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Thoughts about law, beside Habermas text: Morality, Law, Politics1 2 By Manuel Cappello, en.manuelcappello.com
1 I worked on the following Italian edition: Jrgen Habermas, Morale, Diritto, Politica, Piccola Biblioteca Einaudi, vol. 359 - Filosofia, Torino 1992. This volume includes the original German titles Recht und Moral (Tanner Lectures 1986); Volkssouvernitt als Verfahren (1988); and Staatsbrgerschaft und nationale Identitt (1990), in Jrgen Habermas, Faktizitt und Geltung. Beitrge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Suhrkamp, Verlag Frankfurt am Main 1992). The quotes in the following notes (if nothing else is indicated) are from the Italian edition. All translations from Italian to English made by the author (both quotes and the entire article, which was composed in Italian). 2 After a deep reading of Habermas text, I chose some of the main ideas present in it. This article has been constructed as a narration preparating the enunciation of the chosen concepts. This means the arguments coming from the book are not delved into; rather they are simplified to provide a basic introduction to the citizen. 3 Voltaire, Oeuvres de Voltaire, Dictionnaire philosophique par Voltaire (Paris: Imprimerie de Cosse et GaultierLaguionie, 1838). Entry for coutumes: Il y a, dit-on, cent quarante-quatre coutumes en France qui ont force de loi; ces lois sont presque toutes diffrentes. Un homme qui voyage dans ce pays change de loi presque autant de fois quil change de chevaux de poste. [...] aujourdhui la jurisprudence sest tellement perfectionne, quil ny a gure de coutume qui nait plusieurs commentateurs; et tous, comme on croit bien, dun avis diffrent. 4 Of course, the codes historical formation process is complex and extends through time; in addition, its formation is not a direct and exclusive effect of French Revolution. 5 Citizens collective will, being capable of expressing itself in the form of universal and abstract laws only, operates excluding all interests not susceptible to be generalized, admitting only those rules that guarantee equal liberties to all men. Habermas, Morale, Diritto, Politica p. 84 6 If we say, in example, that a vassal can sell wine 30 days before others, or that only vassal can hunt game, or that only vassal has the right to receive a tribute from all the lands of the fee, then we are creating distinctions favouring certain social classes.
change occurred, the negative effects of the new laws accumulate and become evident as grey zones9 that need to be managed by further laws, which are more specific and detailed because they must suit the multiplicity of the existing system, without the possibility of deleting it by a new, improbable revolution. This development is equivalent to a shift from formal rationality as described above. We can talk about this process as law deformalization. Deformalization comes both from an historical continuity not repudiated by a discontinuity moment and from an increase of complexity in the social context in which law is applied.10
9 In the degree to which constitutional monarchies and the Napoleonic code affirmed themselves, social inequalities of a new kind came to light. In place of inequalities linked to political privileges, other inequalities succeeded them, starting from the institutionalization of equal liberties, in the field of private law. They were the social consequences of the unequal distribution of an economic power that was wielded outside the political dimension. Habermas, Morale, Diritto, Politica p. 88 10 This does not mean that at the zero point laws were better because they did not need the integrations that subsequently have been necessary. At the zero point, new laws have not yet had time to diffuse their consequences, which in a complex world cant avoid having negative as well as positive aspects too. 11 Kant, too, has been responsible for a confusion that soon will no more allow to separate between them two completely different meanings of universality: the semantic universality of an abstractly general law will early take up the place of procedural universality, characterizing the democratically established law as an expression of a popular collective will. Habermas, Morale, Diritto, Politica p. 72
Rousseau.12 This deepening has not been made by socialists,13 while it has occurred in liberal theories.14 The abstract and universal nature of law does not allow it to formulate measures directly assigning privileges to particular citizens with a name and a surname, but also does not prevent laws from casting advantages and disadvantages onto societys foliage creating dark and light zones. To avoid a manipulation of the grey regions generated by laws, there is the need to regulate the process by which decisions representing the will of all are taken at the top, rather than simply the manner in which these decisions must be written. In this way, in respect to the formal rationality as intended by Weber we find ourselves with a concept of procedural rationality broader and sounder, that can keep its validity in the complexity of the contemporary situation, in which its hard to maintain intact the abstract and universal nature of law. While formal rationality according to Weber had an instantaneous nature (in the sense that it was about properties present in the law in every single instant), examining procedural aspects of the law clearly brings us to consider events extended in time, and there is a passage from the synchronic dimension to the diachronic one. Using a musical metaphor, we could say that while Weber pored over the harmony among superimposed sounds, Habermas focuses our attention on melody and chord succession.
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15 In the sense that there is the aim of defining a criterion under which political power cant do all that it wants about laws, just because it must act within well-defined procedures allowing to gather the fruits of public speeches. Cf: Communicative power is wielded in the modality of a siege. [] It regulates and fixes quotas to the reasons pool that the administrative power can sure instrumentally manage, but never - structured as it is in a juridical form afford the luxury of ignoring. Habermas, Morale, Diritto, Politica p. 98