Thoughts about law, beside Habermas’ text: Morality, Law, Politics[1] [2]


“There are 144 customs in France, they say, that have the force of laws; these laws are nearly all different. A traveller in this country changes laws almost as often as he changes horses. […] Nowadays jurisprudence has perfected itself so much that there is no custom without many commentators; no one of which, needless to say, is of like mind.”[3]

With these words, Voltaire described the French legal system before the Revolution: a variegated construction hosting in its recesses the privileges of clergy and nobility. This situation changed with the French Revolution[4] and the passage to a unified law of an abstract and universal kind, which still today constitutes the backbone of state organizations.

An abstract thought is devoid of colours and smells, of places, dates, and faces: the abstract and universal shape does not allow it to favour certain individuals rather than others, because it can not name them (in fact, should it name them, we would get an expression not abstract, but having concrete references).[5] Being unconnected to any definite conditions, it is portable throughout the different places of our social universe of today and tomorrow.

Let’s take a look at article 575 of the Italian penal code, which concerns murder: Anyone who causes the death of a man shall be punished with imprisonment for not less than 21 years. This text, by means of the word “anyone,” clearly refers to every individual, not only those belonging to certain social groups. This text does not talk about a murder committed by the poor against the rich, and neither about longer or shorter detentions for men or women.[6]


Max Weber talks about law’s rationality referring to the universal and abstract form of laws, in addition to other linked characteristics, such as the organization of the laws in a sentences system; the absence of specific addressees of the law; an application as mechanical as possible, intended for minimizing cases where subjective interpretation is needed; clearness and simplicity to generate in citizens definite expectations about what is allowed, which are important premises for social and economical projects.

In this conception of law’s rationality, attention is not directed to what is said, but to how it’s said. Indications are given not about the content of a law, but about the shape in which it’s written. Therefore one can talk about law’s formal properties.
If we imagine photographing a law, we will obtain a photo in which it will be possible to detect rationality as intended by Weber, which in his speech refers to law’s structure and not to law’s processes of formation, nor to law’s application processes, for capturing which a video would be needed.

According to Weber, law’s rationality is the main property that allows it to justify power, to legitimate it in the people’s eyes. In fact, governments don’t limit themselves to impose by force a series of rules made at their pleasure without respecting any principles, but they need to operate within laws capable of gaining some level of acceptation from the population.[7]
The alternative, an undesirable one, is a completely authoritative power operating without consensus, by force alone.


Historically, centralized law with abstract and universal properties functioned in contrast to the privileges of the clergy and nobility, and thus favoured those who gained wealth by their labor instead of by birth, rent, or tradition. Thanks to ownership protection, many citizens can accumulate and preserve the fruit of their work. As such, conditions are created for an increased importance of the markets where individuals meet one another to seek advantages by exchanging goods and services, without violence, in the shadow of a regulation guaranteed by a state having force monopoly.

The described change represents progress the moment it allows citizens to realize their life projects, but it’s not devoid of negative aspects. In particular, it does not hinder the formation of a wide swath of the population that falls beneath the minimum income level required for a dignified life. If this malaise strata assumes a systemic nature, the need arises for its systemic management by the state by means of apposite rules.[8] Examples are disability or retirement pensions, health care, and collective work contracts specific to each industry.

Where is the problem, for him who desires to preserve law’s rationality? The point is that laws made to improve the status of the poor will not speak about men in general, as required by law’s abstractness and universality; instead, they will specifically talk about the poor. Tutelage of weak men turns to be an increase in law complexity, and it pushes us away from formal rational criteria, because of the need to define specific situations in which help and intervention must be addressed.

To sum up, simplicity and abstractness are applied at the beginning of the nineteenth century to fix inefficient laws that became entangled with privileges. Moving away from the zero point where this change occurred, the negative effects of the new laws accumulate and become evident as grey zones[9] 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]


In the ancient empires, law is based upon its sacred origin, upon habits and upon bureaucratic action. The sovereign can’t make of law what he wants, because this would mean going against the tradition and sacred authority law derives from. The fact that political power can’t dispose of law by will is indicated by talking about an unavailability moment.
In the moment when custom and the sacred sphere stop being sources of law, the only references remaining are the collections of laws created by man, who, having created them, can modify them too; so one faces the risk of law being manipulated by the political sphere for its own purposes, and the need is felt to anchor law to a referent that can protect it from the whims of power; one such possibility is to establish law as an expression of the collective will of the people, which authority is then placed above every other state’s body.

Should someone ask me what I’m doing now, I would not reply analysing the inside of my psyche and trying to detect the elements of thought involved in writing, and those elements having a rest, but I would tell him: “I’m writing an article about a Habermas’ book.” Now let’s create a mind experiment: try to imagine a people provided with a collective will, and ask him what is right and wrong. I don’t know what he will answer, but if he thinks as did I above, then he will speak without reference to his internal divisions, without mentioning single citizens and without referring to specific social situations. He will speak in an abstract way.

This is how one can think that a collective citizens’ will expresses itself with abstract and universal laws, with which it preserves law’s autonomy in relation to politics, opposing the inopportune wishes of the government with the necessity of expressing rules in a certain manner that is supposed to guarantee justice, avoiding explicit privileges allocated to certain social classes.

Habermas regards as an error considering the universality and abstractness of language as a guarantee that the aims of a collective monolithic will are fulfilled.[11] Universality and abstractness of law remain as reference points, but it’s necessary to deepen our understanding of how decisions form themselves, breaking the black box of people’s collective will as it has been thought by 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 society’s 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 it’s 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.


In our society there can be different moral types; for example, there can be a morality based on the maximization of total happiness or one based on the practice of certain personal virtues. There can be one based on the love of the neighbour, or again another based on accepting only those behaviours that could be put to use by all men without damaging society. So we find ourselves in a situation where a unique law must be able to mediate among varying moral systems.

Aside from this, moral nature is intrinsically different from legality. Morality is more propositive, and drawing examples it can inspire action, while law is a prohibitive system. In addition, morality can talk about invisible thoughts, while this area remains inaccessible to law: one can not be on trial for his intentions. Law handles concrete and identifiable objects, while morality is (or can be) the seat of more daring inspirations and is hard to pigeon-hole systematically. Morality can describe a behaviour model that is a fragile equilibrium, rarely only reachable in practice; by the finger, morality can even point to the moon, and it’s not said that its speeches always reach definite conclusions. On the contrary, law must be a rule easily enforceable in every day contexts, and must arbitrate conflicts on the routes of the world. Law must (or should) give rise to fast and objective material decisions, while needing only reasoning that is as simple and repeatable as possible.
If we think about their respective social functions, we can consider law as a sort of completion of morality, because it constitutes the mechanical apparatus by which human conflictuality magma is modelled towards the direction suggested by morality.


Habermas longs to detect the criteria permitting the elaboration of a fair and functional law for the contemporary context, and the European context in particular. To do this, he begins by discussing the concept of rationality described by Max Weber, and he means to give a better version of it, one more resistant to the law deformalization problem as well as capable of regulating how law absorbs moral matters, and of protecting law itself from attempts at manipulation led by political power.[15]

Habermas research is quite broad, taking account of different themes, from the origin of law in prehistoric societies to contemporary trends in legal thought in Germany and the USA, and from issues related with the formation of a united Europe to the thought of Niklas Luhmann and Friedrich Fröbel. Special attention is given to a series of considerations about the French Revolution and to the Enlightenment thought of Kant and Rousseau.

The solution detected by Habermas is a law’s rationality intended above all in a procedural sense: that is, the formation processes of political-legislative will must be such to receive the moral content present in public speeches made outside institutional structures, both political and juridical. Following Habermas, we see that democracy depends on the way we as citizens discuss arguments, on the quality of our speeches.

Habermas’ project is a political construction capable of incorporating different cultural shapes of life. Against this project of liberal democracy based on citizens’ awareness works that part of power that always longs for the dozing off of thought. In favour, here we are. If souls stay sitting in their armchairs watching TV, there is not much to hope for. But every time someone gets up from comfort to really want something, then the project regains strenght and a united, independent Europe returns to the realm of the possible, keeping up with its role in history.

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  1. [1]I worked on the following Italian edition: Jürgen 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); Volkssouveränität als Verfahren (1988); and Staatsbürgerschaft und nationale Identität (1990), in Jürgen Habermas, Faktizität und Geltung. Beiträge 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. [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. [3]Voltaire, Oeuvres de Voltaire, Dictionnaire philosophique par Voltaire (Paris: Imprimerie de Cosse et Gaultier-Laguionie, 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 différentes. Un homme qui voyage dans ce pays change de loi presque autant de fois qu’il change de chevaux de poste. […] aujourd’hui la jurisprudence s’est tellement perfectionnée, qu’il n’y a guère de coutume qui n’ait plusieurs commentateurs; et tous, comme on croit bien, d’un avis différent.”
  4. [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. [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. [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.
  7. [7]From common citizens, but from legal professionals as well.
  8. [8]The so-called welfare state.
  9. [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. [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 can’t avoid having negative as well as positive aspects too.
  11. [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
  12. [12]“It is necessary that the moral substance of self-legislation – compactly concentrated by Rousseau in a single act – disarticulates itself through the many grades of the proceduralized formative process of opinion and will, thus becoming accreditable in low-denomination banknote also.” Habermas, “Morale, Diritto, Politica” p. 99
  13. [13]“Marx and Engels limited themselves to touch on the Paris Commune, and they always disregarded every issue of democratic theory. […] To the enlarged concept of politics, it did not correspond to any theoretical deepening about which functions, communication forms, or institutionalization conditions, should characterize an egalitarian formation of the will” Habermas, “Morale, Diritto, Politica” pp. 88-89
  14. [14]“Every democratically enlightened liberalism keeps faith to Rousseau’s intention, but in the same time recognizes that popular soveraignity shall express itself starting from the discursive conditions only of an opinion and will formation process, differentiated in itself.” Habermas, “Morale, Diritto, Politica” p. 85
  15. [15]In the sense that there is the aim of defining a criterion under which political power can’t 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




An accounting preamble: context ignorance

When I began working in the purchasing office, still I didn’t know anything about accounting. Only, I gave the suppliers’ invoices to the external accountant, with some days in advance in respect of the VAT deadline. I had no idea about the routes the accounting clerks forwarded the documents to. If one talked about liabilities and equities I could follow the reasoning for a couple of sentences, but then I did not understand anymore the direction of credits and debits. I was aware there was a list of all the accounts and that it’s just called chart of accounts, but I knew a few entries only belonging to the expenses section; more precisely, I knew the entries positioned in the top part of that section, the ones related to the raw materials I was used to manage. Yet the subdivisions among the different kinds of services made me suspicious, and I knew that going more down there was strange things like the non-deductible input tax, amortizations, capital losses, or the cash over and short account.

After a couple of years from my entrance in the company it came the moment for us to bring the accounting inside (before, as I just hinted at, the accounting was managed by an external accountant). This happened together with the purchase of an AS400 server, and it was me managing both these changes, seizing the opportunity for learning how the accounts work.
We were in the half of the nineties, and Google was not there for helping me; I learned the matter from the programmer of the accounting software, and of course asking something to our external accountant. In a few weeks I started understanding the difference between credits and debits happening in the Assets rather than in the Revenues, and within some months I became familiar with bank accounts and year-end tasks. Now I usually record customs bills of entry, purchasing invoices with many different types of VAT, payroll liabilities and expenses. Let’s say I know enough about this stuff to weigh the competencies of an accounting clerk in a job interview.

Context awareness and crystal nature

There was a time when ignorance was prevailing, and to me accounting was a bother only, an address to which I sent requirements and from which I awaited answers. I saw what entered it and what came out of it, but with no understanding about the linkage between the input and the output. The ignorance about the issue sometimes brought me to underestimate its complexity, or, on the contrary, to fear excessively its consequences. Behind that word, there was in my mind an aggregate of external points of view, not a thoughts structure pertinent to the reality that it pointed out.
Subsequently an experience took place by means of which a sound awareness of the context built itself up, and today, before the voucher of the bank, I don’t hang on pondering anymore: soon I proceed recording it in the book of original entry. If checking the bank statement I find something that does not balance I just have in mind where the origin of the matter can be found. Yesterday, bookkeeping was the name of a wood which paths I didn’t know, today it’s a domain I can see through as it was a crystal clock in which I distinguish the moving mechanisms.

As months and years went by, I got skilled in other areas too inside the company, discovering crystal clocks in the sales office and in the production department, in the human resources management and in the most technical issues. Outside business, I found crystal clocks in women’s behaviours, in politicians’ talks and of course in university courses.

Transparency as a life-style

By experience and study, mass becomes transparent. Every work is a cultivation that makes the ground evaporate, leaving visible the knowledge gold seam. Earth is temporary only. The eyes sight teaches us the opaque surfaces, but we prefer looking for the crystal clocks. Transparency becomes a religion, consistent with the production context and capable to lead us to the most coloured countries of the Here and Now.

Sure, knowing the unknown contexts can be learned it’s not enough to make them transparent, but we can make it easier to happen, changing the mind attitude by an expectation for a transparent world. The difference is in becoming aware that every opaque substance is the starting point only for discovering an impalpable relations system. There is a change in the stance towards mass, that stops being a barrier against the unfolding of the thought, which tracks branch off in every direction, like Escher’s staircases. Objects become paths webs and the world turns to be the moves of a bright thought without any shadow.

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It’s almost midnight and the cold sting us waiting for Micaela. You are a lot of things, you are fizzy. You are swaying with the hands in the pocket, and there is more style in your poses than in a famous musical of the seventies. You rattle off the news since the last time, giving a different tone to every episode with an amused recitation. Behind your variegated words one can glimpse a thin will directing the merry-go-round of events to lead it in a place of the future. I, hanging in this mild winter euphoria drawn by your behaviour, feel that your skin became tough due to the suffered scratches, and appreciate your mind, lucid in underlining your competencies and your limits at the same time.

Your good mood is sustained by the awareness of happened things. The decisions took in the artists group, the ideas conceived for a video, the read books, the job opportunities. But as hours goes by, happened things drift away from the present sliding into the past. Your mood mechanisms realize this and they go to check the new nearest past that in the meantime has set itself up. They take note about all the news just come from the outside world and about the undertakings you accomplished. If enough structure has not been delivered to the mind, the mood rating agencies will decide for a downgrade. You must be hard-working in silence to meet the delivery terms and gain a good time extension, avoiding the game over.

But putting a brake on the dispersive cues and focusing the attention on the just begun routes it’s not enough. Every work is like a gathering, and before beginning it’s necessary to prepare a container for saving the efforts. Being an issue about expectations and moods, that are pieces of the spirit, the container can’t be other than a noun. You have to give a noun to your jobs before beginning them, so you will know when they will be accomplished, and then you will be able to put them on display along the thought hallways.

It’s not easy to take happiness in our hands without making it die. Usually, when we face the matter we realize that we should have done something before. One has to beat to the draw, giving more awareness to his building activity. Working is not enough, one has to prepare the nouns the thought vanishing flows can be pinned down to.

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My customer wants a picture for an article. It must be clear without falling into the banal; i don’t find it. This article talks about children in a context of divorce, and i’m collecting sad and crying children, in the full or in the dim light, sitting alone or pulled by parents… The sheet and the thought fill up with images elbowing for a place, without leading me beyond. My creations become a little crowd besieging me with bother. I find myself caught between an inspiration need and the impossible gesture of stretching out my hand for seizing it. The more I try, the more it escapes me.

Talking about his animals, Konrad Lorenz pointed out that game occurs when there is no danger and the belly is full: when there are not important and urgent issues to face. But the appointment with my buyer is exactly this, and it seems to prevent the favorable circumstances for the creative game that itself requires.
Clearly, working doggedly on the aim does not favour the birth of the image, but neither i can stay with folded arms while a stupid clock is scoffing at me. What work can i carry on with to get closer to the inspiration, downwind, without making it escaping? The right image seems to come when it feels like coming only, but there must be in the back-stage of the mind a suitable situation for its birth. There must be somewhere between the conscious and the inconscious an idea of the structure that i have to illustrate, capable to supply raw materials for starting the neural magic off towards the G point of creativeness.

And so, i stop drawing children and i start writing where they came from and where they will go, forgetting their appearance. I let fading away all the images i collected before, because they absorbed the effort sweat they had been conceived with, and the smell was not good. I interview the subject of my paintings and i tell in words his past and his future, jumping from one thing to another or deepening in the never ending details, inventing something completely or mixing my experiences with my fancies. In this way i can give vent to my stress with a work bringing me closer to the result. The stories causal nexuses sediment in some hidden place of the thought, populating it with seeds i await a bud from, in occasion of which i will come back from the words world to the images one.

When i insisted on searching inspiration in the images field, the badly functioning creations[1] asked me to trace the breakdown and to make them worthwhile. So every figure that was not the right one weighed me down ending up by being a damage. Now that I moved into the words field everything i build is nothing and does not weigh me down, slips away without regrets because it’s not what I’m looking for.[2]
But really this words flow is not a nothing only, it’s the care too for something still i don’t see; as there is a rain dance, there is a dance for the images, and words are drops to forget and find them again.

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  1. [1]All but the last one: the good one interrupting the search.
  2. [2]Of course, the difference between the images dynamic and the words one is not due to their intrinsic nature; it’s because of images are the destination field, while words are the intermediate field.

The inspiration portrait, and philosophy wearing a blue overalls


I was reading a philosophical text [1] and I took notes beside the printed letters. Then i got involved in rearranging them in regular phrases. I was wrong: i put on the paper only the six, seven or thirteen words that are just enough to identify the ideas i had a glimpse of. Instead, i should have descended into the galleries the creative thought had come from, before they became closed again.

 Notes about new ideas should be taken writing complete phrases only, when you are near the source of the inspiration that still is alive and the tracking of its background stories is feasible. Inspiration is fleeting, and its portrait cannot be postponed.

 Understood what to do for saving the intuition, here I am, pacing the thought roots on the contrary, in the hallways of this mobile and mysterious labyrinth, that gives itself to my view for a short time.

 Walking through these caves, I realize the words are no longer inside me and chosen by me, but they come to meet me brought by a coal cart in a tunnel, like an Indiana Jones movie or a Jules Verne book. But where do I stand?? May be these rooms are the department where I will meet the philosopy wearing a blue overalls, busy in an attempt to set in motion the metaphysics?

  1. [1]

    Heidegger, What is Metaphysics?

    Italian edition: Heidegger, Che cos’è metafisica, in “Segnavia”, Biblioteca Filosofica, Adelphi 1987, edited by Franco Volpi, Friedrich-Wilhelm von Herrmann . Pagg. 59-77