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The Philosophy of Habermas: Rationality and its relation to Law with Application to the Philippine Context

Photo of Jurgen Habermas from harmonist.us

Photo of Jurgen Habermas from harmonist.us

Original paper submitted to the PUP College of Law in partial fulfillment of Philosophy of Laws requirement, with credits to Mr. Jonathan Siddayao and Mr. Ric Baldicano.

I. Introduction

Man’s natural ability to reason cannot be discounted in attempting to answer the philosophical question of “what is law?” This is because man’s inherent nature of rationality is one of the more rational arguments that a scholar can come up with in attempting to justify the law’s existence. The law, possibly in the layman’s eyes, is a product of the human mind. Naturally, such a codified prescription on human behavior cannot be produced without man’s rationality. But beyond that, we may ask, what are the particular relations governing man’s rationality and the existence of laws? This is what Jurgen Habermas sought to address, as he explained the relation of rationality to law.

Jurgen Habermas is a German sociologist and philosopher whose work focuses mainly on the foundations of social theory and epistemology, democracy and the rule of law.[1] He was born in Dusseldorf, Germany in 1929, and was a witness to Germany’s loss in the war with the Allies in 1945.[2] He studied at the University of Gottingen and the University of Bonn. Moreover, he earned a doctorate degree in philosophy from the University of Bonn in 1954.[3]

Some of Habermas’ notable works, among others, are The Theory of Communicative Action, and the Knowledge and Human Interests, where he “began to develop a distinctive method for elaborating the relationship between a theoretical social science of modern societies, on the one hand, and the normative and philosophical basis for critique on the other.[4]” These specific works have been discussed in the book of Fr. Ranhilio Aquino entitled A Philosophy of Law: An Introduction to Legal Philosophy (2006), in furthering the arguments on the relation of rationality and law.

The development of the theory of rationality is Habermas’ primary contribution to philosophy. This is precisely what the following discussions will focus on, in an attempt to elucidate on Habermas’ postulates on rationality and law. Further, this paper endeavors to apply this theory of Habermas in the context of the Philippine legal system.

II. Preliminary Considerations and Normative Rightness in Validity-claim

Habermas’ theory of rationality is based on his confidence “in the ability of people to make claims, to challenge and to justify them,[5]” which goes on even in the areas of beauty and rightness – areas where men had reservations of venturing into. Habermas explains that man’s treatment of “universal pragmatics,” or that “branch of semiotics that deals with the relation between signs or linguistic expressions and their users,[6]” keeps man from dealing with speech as strictly a set of propositions whose function is limited to information. Put simply, there exists a speech-act dimension, which means that man is not restricted to the language of the text or speech alone, but whose text or speech is also broadened by the notion of action “beyond the purely strategic and exploiting the richness and potency of communication.[7]” Thus, speech does not only pertain to utterances made, but is also related to action and communication – more specifically, that it has an illocutionary component. It is the illocutionary component that establishes the validity of claims.

There are three considerations that Fr. Aquino offered in determining the validity-claim of an utterance, using the illocutionary component. Basically, these considerations involve the following: truth, sincerity or trustworthiness and normative correctness. These considerations are identified to be illocutionary components as they relate to the communicable effect of any utterance. For instance, in the statement “I am a fan of Miley Cyrus,” the text itself is the locutionary component. This could be restated to fully express the entire speech-act of “I am telling you that I am a fan of Miley Cyrus.” In application of the three considerations involving the illocutionary components, the following can be inferred: first, that there is truth in the given statement, and in the chance that someone questions this assertion, the speaker is ready to give his reasons, with certainty that there exists a community of speakers and listeners that will accept the same; second, one can validly question the sincerity or trustworthiness of the utterer, in searching for assurance that he indeed is a fan of Miley Cyrus and not merely saying a groundless statement that betrays his sincerity; third, normative correctness is questioned, such that it matters whether or not the rules that the speakers and listeners go by properly confer the information. In the third consideration, the utterer maintains the legitimacy of the relation established between him and the community of speakers and listeners.

In relation to Habermas’ theory, it is the last consideration that is underscored. For Habermas, there is a natural relation between every utterance and the existing norms common to the speaker and hearer, and it is this natural relation which determines the validity of claims. Every part of speech, each statement given by a speaker, each utterance precludes a reliance on the existing norms accepted by both the listener and the speaker. It is established that before one makes a statement, he is confident that the prevailing norm will enable his listeners to render his claim valid. And since speech presumes a communicable effect, it is thus translated into action. Given this analogy, Fr. Aquino enumerates the following as the main factors determining the rationality of a normatively regulated action: the norm that the actor is following; and the justification the actor can give for his action by explaining what he does (or what he did) in light of legitimate expectations. But this begs the question and the challenge to Habermas’ theory – what will happen to the claim if the norm that the actor is following is different from the norm of another?

In answering the question posed, Habermas relies in the rationality of man to settle differences in norms, criteria and standards. In the justification of his actions, man cites the norm or norms he follows, influenced by his history and culture. Today, a venue is established precisely to answer the existing differences in norms. An obvious example of this is the establishment of a judicial system to answer to man’s historical and cultural diversity. In the Philippines, where a variety of cultures exist and the challenge in differences is deepened by ethnocentricity, the judicial system serves as a court for its citizens to settle controversies at point of disagreement on the acceptability of given actions. Further, in the recognition and accommodation of the deep cultural roots of its citizens, Philippine courts also resort to customs in deciding cases, provided that the requisites in the recognition of customs are fulfilled.

On a larger scale, there are also international venues for the settlement of disputes of nations, where cultures more obviously vary. Meanwhile, outside the courts, people resort to other means of resolution, and this includes the incitement of violence in the assertion of claims. A very current demonstration of this is the Zamboanga stand-off. Because of the ongoing peace talks between the government and the Moro Islamic Liberation Front (MILF), the MILF’s rival group, Moro National Liberation Front (MNLF) initiated acts of violence in Zamboanga to express their opposition. Moreover, even if the MNLF leader, Nur Misuari, has previously signed a peace agreement with the Ramos government in 1996, he alleges that the government has not been faithful in fulfilling the commitments made in the agreement thus the violent acts resorted to by the MNLF. Crudely put, the norm of engaging in peace talks entered into by the Aquino government and the MILF was met with disagreement by the MNLF, the latter believing in a different norm in showing their unacceptability of the preceding acts of the government. Further, difference in the norm of issue resolution is shown in the violent acts thrown by the MNLF, being a militant group, such that the government conformed to the same venue, albeit with a different objective – to ensure the security and safety of the general public. Like what Habermas has stated on the display of arguments through violence and terrorism, we can only hope for its resolution.

III. The World of Norms and their Validity

Habermas claims that speech-acts deal with more than just objects-in-the-world, and he substantiates this argument with the use of Popper’s “three-worlds” proposal. The three worlds proposal include the world of physical objects or states, the world of states of consciousness or mental states, and the world of objective contents of thought. However, for Habermas, the third world, which is the world of objective contents of thought, can be expanded to become the world of social relations and institutions. This expansion by Habermas is parallel to the process of nomization: externalization, objectification, and internalization, in that both assert the concretization of the mind’s contents to establish institutions which build social relations. For instance, the structure of the government exists because of the objective contents of thought which have accordingly been internalized by man. In Habermas’ example, he cites the creation of scientific thought and works of art. Works of art start merely as objective contents of man’s thoughts, which are eventually translated into the first world, or the world of physical objects, and by way of consumption by the art’s audience, further translated into another’s states of consciousness by way of its physical manifestation.

From the abovementioned arguments, it is therefore logical to conclude that legal propositions are not just statements of fact. For instance, Article VIII of the Civil Code provides that “judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.” This given law does not merely make a statement on judicial decisions. Once it is included in the world of objective contents of thought, it becomes part of a recognized fact of institution. However, the realization of this law is still dependent on whether the people will accept it as part of the world of norms. Had this provision not been previously accepted by the legislature during the drafting of the Civil Code, it would have remained in the third world as objective contents of thought in the form of mere prescriptions by virtue of non-acceptance to the world of norms.

In the acceptance of the three worlds model, attempts to reduce action to teleology and strategy then becomes unacceptable. This is because the three worlds model presupposes the existence of a norm, and therefore puts prime in anticipating the decisions on the receiver of the actions. Actions will therefore be deemed more rational if they are normatively regulated such that “members of a social group orient their actions to common values and comply with common norms[9]”; rather than submit to teological rationality, which chooses from alternative courses of action to bring about an intended result. In short, the validity of an action is governed more by its conformity with the norm, rather than its effects. The renowned statement of “the end does not justify the means” will therefore be true under this hypothesis.

Normatively regulated actions ontologically presupposes two worlds, the objective world of existing states of affairs and the social world to which the actor belongs as a role-playing, rule obeying subject. In the act of stealing cake for instance, the cake is a physical object, stealing the cake is the state of affairs, but the social world will dictate whether or not stealing cake is allowed or prohibited. Thus, rationality does not only pertain to the analysis of the act relative to the norm, but also the analysis of the act in relation to the prevailing values. The relation of rationality to values is what encourages the changes in the law or evolution in ethics.

Moreover, the correctness of normatively regulated actions has two types: subjectively right and objectively right. It is subjectively right if there is good faith on the part of the actor that what he did is what he believes is right. It is objectively right if the act done is justified through acceptance by others.

The acceptance by others of an act is what fuels the discourse and universalization of actions, and therefore leads to the legitimacy of norms. Fr. Aquino defines the discourse principle as “those action norms that are valid to which all possibly affected persons could agree as participants in rational discourse.[10]” This is best demonstrated in the legislative process of the Philippine government. Before a bill becomes a law, it passes the prescribed three readings, which involves the reading of the proposed bill, referral to the proper committee, committee deliberations and public consultations, submission of the committee report containing the respective proposals, floor deliberations by the representatives of the house, voting for the bill’s amendment, adoption or abandonment. The discourse happens twice in the whole legislative process: during the committee deliberations and public consultations, where the affected persons could agree as participants regarding specific actions on a proposed bill; and during the floor deliberations wherein the house representatives may vote on the proposed bill. If the proposed bill is accepted, the specific norm embodied in the bill is legitimated, legalized, and consequently, universalized, at least within the Philippine jurisdiction. If the bill is abandoned, it may be for the reason that the norms embodied in the proposed bill are not accepted by all. Therefore, if a bill that is contemplated “runs counter to the moral persuasions and convictions of the persons who are to be affected by its provisions,” it will not be enacted into law. Accordingly, the norms proposed are not legitimated.

Habermas notes that legitimate lawmaking is one which involves a process of legislation “that involves the assent of all citizens in a discursive process.[11]” This, then, is the source of the legitimacy of law. It is therefore important that people believe in their legislation process, for this is an indispensable requisite in the legitimacy of laws. Belief in legitimacy results to belief in the legality of the results of legislation.

Belief in legitimacy is tested now, more than ever, in the realm of the Philippine Legislature, with the existing issue of the alleged Priority Development Assistance Fund (PDAF) scam as well as the Disbursement Acceleration Program (DAP). Doubts in the legality of the actions of the legislature were raised, given the rise of the controversies involving politicians. The issue was bolstered by the fact that the behavior engaged into by the accused legislators was not the socially accepted norm for public officials, thereby resulting in public outcries and discontent with the current state of affairs. In attempts to attend to the issue at hand, the Supreme Court issued a Temporary Restraining Order (TRO) barring the disbursement of PDAF. Some are questioning the TRO’s legality, in accordance with the principle of separation of powers. However, given the public outrage that resulted from the publicity of the PDAF scam and more recently the constitutionality of DAP, this move by the Supreme Court found the justifiability of its action – that the demand of the taxpayers for justice is sufficient motive to support the issuance of the TRO. In this case, the Supreme Court’s action became valid, although contested, because of the rationally motivated recognition of the socially accepted norm of the Supreme Court’s mandate, and the socially expected norm for governments to be responsive in heeding the call of its people for equity and justice.

III. The Rule and Role of Law

According to Fr. Aquino, law is at the very heart of social integration, meeting the functional requirements of a complex society. It establishes certain behavioral expectations, and does not merely rely on the goodwill of the people. From this, it can be inferred that in order to raise the general welfare of the public by means of instituting a government, certain individual liberties must give way for the promotion of the common good. Thus, in the establishment of laws, norms are formed as to what specific actions are guaranteed not to conflict with the set of rules that the citizens have formed in the objective of living together, in forming a nation.

This is basically the root of contentions from activists who are lobbying for specific rights that are not granted because the government has its own set of presumptions of which rights should and should not be conferred in consideration of the common good.  Moreover, consensus between the two parties is met with difficulty because of differences in their perception of what constitutes the common good.

For instance, the constitutional power of the President to suspend the writ of habeas corpus in times of rebellion and invasion is abhorred by militants, with the presumption that this hampers the inherent constitutional right of the individual to liberty and due process. Of course, certain measures are included in the Constitution to ensure that this power of the President is not exercised negligently or whimsically. However, even if such measures are already provided for, in the actual exercise of this power, there is always the friction stemming from the differences in norms of the stakeholders. And it is in the existence of these differences that the discursive process can be put to good use. The challenge for any government is therefore to strengthen their discursive process in order to address these kinds of conflicts with its people.

In the balance of individual rights and political autonomy, Habermas stresses that it is not necessary to choose one over the other. “Private autonomy and political autonomy are co-original.. and it rests on the philosophical premise that co-originality is preserved and safeguarded when the addressees of the law are simultaneously the authors of their rights.[12]” This is the reason why the Constitution is consistently upheld as the fundamental law of the land. It is a document written through the will of the sovereign people, and is presumed to embody all of the socially expected and accepted rights of the citizens. The human rights enumerated therein are written by the people, for the people. It is thus understood “that human rights are the condition of the formation of the law, precisely because it is human rights that guarantee that all participate in the will and rule-formation as consociates. Human rights are therefore the formal conditions for the legal institutionalization of the discursive process of opinion and will-formation in which sovereignty assumes a binding character.[13]”

However, the domain of the law is limited only to the external relation of interactive influences that people exert on one another. Motives of the people for doing certain kinds of actions are not a concern of the law. This means that even if a law exists, it cannot compel one to act “rightly”. The province of the law includes only the norms that will bind behavior, and not the ends for the actions. Thus, a certain end is still shaped by one’s personal disposition i.e. by personal convictions of the good life, human fulfillment etc.

 

IV. Habermas and Weber: A Comparison of Theories of Law

In contrast to the theory of Habermas that the effecting of intended ends is not a concern of law, Weber posits that the purpose of law is to attain a certain end or purpose. Weber contemplates modern law as the “institutionalization of purposive action in economics and administration, detached from oral foundations and presently oblivious of what moral underpinnings of historical antecedents there might be.[14]” Modern law, for Weber, has been secularized, and did away with the metaphysical-religious matrix that used to lend meaning and value to the institutions of human life. This is based on the historical fact that laws used to be ingrained in the religious institutions that have been founded by man in the past. Religion gave meaning to the life of man, and also established the standards of behavior governing previous human settlements. Weber calls this the loss of meaning, which leads to his second theory which is the loss of freedom. Because of the loss of a unified world-view of religion, man lost his freedom because of the advent of polytheism which led to a competition between the different claims and orders of values of the now existing religions. Weber asserts in this case the existence of undecidability and insoluble conflict between values.

`           For Habermas, however, he debunks Weber’s statement consistent with his theory of rationality: that the reason of man sees no polytheism. Validity of claims can still be sought through their justification by good arguments. Again, as earlier discussed, validity of claims can be gained by using the three value-spheres: truth, sincerity and normativity.

Habermas’ main criticism of Weber’s, as well as of other positivists’ theories is on the function of law. Positivists admit that laws indeed arise from moral convictions and ethical persuasions. However, they posit that a question on validity of laws is simply settled by “inquiring on whether the questioned proposition of law or enactment conforms with the primary rules that determine whose rights and duties are created.[15]” Habermas, on the other hand, asserts that although his beliefs are in consonance with the positivists on this matter, merely settling at this level is not enough. Modern law, for him, must be situated within the rationality-context of normativity: “that moral consciousness that has as its characteristic concern normative rightness.[16]” Thus, the question of whether the law is binding or not rests on the “argumentation that draws on intersubjectively recognized norms that ground, found and support law; grounds which may themselves be questioned and in turn supported and defended,[17]” and not on its conformity with moral principles.

V. Application in the Philippine Context

The theory of Habermas on rationality and law has been applied by Fr. Aquino to the case of Estrada vs. Desierto and Estrada vs. Macapagal-Arroyo in demonstrating an issue in legitimacy and legitimation. Mr. Justice Reynato Puno, the ponencia of the aforementioned cases, delivered an opinion consistent with that of Habermas’ theory when he wrote that “rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the “power of number,” for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law.[18]” The rule of law is not therefore simply adjudged by the number of people adhering to it, but should be particularly dictated by reasonable people who are not overcome by their rage in establishing a specific norm. The rule of law is a concept higher than the “power of number,” such that the former requires the rationality of the human mind. It is therefore not enough that thousands of people gathered during EDSA II to call for the ouster of the then Pres. Joseph Estrada. It is in the resolution and the submission of this issue to the proper discourse in order to form a norm and rule of law that is accepted by all.

Further, this particular event challenged the legitimacy of the intervention of the Supreme Court in holding that EDSA II is subject to judicial review, in comparison to EDSA I which was held not to be in the province of the judiciary. Clearly, the Supreme Court in this case differentiated EDSA I from EDSA II, such that the former involved a political question, while the latter, a justiciable question. This has its basis on the extra-constitutional, and therefore political, character of the EDSA People Power I, while in EDSA People Power II, the people merely exercised their constitutional right to freedom of speech of assembly. It is also interesting to note that EDSA I is consistent with the theory of Habermas on discourse. In EDSA I, the people, finding no recourse in the existing form of government at that time, found their venue of resolution to the streets, were they asserted their rights and what they believed should be the norm. In the end, the socially accepted norm of the people prevailed, and this was manifested in the enactment of the constitution that we adhere to today: the 1987 Constitution.

Muy, called Myra Jean by her irritated mother whenever she does something annoying, is a twenty-three year old kid from the province of Quezon. She is a graduate of BA Public Administration from the National College of Public Administration and Governance in the University of the Philippines-Diliman, and has recently finished her graduate diploma course in Urban and Regional Planning from the School of Urban and Regional Planning in the same university. In a span of one and a half years, she’s already had a number of work experiences due to her impulsive nature. She now works as a Project Development Officer for one of the programs of the Department of Social Welfare and Development (DSWD). Her hobbies include cramming, sleeping, travelling, drinking, enrolling in courses she will probably not use and learning something new everyday.

——–

[1] “Jurgen Habermas’ Profile.” The Guardian website, no date. <http://www.theguardian.com/profile/j-rgen-habermas, accessed September 21, 2013>.

[2] “Jurgen Habermas – Biography.” The European Graduate School website, no date. <http://www.egs.edu/library/juergen-habermas/biography/, accessed September 21, 2013>.

[3] Crossman, Ashley. “Jurgen Habermas.” About.com website, no date. <http://sociology.about.com/od/Profiles/p/Jurgen-Habermas.htm, accessed September 21, 2013>.

[4] “Jurgen Habermas.” Stanford Encyclopedia of Philosophy, September 6, 2011. <http://plato.stanford.edu/entries/habermas/, accessed September 21, 2013>.

[5] Aquino, Ranhilio Callangan. “A Philosophy of Law: An Introduction to Legal Philosophy.” Central Book Supply, Quezon City, 2006, p. 54.

[6] “Pragmatics.” Merriam-Webster Dictionary. Encyclopedia Britannica Company, 2013.

[7] Aquino, Ranhilio Callangan. “A Philosophy of Law: An Introduction to Legal Philosophy.” Central Book Supply, Quezon City, 2006, p. 55.

[8] Ibid., p. 58.

[9] Ibid., p. 60.

[10] Ibid., p. 63.

[11] Ibid., p. 64

[12] Ibid., p. 68.

[13] Ibid.

[14] Ibid., p. 69.

[15] Ibid., p. 74

[16] Ibid.

[17] Ibid.

[18] Ibid., p. 75.

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