Review

Reviewed Work(s): Between Facts and Norms: Contributions to a Discourse Theory of

Law and Democracy by Jürgen Habermas: The Cambridge Companion to Habermas by
Stephen K. White
Review by: Nigel Dodd
Source: The British Journal of Sociology , Jun., 1997, Vol. 48, No. 2 (Jun., 1997), pp.
329-330
Published by: Wiley on behalf of The London School of Economics and Political Science

Stable URL: https://www.jstor.org/stable/591763

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Book Revaews
an irritated dismissal of cultural studies of
the postmodern ilk, generates analysis
strong on the production elements of
systems but much less illuminating about
the experience of consumption. Con-
sumption, as measured, is equated with
purchase rather than use, such that
interprietation is focused entirely upon
what is, or is not, acquired. Moreoser, it is
always particular individual food items,
rather than dishes, meals or occasions that
constitute the final point in the description
of any SOP, thereby largely eliminating the
social elements of food selection. These
are two major limitations to any approach
that seeks to offer an interdisciplinary
understanding of the consumption of food
(and, by extension, of any other type of
consumption). Of course one can often
usefully infer meaning from evidence of
purchase, but any remotely comprehen-
sive approach requires conceptual tools
for the analysis of the experience of con-
sumption in different social contexts,
which this one does not as yet.
In sum, this book contains some power-
ful criticisms of food studies and some
rigorous analysis of data which generates
detailed information about aspects of
British systems of food manufacture, but is
limited, perhaps because theoretically
handicapped, in its attempts to explain
why people eat what they do. Though valu-
able for specialists in food studies, I cannot
imagine it being of general sociological
interest.
Alan Warde
Lancaster Universit
Habermas, Jurgen Between Facts and
Norms: Contributions to a Discourse
Theory of Law and Democracy Cam-
bridge: Polity Press 1996 631 pp. £45.00
(hardback)
Whgite, Stephen K (ed.) The Cambridge
Companion to Habermas Cambridge:
Cambridge University Press 1995 354 pp.
£40.00 (hardback) £12.95 (paperback)
The two volumes of Habermas's Theory of
Communicative Action (Polity Press, 1981)
and subsequent works have left an
important question unanswered, namely,
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329
what is the legitimacy of the law? His
account of the legal status of money, for
example, was significant for understand-
ing the process of the internal colonization
of the lifeworld, but unclear as to exactly
how money, which is issued and backed by
the state, gains what Habermas called its
'lifeworld support'. Here in this work, now
translated four years after its original publi-
cation in German, Habermas presents an
extensive and detailed analysis of the legal
system and the constitutional state. This is
a significant development of his theory.
The argument starts out from the propo-
sition that in law there is a tension between
facticity and validity, or between facts and
norms. Briefly, do we obey the law because
of the threat of sanction backed by the
state or because we see the law as reason-
able and legitimate? If we see ourselves
merely as subjects of the law we are likely to
use the law instrumentally. Habermas
wants to argue that we are participants in
and notjust subjects of the law. In order to
do so he must resolve the tension between
facts and norms.
The tension between facts and norms
has an internal and external relation to the
law: internal in the sense that the law serves
both as sanction and as expression of
moral principles, external because power
can distort the process of legitimate law-
making. The nub of Habermas's theory
concerns the relationship between law and
democracy, a relationship he defines not
only as historical but as conceptual. His
argument proceeds in three stages. First,
he must demonstrate that positive law is
not a special case of morality but has a
more complex, socially grounded struc-
ture. In brief, he contends that law is more
complex than morality because a) law
places limitations upon and unleashes our
autonomy of action (whereas morality only
restricts it), and b) law involves collective
goals and is therefore too concrete to be
justified by recourse to moral consider-
ations alone.
The contention that law is more
complex than morality takes Habermas to
the second stage of the argument, which
requires him to show that popular sover-
eignty and human rights presuppose one
another, in other words, that neither can
be given primacy over the other. In order
330
to do this, he argues that a) the law requires
rights in the form of what he calls guaran-
tees of 'actionable individual liberties', and
b) by the same token, an equal distribution
of human rights demands democratic
backing to ensure that outcomes are
reasonable. This is a controversial thesis
because it can be taken to imply that even
the most basic human rights do not tran-
scend the jurisdiction of sovereign states.
Habermas examines this issue in the Post-
script (1994), which also serves as a useful
summary of his overall argument.
The third stage in the theory brings us
full circle, and involves arguing that the
principle of democracy has roots which are
independent of morality. The basic propo-
sition here is that legal codes are com-
pleted through participatory rights which
guarantee equal access to the public
sphere. For Habermas, the essential differ-
ences between morality and democracy are
twofold: a) legal norms are supported by a
wide range of reasons which include but
cannot be reduced to moral principles;
and b) whereas morality informs our judg-
ment, legal principles do both this and
serve as the basis for our institutionalized
behaviour as citizens.
One consequence of Habermas's theory
is to suggest that the task of the philoso-
pher is not to convince us that there are
moral (as well as functional) reasons why
we should organize ourselves as legal com-
munities. Rather, philosophers 'should be
satisfied with the insight that in complex
societies, law is the only medium in which
it is possible reliably to establish morally
obligated relationships of mutual respect
even among strangers' (p. 460). To this
extent, it is possible to see the law as a form
of legitimate coercion: but with the crucial
proviso that, as mentioned before, we see
ourselves not merely as subjects of but as
equal participants within the law.
It is open to question whether this
proviso presumes too much. Certainly,
some of the contributors to the Cambr?vdge
Companion to Habermas seem to think so.
Here, the issue of universalism versus par-
ticularism (or difference) in Habermas's
theory is tackled by six of the twelve con-
tributors (and by Honneth most convinc-
ingly). It must be said that the collection
could be more accurately described as a
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Book Reviews
companion to Between Facts and Norms (and
Baynes' chapter usefully so) than to Haber-
mas's work as a whole. The volume is there-
fore not to be recommended as a general
text for students. White's Introduction is
too succinct to serve as a general introduc-
tion to Habermas's work, although the
chapters by Love, Warnke and Chambers
provide useful background material for
the uninitiated.
By far the most common objection to
Habermas's writing concerns its level of
abstraction. This is taken to account for
both its difficulty and (sometimes misguid-
edly) its idealism, or more pejoratively, its
distance from the real world. As to the first
possible objection, Rehg's translation of
Between Facts and Norms is clear and precise
and his Introduction helpful. As for the
second, I would recommend the chapter
by Pensky in the CamAidge Companion to
Habermas, from which Habermas emerges
- as he does from the interviews collected
in The Past as Future (Polity Press, 1994) -
as more clued-up than many of his
accusers, as well as being several steps
ahead in the argument. Resisting the temt
tation to throw around superlatives about
Habermas's breadth of scholarship (see
blurb and other reviews, passim), his argu-
ment is pertinent and serious in addressing
concerns about the status and role of law in
increasingly pluralistic, some would say
fragmented, societies.
Nigel Dodd
London School of Economics and Political
Science
Hakim, Cathenne Key Issues in Women's
Work: Female Heterogeneity and the
Polarisation of Women's Employment
London and Atlantic Highlands, NJ:
Athlone Press 1996 257 pp. £35.00 (hard-
back) £14.95 (paperback)
News of the controversy surrounding this
book will already have reached the readers
of thisjournal. Dr Hakim takes a 'politically
incoITect' view of the women who are 'only'
part-time, allegedly half-hearted, members
of the British labour force. Feminist
concerns to improve opportunities for
those who freely chose the status quo are
mistaken.