This post is an adaptation of this printable, PDF document. 

This post is intended to assist law professors who wish to incorporate critical theory (in general) and Habermas (in particular) into their teaching.  This post addresses just one essay by Habermas that is representative of his thought.  It does not address other important areas of Habermasian theory such as the “public sphere” (a concept that the essay nevertheless implicates). 

This post should provide some basic insights into Habermas that could be incorporated into a law school classroom.  Contracts in particular would benefit from Habermasian analyses, which could just as constructively be applied to torts, evidence, constitutional law, or any course dealing with litigation and the courtroom.  This post provides basic information.  It does not tell law professors how to use the information.  The use will require creativity. 

Fundamental to the paradigm of mutual understanding is … the performative attitude of participants in interaction, who coordinate their plans for action by coming to an understanding about something in the world.  When ego carries out a speech act and alter takes up a position with regard to it, the two parties enter into an interpersonal relationship.  The latter is structured by the system of reciprocally interlocked perspectives among speakers, hearers, and non-participants who happen to be present at the time. 

        —Jürgen Habermas, “An Alternative Way Out of the Philosophy of the Subject”[1]

In a way, “An Alternative Way Out of the Philosophy of the Subject” is a response to Foucault’s theories of subjectivity that treat subjects as produced by forces of power.  Habermas seems to consider Foucault’s theories as so preoccupied with knowledge formation and structural preconditions for knowledge formation that they (the theories) become pseudoscience abstracted from practical realities.  A Foucaultian paradigm centers on subjectivity trained by mechanical forces whereas a Habermasian paradigm explores communicative reason in the context of discourse enabled by the ideations of individual subjects articulating their positions to one another in mutually intelligible utterances.       

Contra Foucault, Habermas submits that reason—articulated, assimilated, and mediated by language—must be understood as social.  For social interaction to be meaningful, its interlocutors must believe that their articulations are objectively “true” or sincere (I place “true” in quotations because the “pragmatically expanded theory of meaning overcomes [the] fixation on the fact-mirroring function of language”).  Speech must be governed by points of common understanding.  These points are reached when “ego carries out a speech act and alter takes up a position with regard to it.”  Ego, here, refers to a person’s conscious awareness that is capable of being conveyed in speech.  “Alter” does not refer to alter ego, but to some agent outside the subjective world of cognition, intention, and belief.  This “alter” is part of the external or objective world to which the ego can articulate feelings or thoughts, provided that ego and alter have in common a familiar discursive space (a lifeworld) for their subjective expressions.  By this reading, alter has an ego, and ego can be an alter.  The terms simply depend upon which subject is articulating his position in a given speech situation; the terms are merely descriptive.  

To claim that we can comprehend events or things in the world is to suggest that we can speak about them.  To speak about events or things in the world is to convey information about them from one party to another using shared vocabularies governed by rules that the parties accept unconditionally. The interpersonal relationship among or between parties, as Habermas suggests, is “structured by the system of reciprocally interlocked perspectives.”  The study of this relationship brings Habermas further away from the Foucaultian paradigms of subjectivity and towards the paradigm of mutual understanding that has come to mark Habermasian thought.  Read the rest of this entry »