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Habermas and Deleuze on Law and Adjudication

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ABSTRACT

This article stages an encounter between Habermas and Deleuze on law, rights, and adjudication. Most of the article is spent developing Habermas’s concept of adjudication as the application of communicatively generated norms. This application, I argue, involves a complex temporality that is at once retrospective and non-creative. Deleuze is used to critique this concept of adjudication in favor of one based on concrete situations and the creation of new problems. In so doing, I will develop Deleuze’s notorious, and notoriously hostile, remarks on human rights and philosophies of communication by relating them to discourse ethics and to the positive conception of law and judgment that can be drawn from his work.

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Notes

  1. J. Habermas, “America and the World: A Conversation with Jürgen Habermas”, Logos 3/3 (2004), 1–22, 18.

  2. Ibid., at 19–20.

  3. Ibid., at 20, emphasis added.

  4. G. Deleuze, L'abécédaire de Gilles Deleuze, avec Claire Parnet. (Paris: DVD Editions Montparnasse, 2004), ‘G’.

  5. G. Deleuze and F. Guattari, What Is Philosophy? trans. H. Tomlinson and G. Burchell (New York: Columbia University Press, 1994), 100.

  6. Deleuze, supra n. 4, at G. See also his comments in Negotiations where he calls human rights an “eternal value”, a notion “everybody recognizes as very abstract”. G. Deleuze, Negotiations, 1972–1990 trans. M. Joughin (New York: Columbia University Press, 1995), 122.

  7. Ibid., at 153. Variations of this contrast between jurisprudence (as positive, creative, effective) and law (abstract, negative, limiting) can, with astonishing consistency, be traced from Deleuze’s very earliest published writings to his very last interviews. In Empiricism and Subjectivity (1953) and his short text on the nature of institutions (1954) the opposition is established between institutions and law but this pairing is structured much in the same way as the jurisprudence/law split. See G. Deleuze, Empiricism and Subjectivity: An Essay on Hume's Theory of Human Nature trans. C. Boundas (New York: Columbia University Press, 1991), 37–54; and G. Deleuze, “Instincts and Institutions”, in D. Lapoujade, ed., Desert Islands and Other Texts: 1953–1974, (Los Angeles: Semiotext(e), 2004), 19–21.

  8. Deleuze, supra n. 4, at G.

  9. R. Bernstein, “The Retrieval of the Democratic Ethos”, Cardozo Law Review 17 (1996), 1127–46, 1140.

  10. A. Badiou, Ethics: An Essay on the Understanding of Evil trans. P. Hallward (London: Verso, 2001), 8; C. Douzinas, “Human Rights and Postmodern Utopia”, Law and Critique 11/2 (2000), 219–240, 219–221.

  11. Deleuze and Guattari, supra n. 5, at 28, translation modified.

  12. See A. Wellmer, Endgames: The Irreconcilable Nature of Modernity, Essays and Lectures trans. D. Midgley (Cambridge: MIT, 1998) 85. For Habermas, see “An Alternative Way out of the Philosophy of the Subject: Communicative Versus Subject-Centered Reason”, in The Philosophical Discourse of Modernity: Twelve Lectures (Cambridge: MIT, 1987), 294–326.

  13. I. Kant, The Metaphysics of Morals trans. M. Gregor (Cambridge: Cambridge University Press, 1996), Ak. 231–233.

  14. J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy trans. W. Rehg (Cambridge: MIT Press, 1998), 107. Legal norms are, for Habermas, the fundamental type of action norm for modern artificial (i.e., de-traditional) societies that can no longer count on the integrative powers of a shared and unreflective substantial ethical life.

  15. Ibid., at 88.

  16. Ibid., at 121.

  17. Ibid., at 121–122.

  18. Ibid., at 108, emphasis added.

  19. J. Habermas, “Remarks on Legitimation through Human Rights”, in M. Pensky, ed., The Postnational Constellation (Cambridge: MIT, 2001, 113–130), 117. Also, Habermas, supra n.14, at 127.

  20. Habermas, supra n. 14, at 89. As commentators have pointed out, Between Facts and Norms is itself a massive argument for an institutional solution as to how communicative power may be transformed into, and protected by, administrative power. See W.E. Scheuerman, “Between Radicalism and Resignation: Democratic Theory in Habermas's Between Facts and Norms”, in R. Von Schomberg and K. Baynes, eds., Discourse and Democracy: Essays on Habermas's Between Facts and Norms (New York: SUNY, 2002), 61–85, 78–79.

  21. Habermas, supra n. 14, at 104.

  22. J. Habermas, “Kant's Idea of Perpetual Peace: At Two Hundred Years' Remove”, in C. Cronin and P. de Greiff, eds., The Inclusion of the Other: Studies in Political Theory (Cambridge: MIT, 1998), 165–202, 190.

  23. S. Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge University Press: Cambridge, 2004), 43. It is in this specific sense – that sovereignty and human rights are co-original – that we can interpret Habermas’s call for Constitutional Patriotism [Verfassungspatriotismus]. See Habermas, supra n. 14, at 500; and G. Borradori, Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago: University of Chicago, 2003), 73–81.

  24. Habermas, supra n. 14, at 128.

  25. Ibid., at 135, emphasis added.

  26. We do not claim a homology between law and morality. Habermas develops this point carefully: positive law provides a motivational structure (facticity) absent from moral law. Moral discourses in the law are moral because they assume a universal audience. For a detailed account of this relationship, see W. Rehg, “Against Subordination: Morality, Discourse, and Decision in the Legal Theory of Jürgen Habermas”, in M. Rosenfeld and A. Arato, eds., Habermas on Law and Democracy: Critical Exchanges (Berkeley: University of California, 1998), 257–271.

  27. Habermas, supra n.14, at 108–109.

  28. Ibid., at 108.

  29. Ibid., at 110, emphasis added.

  30. Deleuze and Guattari, supra n. 5, at 6, translation modified.

  31. G. Deleuze, Difference and Repetition trans. P. Patton (New York: Columbia University Press, 1994), Deleuze, 131, emphasis added.

  32. Habermas, supra n. 14, at 217.

  33. Deleuze, supra n. 31, at 154.

  34. In what follows, I move almost indiscriminately between Günther and Habermas’s theories of adjudication. Between Facts and Norms is deeply indebted to Günther (in fact, it could be argued that Günther’s dissertation The Sense of Appropriateness initiated a substantial turn in Habermas’s thought by separating out the two moments of justification and application, which I explain at length below) as is plainly indicated by its preface: “I [Habermas] am indebted to Klaus Günther’s legal expertise for so much instruction that I almost hesitate to relieve him of responsibility for my mistakes...” (xliii). More substantively, when Habermas preludes his theory of adjudication in Chapter 4 it exactly replicates Günther’s scheme (162). Moreover, in his main treatment of Application (Chapter 5), it is expressly Günther’s theory of appropriateness which is adopted as Habermas’s own. For these reasons, we cannot concur with Jacques Lenoble’s identification that “Habermas’s theory of legal judgment (his ‘theory of adjudication’) relies entirely on a procedural version of Dworkin’s coherence theory.” J. Lenoble, “Law and Undecidability: Toward a New Vision of the Proceduralization of Law”, in M. Rosenfeld and A. Arato, supra n. 26, 37–81, at 63.

  35. Justification discourses are those discourses that seek to generate norms that are intersubjectively shared and affirmed for good reasons (e.g., the plane of legislation, where a law is accepted by all those affected). Application discourses are those discourses in which a norm is applied to a case in order to treat it (e.g., the plane of adjudication, where a judge decides which norm ought to apply to the case at hand).

  36. A. Wellmer, The Persistence of Modernity: Essays on Aesthetics, Ethics and Postmodernism trans. D. Midgley (Cambridge: Polity, 1991), 130. Wellmer’s essay is very intriguing from our perspective as it tries to develop a situation-sensitive concept of practical judgment and action while remaining tenuously within the tradition of discourse ethics. There are, however, crucial points where our interpretations diverge (especially around his conception of law/legitimacy as set against morality/validity, and his conception of appropriate action and situational appreciation as the negation of nongeneralizable maxims).

  37. K. Günther, “A Normative Conception of Coherence for a Discursive Theory of Legal Justification”, Ratio Juris 2/2 (1989), 155–66, 156.

  38. K. Günther, The Sense of Appropriateness: Application Discourses in Morality and Law trans. J. Farrell (Albany: SUNY, 1993), 33, emphasis added.

  39. Ibid., at 34.

  40. Ibid., at 35, emphasis added.

  41. Ibid., at 40.

  42. Habermas, supra n. 14, 162.

  43. Ibid.

  44. Ibid., at 217.

  45. Ibid., at 198.

  46. “The principle of universalization compels the participants in discourse to examine contested norms in view of foreseeably typical cases, in order to determine whether the norms could meet with the considered agreement of all those affected. Moral rules pass this test directly only to the standard situations that have already been considered in their antecedent clause.” Ibid., at 162.

  47. Günther, supra n. 38, at 53.

  48. I. Kant, Critique of Judgment trans, W.S. Pluhar (Indianapolis: Hackett, 1987), First Introduction, Ak. 215.

  49. For a similar treatment of Aristotelian categories, see Deleuze, supra n. 31, at 30–35.

  50. Günther, supra n. 37, at 163.

  51. Habermas, supra n. 14, at 219. In the original translation of Günther’s text, supra n. 37, there is no interpolated ‘subtly’.

  52. Habermas, supra n. 14, at 198.

  53. Günther is strict on the following: norms at the level of justification do not collide because practical reason is non-contradictory. They apparently collide in concrete situations where one norm must be suspended in favor of another. He is fond of the following example. We have the two following justified maxims: ‘Promises ought to be kept’, and ‘In case of emergency you ought to help your friend’. Prima facie they do not conflict, but say I had accepted a dinner-party invitation and just before I go my friend falls ill. We have a conflict. For reasons we won’t go into, application discourses determine that the second maxim is appropriate and appropriately suspends the first. Supra n.37, at 158–159, 161–162; and supra n. 38, at 207–219.

  54. Günther, supra n. 37, at 158–159.

  55. Habermas, supra n. 14, at 219; Günther, supra n. 37, at 163.

  56. Günther, supra n. 37, at 163.

  57. E. Alliez, E. Albert, K. Ansell-Pearson, A. Boyer, D. Toews, and A. Toscano, “The Contemporary: A Roundtable Discussion”, Pli 8 (1999), 119–137, 135.

  58. Deleuze, supra n. 4, at G. The ellipses signal pauses and hesitations, not my textual amendments.

  59. Deleuze and Guattari, supra n. 5, at 16, translation modified.

  60. Ibid., at 28. The ‘problem’ is not a notion unique to What is Philosophy? (in fact, it is more extensively discussed in Difference and Repetition and The Logic of Sense); what is unique, however, is the connection of the problem with constructivism.

  61. Deleuze, supra n. 31, 132, 148–151.

  62. See F. Zourabichvili, Une philosophie de l’événement (PUF, Paris, 2004), 15–27.

  63. Deleuze, supra n. 31, at 134. For this ‘critical’ strain of Deleuze’s thought see his Nietzsche and Philosophy trans. H. Tomlinson (New York: Columbia University Press, 1983), 106. “The use of philosophy is to sadden... [Philosophy] is useful for harming stupidity, for turning stupidity into something shameful.”

  64. Deleuze, supra n. 31, at 139, emphasis added.

  65. Ibid., emphasis added, translation slightly modified.

  66. Deleuze, supra, n. 4, at 169.

  67. See Deleuze and Guattari, supra n. 5, at 100.

  68. A fascinating text in relation to the circumvention of the legal encounter is Habermas’s The Future of Human Nature (itself first delivered at a philosophy of law colloquium organized by Dworkin and Nagel). Here, Habermas takes a position against the use of genetic technologies insofar as they precipitate an unprecedented instrumentalization of the other, an instrumentalization that threatens, according to Habermas, to disrupt ethical horizons of understanding oneself as the unalloyed author of one’s life. What is tricky, however, is that Habermas acknowledges that certain genetic selections and modifications must be permitted insofar as these prevent debilitating diseases and suffering. This makes it very difficult to draw a determinate boundary between prevention and eugenics (21). How does Habermas propose to solve this difficulty? By projective speech-acts. What we must do is adopt a communicative attitude towards the embryo, as if this embryo were a communicative subject answerable in a criticizable sphere of reasons, to consent to the genetic intervention in advance and affirm the clinical (and not instrument) attitude of the persons intervening. “The presumption of informed consent transforms egocentric action into communicative action... what solely matters here is not the ontological status of the embryo but the clinical attitude of the first person toward another person – however virtual – who, for some time in the future, may encounter him in the role of a second person” (52). This performs a modification of the perfect norm to enable the preservation of its function: avoiding encounters. Here, the justification discourse is thrown into the future on the presumption of an interlocutor who would adopt our same moral reasons and therefore countersign the genetic intervention to be made upon his pre-consensual biology (astonishingly, this consent can include the destruction of the embryo – a euthanasia assumed counterfactually by means of dialogue before dialogue is ontogenetically possible (43)). With this move, Habermas avoids the specificity of jurisprudences around case specific problems of body/technology/ethics in favor of a projected speech act of virtual justification discourses. J. Habermas, The Future of Human Nature trans. H. Beister, W. Rehg and M. Pensky (Cambridge: Polity, 2003).

  69. See H. Bergson, Time and Free Will: An Essay on the Immediate Date of Consciousness trans. F.L. Pogson (New York: Dover, 2001), 177–179; H. Bergson, Creative Evolution trans. A. Mitchell (New York: Dover, 1998), 58–59; and, most decisively, H. Bergson, The Creative Mind: An Introduction to Metaphysics trans. M. L. Andison (New York: Citadel Press, 1974), 91–106.

  70. The French Revolution and Human Rights: A Brief Documentary History, ed., L. Hunt (Boston: Bedford, 1996).

  71. Ibid., at Document 20, Abbé Maury, December 23 1789, 88–89.

  72. Ibid., at Document 22, Prince De Broglie, December 24 1789, 91–92.

  73. Ibid. Document 23, Petition of the Jews of Paris, Alsace, and Lorraine to the National Assembly, January 28 1790, 93–97.

  74. Ibid., at Document 19, Count de Clermont Tonnerre, December 23 1789, 86–88.

  75. Lynn Hunt’s editor’s introduction, however, betrays the richness of the texts she collects by coding its narrative through a vulgar historicism: “The French debates over citizenship and rights reveal a recurring clash between the ideals of human rights philosophy and the reality of eighteenth century prejudices.” And so, she rehearses a story of the enunciation of rights that slowly spreads and wears down pre-reflexive, prejudices blinders of the time (e.g., sexism, racism, slavery, religious intolerance, etc). But this exactly misses the point of her documents: these documents witness the endeavor to make sense of and to modify multiplicities given a new rights discourse, and to make sense of and modify rights discourse in light of those multiplicities. L. Hunt, “Introduction: The Revolutionary Origins of Human Rights”, in L. Hunt, ed., supra n. 74, 1–32, 18.

  76. United Nations Universal Declaration of Human Rights, 1948, Article 7.

  77. Deleuze, supra n. 4, at G.

  78. In his brief but incisive consideration of law and Deleuze, Paul Patton also mentions this case but for different reasons than my own. He focuses on Mabo v. Queensland to develop a concept of smooth space between indigenous and colonial law. See P. Patton, Deleuze and the Political (London: Routledge, 2000), 129, 148.

  79. Delgamuukw v. British Columbia, 1997, 3 S.C.R., at 87, emphasis added.

  80. See A. Lefebvre, “A New Image of Law: Deleuze and Jurisprudence”, Telos 130 (2005), 152–175.

  81. I would like to thank Jennifer Culbert, Hent de Vries, and Melanie White for their insightful comments.

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    Alexandre Lefebvre

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Lefebvre, A. Habermas and Deleuze on Law and Adjudication. Law Critique 17, 389–414 (2006). https://doi.org/10.1007/s10978-006-9003-1

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