Judgment: The Emergence of Legal Norms

"Do indispensable norms still exist in our society" (Luhmann 1993)?¹ Philosophy—at least philosophy that sees itself as a calling—has always answered this question in the affirmative, has always defined its task as the possibly infinite but nevertheless absolutely necessary search for such norms. If it no longer recognizes itself in that self-description, it is because philosophy and, indeed, all of Western civilization are in a state of deep crisis, if not outright decline. That, at any rate, is how the traditional complaint goes. Husserl, you will recall, saw the twentieth-century "crisis of European sciences" manifested in a struggle between two notions of philosophy: one is skeptical, irrationalist, prone to nihilism, and, thus, a nonphilosophy, in fact, philosophy's antithesis; the other philosophy, true philosophy, however, still seeks to fulfill the "telos which was inborn in European humanity at the birth of Greek philosophy—that of humanity which seeks to exist, and is only possible, through philosophical reason, moving endlessly from latent to manifest reason and forever seeking its own norms through this, its truth and genuine human nature." True philosophy, therefore, originates with "Greek humanity," and remains forever the basis of all that is "essential to humanity as such" (Husserl 15). In a similar, if more straightforward and less theologically tinged manner, Leo Strauss insists "that there is something in man that is not altogether in slavery to his society, and therefore that we are able, and hence obliged, to look for a standard with reference to which we can judge of the ideals of our own as well as of any other society" (3). Philosophy—and again we mean Greek philosophy—is credited with the discovery of nature, for it is with the concept of a "trans-historical, trans-social, trans-moral, and trans-religious" nature that the "primeval identification of the good with the ancestral" can be replaced by the "fundamental distinction between the good and the ancestral." Thus, Strauss continues, "the quest for the right way or for the first things is the quest for the good as distinguished from the ancestral. It will prove to be the quest for what is good by nature as distinguished from what is good merely by convention" (89, 86). Despite these noble, twentieth-century efforts, however, both transcendently and transcendentally grounded, normative assurances seem to have disappeared, almost as if the globe that is our universe has been projected, Mercator-like, on a flat surface, the immanence of which we are unable to escape. This immanence, mind you, is not without its "folds" or layers, but each fold is itself folded, each layer layered, and no ultimate level offers itself up as the presuppositionless presupposition or external perspective from which a first philosophy could be initiated.

Does this mean, then, that when we return to our initial question—"Do indispensable norms still exist in our society?"—we must answer in the negative? Not necessarily. Niklas Luhmann—from whom I have borrowed the question—sees in the ubiquitous notion of value "precisely that which we seek: the highest level of relevance with normative substance." He goes on to say: "When communicating value judgments, it is apparentthat the judgmentsare not asserted according to theses, but rather insinuated. Values are deemed 'valid' communicatively by way of imputation" (1993, 18). Consequently, as the blind spots from which decisions are made, "values" or "norms" are "indispensable" as long as they remain invisible, as long as they remain the implied horizon of judgment and not the explicit reference, "because explicit thematizations in communicationarealways understood to include acceptance or rejection of the implied meaning . . . Values are therefore considered . . . unfounded. One cannot, then, call for their foundation" (1993, 18-19). Luhmann's remarks are descriptive, or present themselves as such, in that they offer a sociological, not a philosophical, analysis of moral and legal normativity. They are also polemical, aimed implicitly at the persistent attempt of Jürgen Habermas to do just what Luhmann says cannot be done, namely, rationally...