Habermas: The Discourse Theory of Law and Democracy

By Hugh Baxter

Though many legal theorists are familiar with Jürgen Habermas's work addressing core legal concerns, they are not necessarily familiar with his earlier writings in philosophy and social theory. Because Habermas's later work on law invokes, without significant explanation, the whole battery of concepts developed in earlier phases of his career, even otherwise sympathetically inclined legal theorists face significant obstacles in evaluating his insights.

A similar difficulty faces those outside the legal academy who are familiar with Habermas's earlier work. While they readily comprehend Habermas's basic social-theoretical concepts, without special legal training they have difficulty reliably assessing his recent engagement with contemporary legal thought. This new work bridges the gap between legal experts and those without special legal training, critically assessing the attempt of an unquestionably preeminent philosopher and social theorist to engage the world of law.

• Language: English
• Publisher: Stanford Law Books
• Release date: May 17, 2011
• ISBN: 9780804777810

Book preview

Habermas

THE DISCOURSE THEORY OF LAW AND DEMOCRACY

Hugh Baxter

STANFORD LAW BOOKS

An Imprint of Stanford University Press

Stanford, California

Stanford University Press

Stanford, California

© 2011 by the Board of Trustees of the Leland Stanford Junior

University. All rights reserved.

No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press.

Printed in the United States of America on acid-free, archival-quality paper

Library of Congress Cataloging-in-Publication Data

Baxter, Hugh.

Habermas : the discourse theory of law and democracy / Hugh Baxter.

   p. cm. — (Jurists—profiles in legal theory)

Includes bibliographical references and index.

ISBN 978-0-8047-6912-9 (cloth : alk. paper)

1. Habermas, Jürgen. 2. Law—Philosophy. 3. Sociological jurisprudence. 4. Democracy—Philosophy. 5. Discourse analysis. I. Title. II. Series: Jurists—profiles in legal theory.

K230.H332B39 2011

340’.1—dc22

2010039808

Typeset by Thompson Type in 10/13 Galliard

Contents

Acknowledgments

Introduction

1.   Basic Concepts in Habermas’s

Theory of Communicative Action

2.   Habermas’s Reconstruction of Modern Law

3.   Discourse Theory and the Theory and Practice of Adjudication

4.   System, Lifeworld, and Habermas’s Communication Theory of Society

5.   After Between Facts and Norms: Religion in the Public Square, Multiculturalism, and the Postnational Constellation

Notes

Bibliography

Index

Acknowledgments

This work has been underwritten in part by summer research grants from Boston University. Thanks to the School of Law for that support.

I’ve presented prior versions of parts of this book at the following venues: faculty workshops at the University of Illinois, the University of Texas, Northeastern University, and Boston University; the 2007 and 2008 annual meetings of the Law and Society Association; and the 2000 meeting of the Working Group on Law, Culture, and the Humanities. Thanks to the participants at those sessions.

Special thanks to friends and colleagues who read and commented on preliminary versions: David Lyons, Pnina Lahav, Richard McAdams, Manuel Utset, and Daniela Caruso. I have benefited also from communications with Cristina Lafont and John Victor Peterson.

Thanks to the anonymous reviewers at Stanford University Press, particularly Anonymous Reviewer #3.

Heartfelt thanks for the guidance I received over the years from Rhoda Greenspan, Michael Caplan, Kevin Lyons, Bonnie Teitelman, Peg Baim, Sharon Cardamone, and Rachel Bairstow.

In memory of my friend, Francis Tomasic, who introduced me to Habermas’s work.

Deepest appreciation to my parents, Cynthia Lewis Baxter and Maurice Baxter, for their love and support throughout my life.

For my wife, Marina Leslie—with gratitude, much love, and great anticipation of our future years together.

HABERMAS

Introduction

The work you have in front of you is a critical analysis of the complex theory of law and democracy developed by celebrated German philosopher and sociologist, Jürgen Habermas (1929– ). It presumes no prior familiarity with Habermas’s work and is designed to be understood by those with little prior acquaintance with law and legal theory. As with other volumes in the Jurists series, I begin with a brief biographical sketch of my chosen figure,¹ which I integrate with a brief outline of the book’s plan and central arguments.

Habermas was born on June 18, 1929, in the German town of Gummersbach, located in North Rhine-Westphalia about forty miles from Düsseldorf. His grandfather was a Protestant minister and seminary director, and his father served as a district director of the Bureau of Trade and Industry.² Habermas describes his father as having been a passive sympathizer with the Nazi regime.³ According to Habermas’s recollection, The political climate in our family home was probably not unusual for the time, . . . marked by a bourgeois adaptation to a political situation with which one did not fully identify but which one didn’t seriously criticize either.⁴ Near the end of the war, Habermas joined Hitler Youth, and he soon was sent, with other boys apparently as young as twelve, to man the Western defenses.⁵ Habermas recalls that, at the end of the war, when he was just short of sixteen years old, the radio was reporting the Nuremberg trials, movie theatres were showing the first documentary films, the concentration camp films. . . . All at once we saw that we had been living in a politically criminal system. I had never imagined that before.⁶ The experience was shattering for Habermas, and undoubtedly it was fundamental in developing the left-wing political convictions that underlie both his relatively mandarin academic interests and also his numerous interventions into political controversies as, by the late 1980s, Germany’s leading public intellectual.⁷

Between 1945 and 1949, Habermas studied at gymnasium, and between 1949 and 1954 he pursued university studies at Göttingen, Bonn, and Zurich. In 1954, he completed his PhD at the University of Bonn, writing his dissertation on Schelling’s concept of nature. After serving as assistant to first-generation Frankfurt School philosopher Theodor Adorno at the Institute for Social Research, Habermas completed a second doctorate in Marburg. His dissertation (or Habilitationsschrift) is much read today (although not translated into English until 1989): The Structural Transformation of the Public Sphere: An Investigation into a Category of Bourgeois Society (1962).⁸ After serving as a professor at the University of Heidelberg, Habermas succeeded first-generation Frankfurt School figure Max Horkheimer as professor of philosophy and sociology at the Johann Wolfgang Goethe-University in Frankfurt (am Main).⁹

Habermas’s inaugural lecture at Frankfurt, "Erkenntnis und Interesse," formed the basis for his 1968 book of the same title, translated into English as Knowledge and Human Interests. Habermas’s argument in that work was that the natural and human sciences are related to fundamental cognitive or knowledge-constitutive (erkenntnisleitende) interests, rooted in our species life: interests in, respectively, the control of nature (the technical interest) and the establishment of mutual social relations (the practical interest). More speculatively still, Habermas argued for a third emancipatory interest in the elimination of repression, both individual-psychological and social, with psychoanalysis and Marxian ideology critique as the scientific models. While the theory was subjected to intensive criticism,¹⁰ leading to Habermas’s backing away from some of its central arguments, the underlying distinction between labor and interaction informed his later work. And Habermas continued to pursue the idea of a critical theory of society that had inspired his speculation as to an emancipatory cognitive interest.

After Knowledge and Human Interests, Habermas began to expand the already extensive theoretical influences on his work. In one line of inquiry, he investigated social systems theory, beginning a more-than-twenty-five-year debate with German sociologist Niklas Luhmann that lasted until the latter’s death in 1998. Habermas and Luhmann coauthored a 1971 book that contained their first but hardly last critical exchange.¹¹ Habermas followed that work with a more influential 1973 study, Legitimation Crisis. Two aspects of that book are especially noteworthy. The first is methodological: Habermas began his career-long quest of integrating insights from social systems theory, on the one hand, with more standard social theory that begins from the perspective of the acting subject. The idea, as Habermas put in Legitimation Crisis, was to develop a two-level theory of society, one that sees society both as system and as symbolically structured lifeworld of everyday action. Both paradigms, life-world and system, are important, Habermas argued. The problem is to demonstrate their interconnection.¹² The idea of integrating these two sociological perspectives has been a key concern for Habermas throughout his career.

The second significant development in Legitimation Crisis was substantive. The book represents Habermas’s attempt to update Marx’s theory of crisis tendencies in capitalism. Marx’s theory of the tendency toward economic crisis in capitalist systems depended on a theoretical premise—the labor theory of value—that Habermas rejects. While Habermas allows for the possibility of economic crisis, he argued that it was not beyond possibility that tendencies in that direction could be successfully managed by political intervention. Accordingly, his interest shifted more toward tendencies toward rationality crisis (essentially, overburdening of political planning capacity) and legitimation crisis (the inability of an expertocratic and planned state to secure the conditions of its own legitimacy). The latter form of crisis depends in turn upon tendencies toward motivation crisis—the possibility that the post-1960s generation would continue a path of questioning and rejecting the values and motivations presupposed by a capitalist economic system and a liberal democracy. This emphasis on social crisis theory went together with Habermas’s methodological focus on developing a two-level theory of society. Both themes, substantive and methodological, have been central parts of Habermas’s work, particularly up until his turn toward direct consideration of law and legal issues in 1992.

Another weapon in Habermas’s expanding methodological arsenal came from his encounters with Anglo-American analytic philosophy of language, particularly the speech-act theory of (among others) J. L. Austin and John Searle. The focus of speech-act theory on pragmatics, or the study of language in use, rather than (from Habermas’s perspective) the more abstract approach of formal semantics, was congenial to Habermas’s attempt to develop a theory of communicative action that could ground, ultimately, a new conception of rationality in action: one that he called, not surprisingly, communicative rationality. Around this time—the early and mid-1970s—Habermas was studying, finally, theories of social evolution as keys to his continuing attempt to recast Marxian understandings of social transformation.

All of these lines of inquiry converged in Habermas’s 1981 magnum opus, Theory of Communicative Action. This two-volume treatise alternated between readings of leading figures in social theory—Max Weber, Georg Lukács, Frankfurt School figures Horkheimer and Adorno, George Herbert Mead, Emile Durkheim, Talcott Parsons, and finally Marx—with more systematic development of his new two-level theory of society. The action-theoretical or lifeworld side of that theory was centered on his understanding of communicative action. The system side of that theory developed a Parsons-inspired theory of societies as evolving, input-output related networks of differentiated subsystems—the economic and administrative systems, on Habermas’s account. The lifeworld, he argued, was socially integrated by shared norms and values. With the development of capitalism, Habermas argued, economic and administrative systems historically evolved from the social lifeworld. These systems are characterized by mechanisms of systems integration, like the market, that bind together patterns of largely self-interested action through the often counterintuitive consequences of action rather than the actors’ intentions.

Habermas presented this complex, two-level evolutionary theory of society as a recasting of Weber’s idea of the rationalization of Western societies—that is, the incorporation of various forms of rationality and rational action into a variety of social settings. What Habermas tries to capture is what neo-Marxist but Weber-influenced theorists Georg Lukács, Max Horkheimer, and Theodor Adorno saw as a distorted form of rationalization, a development they called (and criticized as) reification. Habermas sees his task as rescuing this neo-Marxist appropriation of Weber’s theory of rationalization from Lukács’s lapse into apotheosis of the Communist Party and Adorno’s indulgence of self-conscious paradox in which a critical standard is literally inconceivable. While Habermas argues that the process Weber called rationalization had left unexhausted rational potential that could be exploited by, in particular, more radical democratization, his central theme is a more defensive crisis theory—a revision of the argument of Legitimation Crisis that now sees tendencies toward the colonization of the lifeworld. Leaving aside the Marxian question whether advanced capitalist societies might be headed toward economic crisis or crisis in material reproduction, Habermas focuses instead on tendencies toward crises in symbolic reproduction. By that he means an incompatibility between the functional imperatives of reproducing (primarily) the economic system and the requirements of society seen as lifeworld—social integration, socialization of persons, and cultural reproduction. The framework Habermas develops in Theory of Communicative Action still informs his work today, including his understanding of law and democracy. Accordingly, in Chapter One of the present book I provide a critical analysis of that framework.

Habermas wrote Legitimation Crisis and Theory of Communicative Action during his eleven-year stay as director of the Max-Planck Institute for social research in Starnberg, West Germany. In 1982, he returned to Frankfurt. His academic writing for the first few years back at Frankfurt centered around developing a communicative or discourse theory of ethics from his theory of communicative action¹³ and responding to the debate over modernity and postmodernity. With respect to the latter, Habermas maintained his position that the critical and rational potential of modernity had been realized only selectively in the development of a capitalist economy and bureaucratic state apparatus. Modernity is thus, in Habermas’s view, an unfinished project.¹⁴ His Philosophical Discourse of Modernity (1985) was notable for his engagement (though disappointing in my view) with Michel Foucault and Jacques Derrida, considered at the time as perhaps Habermas’s top theoretical rivals.

Habermas’s political interests became more sharply engaged with the debate, beginning in 1986, over West German revisionist historians’ account of the Nazi period. In this public political debate, carried out in the pages of Die Zeit and Die Frankfurter allgemeine Zeitung, Habermas argued that his conservative opponents had minimized German responsibility for the Holocaust. Against the conservative alternative of national pride, Habermas began to develop the idea of constitutional patriotism as the only form of national attachment that could do justice to universalistic principles of morality and political democracy. This idea of constitutional patriotism has remained important in Habermas’s recent work, emerging as his idea of responsible political attachment in increasingly multicultural societies.

Around the same time, and inspired by his ongoing encounter with Weber, Habermas began to turn his attention systematically, for the first time, to law and legal theory. His 1986 Tanner Lectures, Law and Morality,¹⁵ took their departure from Weber’s sociology of law and his conception of political legitimacy. The next year Habermas convened a five-year working group on legal theory that involved several German colleagues trained in the field. By 1992, Habermas had completed his monumental Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy.¹⁶ My critical analysis of Between Facts and Norms is the core of the present book: Chapters Two, Three, and Four.

Habermas’s project in Between Facts and Norms has two parts. The first is the discourse theory of law and democracy proper, which Habermas describes as a reconstruction of the normative self-understanding of . . . modern legal orders.¹⁷ The central theme of this part of the project is that legitimate law and radical democracy mutually presuppose one another. Habermas’s normatively ambitious discourse theory first develops an account of the system of rights that must be recognized, in one form or another, for a legal order to be legitimate. He then turns to the principles of the constitutional state that would be required to secure those rights. Habermas next test[s] and elaborate[s] the discourse concept of law and democracy against, first, contemporary discussions in legal theory, and, second, contemporary controversies in constitutional practice and theory.¹⁸

The second main part of Habermas’s project locates this discourse theory in a model of modern complex societies. Habermas has two purposes here. First, he wants to examine whether the discourse theory, developed through normative reconstruction, actually has a purchase on factually existing social conditions. Second, elaborating his theory of law and democracy through social-theoretical concepts allows him to deepen, and to make more concrete, his normative theory.

The plan of the present study is as follows. I begin, in Chapter One, by setting out the basic concepts of social action and social theory that Habermas incorporates from his work of the late 1970s and 1980s. Here my main focus is on the argument of Habermas’s two-volume Theory of Communicative Action (1981). In Chapters Two and Three I address the first part of Habermas’s work on law and democracy—the normative discourse theory proper.

Chapter Two considers Habermas’s reconstruction of modern law’s normative self-understanding. I discuss in the first part of that chapter Habermas’s account of the basic problematic of modern law—the risk of dissensus that has increased with social modernization—and I analyze the tension between law’s facticity and law’s validity that organizes Habermas’s entire theory of law and democracy. With that as background, I critically examine in Habermas’s analysis of the system of rights. After a section comparing Habermas’s derivation of that system with Rawls’s better-known generation of principles of justice from the original position, I go on to suggest some skepticism about Habermas’s largest claims for the system of rights: that it reconciles longstanding tensions between private and public autonomy and between the idea of basic rights and the idea of popular sovereignty. I then criticize Habermas’s account of the constitutional state, particularly his reliance on what he calls the discourse principle. This principle is the basis for Habermas’s theory of law and democracy, but I argue that it cannot bear the full weight that Habermas places on it.

In Chapter Three, I turn to Habermas’s testing of the discourse theory against recent developments in the theory and practice of adjudication. The first part of Chapter Three addresses the general theory of adjudication that Habermas develops in dialogue with Dworkin’s theory of constructive interpretation. The second part of Chapter Three considers the special case of constitutional adjudication. In both parts, I am critical of the uses to which Habermas puts the notion of judicial discourses of application—a notion that is central to Habermas’s idea of courts’ appropriate role in a separation-of-powers scheme. An additional difficulty in Habermas’s theory is its inability to account for—and Habermas’s understandable unwillingness to exclude as illegitimate—the common-law adjudication process that is basic to Anglo-American law. I criticize also the distinction Habermas tries to establish between his proceduralist theory of constitutional adjudication and the neorepublican theory of Frank Michelman. Finally, I consider the implications that Habermas’s proceduralist theory might have for constitutional law and democratic politics. Here I engage some recent developments in American constitutional law: Supreme Court decisions in the last few years that concern how electoral districts are to be drawn and whether corporate speech may be permitted to dominate public discussion surrounding elections.

Chapter Four focuses on the second part of Habermas’s theory of law and democracy: the communications theory of society and, in particular, the social-theoretical model of system and lifeworld that Habermas uses to organize that theory. My contentions will be that while Habermas appropriately chooses to revise the model presented in Theory of Communicative Action, and while the strategy of argument is a refreshingly prodemocratic conception rather than politically defensive crisis theory, the revised model nonetheless introduces some difficulties. I suggest in the last section of Chapter Four that Habermas might improve that model by selectively incorporating ideas from his long-time theoretical adversary, systems-theorist Niklas Luhmann.

During the time Habermas was writing Between Facts and Norms, the Soviet Union collapsed, and Germany was reunified. As the nation’s leading public intellectual, Habermas turned his attention to the new political situation, publishing (to speak for the moment only of books) Die nachholende Revolution (1991), focusing on the political developments in Eastern Europe and particularly East Germany; A Berlin Republic: Writings on Germany (1995); and The Inclusion of the Other (1996). The last collection is particularly rich, as it contains Habermas’s side of his much-anticipated 1995 debate with preeminent American political philosopher John Rawls as well as Habermas’s first systematic attempts to consider the possibilities for democracy beyond the nation-state. Inclusion of the Other also features Habermas’s taking up of the Kantian political project of perpetual peace under the heading the constitutionalization of international law.

Habermas since has pursued the idea of (what he calls) the postnational constellation, particularly concerning the possibilities for democracy beyond the nation state, and he has pressed severe criticism of American intervention in Iraq under the second Bush administration. During these years Habermas has become a prominent advocate of European integration, though in his most recent discussions he has sharply criticized what he takes to be the undemocratic means through which that integration, after the failure of the proposed European constitution, has been pursued.

Finally, and particularly in his Between Naturalism and Religion (2005), Habermas has sought to understand the worldwide resurgence of religion.¹⁹ He has weighed in on the debate over multiculturalism and the discussion over the role of religious argument in the sphere of democratic public debate. Along these lines, Habermas has jointly published a dialogue with Pope Benedict XVI, and he has sought to engage the moral and ethical questions surrounding new biotechnologies.²⁰

In Chapter Five I consider this spate of writing since Between Facts and Norms. In keeping with the present book’s focus on Habermas’s theory of law and democracy, I explore in particular three of Habermas’s main themes: the role of religion in the public square, political-philosophical issues surrounding multiculturalism, and the possibilities of democracy beyond the nation-state (with special attention to the European Union).

CHAPTER ONE

Basic Concepts in Habermas’s Theory of Communicative Action

Habermas begins his construction of the theoretical framework he develops in Theory of Communicative Action with a theory of action. He aims to go beyond standard conceptions of rational action to generate a theory of communicative action. In this form of action—or, more properly, interaction—participants pursue their goals either on the basis of an existing consensual understanding or with the aim of developing that kind of understanding (see section 1.1). Habermas sets his concept of communicative action within a concept of society: a concept that, following the phenomenological tradition in philosophy and social theory, Habermas calls society as lifeworld (see section 1.2).

Both in Theory of Communicative Action and later in Between Facts and Norms, Habermas takes the notion of the lifeworld as the basic conception of society, to be amended or supplemented only for cause. As I suggested in the Introduction, Habermas argues that in the course of social evolution—specifically, with the rise of a capitalist economy and a bureaucratic state—systems of economic and political action develop in which action is coordinated not by consensual understanding by the consequences of self-interested action. I consider in section 1.3 Habermas’s idea of such systems. Habermas’s thinking here is inspired by his reading of Talcott Parsons, the preeminent American sociologist from the early 1950s until perhaps the early 1970s. In section 1.4, I consider how Habermas puts the lifeworld and system concepts together in his model of system/lifeworld interchange. This model is the basis of Habermas’s critical theory, from its development in 1981 at least until Habermas revised it in his 1992 work Between Facts and Norms.

My argument will be that in elaborating each of these basic concepts, and particularly in his account of system/lifeworld interchange, Habermas tends toward polar distinctions that cannot be maintained. Communicative action is not so clearly demarcated from other forms of action as Habermas suggests, and because Habermas constructs his notion of the lifeworld around communicative action the distinction between system and lifeworld similarly is too sharply drawn. This tendency toward stylized oppositions, I contend, ultimately undermines the system/lifeworld model Habermas develops in Theory of Communicative Action. And thus to the extent Habermas relies on that model in Between Facts and Norms, his account of law is correspondingly weakened. Further, I argue, the critical model Habermas develops in Theory of Communicative Action is more functionalist than straightforwardly normative. Habermas argues that the overextension of economic and bureaucratic forms of rationality threaten the symbolic reproduction of the lifeworld, inducing forms of social crisis that he calls collectively the colonization of the lifeworld. I will argue in subsequent chapters that Habermas revises this politically defensive strategy by arguing, more positively, that the idea of legitimate modern law and more radically democratic political practice mutually imply one another.

1.1 COMMUNICATIVE ACTION

Habermas distinguishes among three types of rational action¹: instrumental action, strategic action, and communicative action. Typically he marks the differences among these types with a pair of crosscutting distinctions.² One distinction is between two orientations of action, toward success or toward an understanding between the actor and others. The other distinction tracks Max Weber’s notions of social and nonsocial action—where social action means action in which the actor takes account of the behavior of others and orients her action accordingly.³

Both instrumental action and strategic action are oriented toward success rather than mutual understanding. They differ, however, along the lines of Habermas’s second distinction. Instrumental action is essentially the solitary performance of a task, according to technical rules. As such, instrumental action is nonsocial, in Habermas’s typology. Strategic action, by contrast, is designed to influenc[e] the decisions of a rational opponent, according to rules of rational choice. Instrumental actions may be elements of a pattern of social action—either communicative or strategic—but they do not themselves comprise a distinct type of social action.⁴

1.1.1 The Distinction between Communicative and Strategic Action

More difficult is the distinction between communicative and strategic action. The general distinction Habermas draws between these two forms of action—orientation toward success versus orientation toward understanding—is not by itself very helpful. As Habermas allows, communicative action as well as strategic action is goal directed, and the goals of communicative action are not necessarily reducible to the aim of reaching understanding. Orientation to success versus orientation toward understanding, then, does not seem a promising basis for distinguishing between strategic and communicative action—at least not without additional explanation. Nor does the term communicative by itself mark the difference: Habermas acknowledges both that communicative action does not consist wholly in speech acts⁵ and also that strategic action, too, may include the use of speech.⁶

The picture becomes clearer, however, when one considers the purpose of Habermas’s typology. As a social theorist, Habermas is interested primarily in how individual actions can be coordinated into patterns of interaction.⁷ For this reason, Habermas generally uses the terms communicative and strategic to refer to types of interaction rather than to discrete individual actions. The problem Habermas sets himself—and the basis for his distinction between communicative and strategic action—is to identify the mechanisms that coordinate these two types of interaction.⁸

This task Habermas approaches through his formal pragmatics. With the term pragmatics, Habermas signals his focus on language in use—on utterances or speech acts—as opposed to a semantic focus on the meaning of isolated sentences or propositions. By formal, Habermas means that he seeks not to describe and classify the communicative practice of everyday life⁹ as it operates within a particular language—that would be the approach Habermas calls empirical pragmatics—but instead to rationally reconstruct the necessary presuppositions of communicative practice.¹⁰ What Habermas pursues in his formal pragmatics is a theory of the unreflectively mastered, pretheoretical communicative capacities of ordinary competent speakers. This theory focuses, in particular, on the way speakers may use speech acts to establish, maintain, or transform social relationships with other persons.

The central idea in Habermas’s formal pragmatics, and the basis for his conception of communicative action, is the notion of a speech act’s validity. Habermas distinguishes among three forms of validity to which speech acts may lay claim: propositional truth,¹¹ normative rightness (Richtigkeit), and sincerity (Wahrhaftigkeit).¹² Typically, Habermas observes, just one of these validity claims is thematic in a particular speech act: In a confession, for example, the claim to sincerity is thematic, as is the claim to truth in a factual assertion.¹³ Habermas’s formulation of the main categories of speech acts reflects this insight: In constative, regulative, and expressive utterances, the claims to truth, rightness, and sincerity are (respectively) thematic.¹⁴

Nonetheless, Habermas contends, any speech act in communicative action raises simultaneously all three claims, even if (ordinarily) the speaker raises only one directly or thematically.¹⁵ Here perhaps Habermas stretches the notion of raising a claim too far. We would not ordinarily say, for example, that a speaker’s request for a glass of water raises a truth claim—that she claims it to be true that a glass of water can be obtained and brought in a reasonable amount of time. More likely we would say that she presupposes these factual circumstances. A weaker but more plausible formulation of Habermas’s position might therefore be that every utterance constitutive for communicative action raises a claim to or presupposes validity in the three respects Habermas identifies. An alternative (and also weaker) formulation is that, at least in principle, any speech act can be criticized along any of the three dimensions of validity.¹⁶ For example, a statement that the argument of a colleague’s book depends on five identified factual errors would be a constative speech act in which propositional truth is the thematic claim. But if one were to make such a statement at a party celebrating the book’s publication, a hearer might respond by saying that such a criticism, even if true, is normatively inappropriate in the context of its utterance. Or the hearer might reply by challenging the speaker’s sincerity—by, for example, suggesting that the criticism arises more from the speaker’s jealousy than from a serious evaluation of the book’s merits. In this second revision of Habermas’s thesis, every speech act constitutive for communicative action involves all three claims in that, in principle, a hearer can challenge the utterance in each of the three different ways.

Either of these two weaker versions of Habermas’s thesis would suffice for his purposes. And the second of the two, emphasizing the role of a hearer’s criticism, connects to an important theme in Habermas’s notion of communicative action. Validity claims, Habermas maintains, are essentially criticizable.¹⁷ By criticizable, Habermas means that in communicative action the hearer may respond to the claims by taking a yes or no position—either accepting the speech act’s claims or opposing them with criticism or requests for justification.¹⁸ And at least to the extent the interaction between speaker and hearer is to remain communicative,¹⁹ the speaker assumes the obligation of providing such justification if necessary.²⁰ Further, particularly in the case of regulative speech acts (such as a promise), mutual acceptance of a validity claim may impose future obligations.²¹ In these senses, acceptance of validity claims, or further discussion between speaker and hearer aimed at consensus concerning those claims, is the "mechanism of understanding [Verständigung]" that coordinates communicative action.

Because the point often has been misunderstood, it is worth underscoring that Habermas does not equate communicative action with the speech acts that coordinate it. In communicative action, as in all rational action, the participants pursue goals and plans of action, based on their interpretations of the situation.²² But communicative action is action proceeding from or directed toward achieving a consensus. In communicative action, Habermas says, actors coordinate their individual plans . . . on the basis of communicatively achieved agreement.²³

The mechanism coordinating strategic action, on Habermas’s scheme, is not consensus—mutual acceptance of validity claims—but influence (Einflußsnahme).²⁴ The term influence requires explication. In one sense of the word, communicative actors may seek to influence each other. In discussing a problematic claim, one may try to persuade the other that his position is correct, and the other may try to convince the one of her criticism. But by influence, Habermas says, he means exert a causal influence,²⁵ independent of the convincing force of reasons that could support claims to validity. So far, however, the characterization of influence, and thus the characterization of strategic action, is only negative—influence operates in some way other than mutual recognition of validity claims.

Habermas tries to characterize the mechanism of influence more precisely by distinguishing between two subtypes, open and concealed strategic action. Of these two subtypes, Habermas has given far more attention to concealed strategic action. The kind of influence characteristic of concealed strategic action is, in effect, deception²⁶—primarily conscious deception.²⁷ The more technical criterion Habermas adopts for concealed strategic action concerns the avowability of the parties’ intentions or aims. In concealed strategic interaction, at least one participant pursues aims that he knows could not be avowed without jeopardizing that participant’s success, while at least one participant assumes that all are acting communicatively. A simple example: One person requests a loan from another person without disclosing that the money will be used for a criminal purpose. Assuming that the person from whom the loan is requested has no reason to endorse the criminal purpose, the aim is nonavowable, in Habermas’s sense, because to declare it is to make tender of the loan unlikely. This kind of action is parasitic on communicative action, Habermas believes, because the success of the coordinating speech act depends on the hearer’s belief that the speaker could redeem the claim to have spoken his intentions sincerely or truthfully.²⁸

Habermas has given less attention to the notion of openly strategic action. From his general characterization of strategic action—that it operates through influence rather than consensus—we can assume that strategic actors do not presuppose or seek a consensus in plans or goals or at least not one resting on mutual acceptance of validity claims. But how can it be characterized positively?

In Theory of Communicative Action, Habermas attempted to specify open strategic action with formal-pragmatic analysis. Focusing on the variant of open strategic action most difficult to distinguish from communicative action—the sort that, like communicative action, is coordinated by speech acts—Habermas assumed that the characteristic kind of coordinating speech act is the simple or pure imperative. By simple or pure imperative, Habermas meant a command that is a sheer assertion of power. To these simple imperatives Habermas contrasted speech acts that are similar in form—involving a command or order—but that, on Habermas’s analysis, belong to communicative action. These sorts of commands or orders Habermas called normatively authorized requests. Habermas’s example of such a request was a flight attendant’s instruction to a passenger to extinguish a cigarette.

These two kinds of speech act differ, Habermas argued, in their acceptability conditions,²⁹ by which Habermas meant the speaker’s basis for expecting compliance and the addressee’s basis for complying. In the case of pure imperatives, the basis for compliance is only the addressee’s fear of negative sanctions (or interest in positive sanctions) over which the speaker has disposal. This motivation Habermas characterized as merely empirical. In the case of normatively authorized requests, by contrast, the speaker expects compliance not just because she can deploy sanctions but because compliance is normatively required. If the addressee accepts the speaker’s claim that compliance is normatively required—required, in Habermas’s example, by a valid safety regulation—then the interaction is coordinated by mutual acceptance of a claim to normative rightness. Because the claim to normative validity is criticizable, Habermas argued, it must be supported or opposed with reasons, not simply with reference to potential sanctions. Accordingly, Habermas argued, the hearer’s acceptance of the speaker’s claim may be motivated rationally, not just empirically.³⁰ Habermas thus characterized the opposition between communicative and open strategic action through a series of further oppositions: between normatively authorized requests and simple imperatives, between validity claims and power claims, between reasons and sanctions, and between rational and empirical motivation.

Habermas since has disavowed this way of distinguishing between communicative and open strategic action. In particular, he has acknowledged the untenability of any sharp distinction between normatively authorized [requests] and simple imperatives.³¹ Instead, Habermas now argues, from a sociological perspective we see a continuum between purely de facto power and power transformed into normative authority.³² While at one end of the continuum is the pure or simple imperative—his standard example is the bank robber’s hands up demand—Habermas now admits that such an imperative is only an extreme case or limit case.³³ Rather than a categorial difference between pure imperatives and normatively authorized requests, Habermas maintains, there is only a difference of degree.³⁴

With this concession, Habermas must abandon the idea that pure imperatives exemplify open strategic action generally. If the bank robber’s command were the paradigm case, then open strategic action would be a socially marginal form of action. And that would be inconsistent with the main line of Habermas’s work. A prominent feature of modern societies, Habermas argues, is the development of spheres of strategic action—preeminently the market.³⁵ The category of open strategic action must be understood more broadly than the pure imperative model would suggest.

Habermas has not much elaborated on how we are to conceive of open strategic action, if not along the lines of the pure imperative. But from Habermas’s preliminary specification of strategic action, together with other remarks scattered throughout his work, we can construct at least a sketch. The paradigmatic case of open strategic action seems to be competition among rational opponents, each pursuing self-interested goals according to rules of rational choice. Each tries to influence or steer each other’s choices, and each is aware that the other is operating in this way. The choices of each are conditioned by their respective predictions of the other’s choices as well as by the consequences of their interaction. Game theory, rational choice theory, and decision theory, Habermas sometimes suggests, formalize this paradigmatic case of open strategic action.³⁶

But even this paradigmatic case differs in important ways from the norm-free, purely power-driven form of action that the pure imperative model described. Strategic competition, Habermas acknowledges, typically takes place against a normative backdrop.³⁷ Strategic action in the marketplace, for example, presupposes general acceptance of a variety of legal norms—such as criminal-law norms that forbid some tactics or strategies and permit others, norms of property law that outfit some with more market power than their opponents, rules that define the possibilities for different kinds of transaction, and the like. These legal norms structure the participants’ choices among strategies and tactics. Further, apart from state-enforced law, informal social norms may shape strategic interactions in particular spheres of economic activity. Even paradigmatic cases of strategic action, then, may involve the mutual recognition of legal and social norms.

Habermas’s recognition that the pure imperative is only the limit case of open strategic action, not the paradigmatic case, has further consequences. In rejecting the pure imperative model, Habermas recognized a continuum along which power relations are more or less underwritten by social norms. This recognition suggests a corresponding continuum within the concept of strategic action, according to which instances of strategic action may be more or less structured and coordinated by binding social norms that the participants mutually recognize. If this is so, then strategic interaction may shade more or less toward communicative action. Open strategic action, in short, cannot be as norm free, or as sharply distinguished from communicative action, as the pure imperative model suggested.³⁸

Similar observations apply on the other side of the communicative/strategic distinction. In many actual instances of communicative action, the sanctions Habermas considers characteristic of strategic action may be ready to hand. Habermas’s own example of the flight attendant’s no smoking request to the passenger illustrates this point. While this request raises a claim to normative validity, the passenger likely will not get far by treating that claim as if it were readily criticizable. The sanctions available to the flight attendant—even if never invoked or even referred to—likely will limit the extent to which the normative claim, criticizable in principle, actually may be criticized. This is not to deny the difference between the flight attendant’s normatively authorized request and the bank robber’s demand. But it is to suggest that, just as actual instances of strategic action are not norm free, so too are many actual instances of communicative action far from power or sanction free.