantaneously visit everybody else in their own galaxies'  We can't prove such a moral conception doesn't exist but we can be sure it is currently inaccessible to us. There is little point talking about it unless you are running a UFO cult.                                          

This analysis of rights

does not exist. There is 'Hohfeldian analysis' on the one hand and there is virtue signalling diarrhoea on the other. Hohfeld is useful & should be better incorporated into 'Law & Econ'.  

brings out the internal tension between facticity and validity

i.e. the tension between thinking Judges should be like Judge Dredd & the fact that no such Judges exist. Comic books are only a valid source of knowledge in a comic book world.  

inhabiting law in general: as actionable and enforced, such rights (and legal norms in general) represent social facts

No. They refer a set of Hohfeldian immunities & entitlements. They are legal, not social, facts. Socially, I may be accepted as the spouse of Beyonce. But, legally, I am not her spouse unless we actually got married and did not subsequently divorce.  

demarcating areas within which success oriented individuals can choose and act as they wish;

There is no such demarcation. There are immunities but they are defeasible. Someone else may have a superior immunity or entitlement.  

as linked with a universalizable freedom,

There is no such link. One might as well say- 'it would be nice if freedom were universalizable & if Mahua Moitra's dog anally rapes Rahul Gandhi then Amit Shah too is buggered'  

rights deserve the respect of moral subjects,

No. My right to fart while wanking in the privacy of my own home doesn't deserve any respect whatsoever even if everybody has an equal right.  

and thus carry a claim to legitimacy.

If the law upholds a claim- the we may say legitimacy arises. But why bother? The fact is, things we respect don't thereby become legitimate. You may respect me for my twerking. You may consider I have a strong claim to be considered Beyonce's true heir & successor. But, I am not her legitimate daughter even though I have often claimed otherwise while drunk off my head.  

However, Kant's account of legitimacy, as Habermas reads it, ultimately subordinates law to morality.

Nothing wrong with that. Many people defy what they consider to be immoral laws.  

Kant also relied on a metaphysical framework that is no longer plausible:

it was never plausible. The question was whether it was self-consistent? Yes, provided it wasn't informative in any way. In other words, it was either silly or utterly meaningless.  

on his account, the possibility of universal rational acceptability depends on a preestablished harmony of reason beyond the empirical world. Whereas subordinating law to morality oversimplifies the rational bases of legitimacy, invoking a transcendentally unified reason presumes consensus prior to actual public discourse.

But thinking 'actual public discourse' is desirable presumes that there could be a consensus that such is the case. Yet, nobody wants any such thing unless very strict eligibility criteria are applied. Otherwise you could have a State Legislature fixing the value of Pi or some other such foolishness.  

Nonetheless, Kant's appeal to rational consensus as a regulative ideal captures an important part of the tension in law.

No. It merely captures a particular notion in Contract Law re. whether or not there is a 'meeting of minds'. French law is regarded as being more stringent in this respect than Anglo-Saxon law. However, in practice, there may be little difference.

If law is essentially constituted by a tension between facticity and validity

then that is what the historical record would show. It doesn't. The writing of Constitutions, the making of laws by legislators or stare decisis judgments are all delegated activities which, in most instances, have had minimal 'popular' participation.  

- between its factual generation, administration, and enforcement in social institutions on the one hand and its claim to deserve general recognition on the other

they are one and the same. The subset of law which is 'generally recognised' is the same as the subset regarding expected enforcement. 

- then a theory that situates the idealizing character of validity claims in concrete social contexts

is similar to a theory which explains that Judges shoot criminals, just like Judge Dredd- at least from the idealizing point of view.  

recommends itself for the analysis of law.

to cretins. Lawyers who can analyse law in a manner which greatly benefits their clients become very rich. 

This is just what the theory of communicative action allows,

i.e. you can teach this shite to cretins doing Media Studies as opposed to guys who want to make a lot of money as Corporate attorneys. 

without the metaphysical pretensions and moralistic oversimplification we find in Kant.

Kant was a high IQ dude. Habermas had shit for brains. Both knew nothing about the Law or how Democracies work.