Democracy as corrective to property - a procedural understanding of takings

TABLE OF CONTENTS

INTRODUCTION

I. DISCOURSE THEORY AS MODEL TO RECONCILE “FACTICITY” AND “VALIDITY” OF LAW
A. Deficiencies of Natural Law and Legal Positivism
B. Habermas's Discoursive Approach
C. Relevance for Takings.
1. Supreme Court's Inconsistency
2. Federal Constitutional Court's Positivism

II.DISCOURSETHEORYANDTHEJUSTCOMPENSATIONCLAUSE.
A. Courts' Obligation to Remedy Procedural Deficiencies
B. Procedural Interpretation of the Just Compensation Clause.
1. Discourse Theory and its Procedural Benchmarks..
2. Implementation into Takings Jurisprudence.

III.DISCOURSETHEORYVS.PUBLICCHOICETHEORY
A. Public Choice Theory Revisited.
B. Discoursive Critique of Public Choice Theory in the Context of Takings.
1. Public Choice Holdings.
2. Discoursive Response to Fischel
a. "Exit" and its Communicative Value
b. "Exit" as Proxy

CONCLUSION

TABLEOFCASES

BIBLIOGRAPHY

Introduction

The procedural understanding of constitutional provisions has undergone a remarkable development over the last decades. Beginning with a footnote by Justice Stone in Carolene Products ,^[1] procedure was found to be the appropriate basis for judicial review^[2] and made its way into public choice theory.^[3] One of the more recent contributions is Professor Habermas’s discourse theory as philosophical response to the emergence of pluralist “lifeworlds” within modern Occidental communities.^[4]

Whereas the academic awareness of procedural issues seems to have progressed from quite specific legal questions to general philosophical problems, I would like to address them from the reverse perspective. What does philosophy have to say about constitutional interpretation? More specifically, what are the implications of Habermas's "discourse theory" for the understanding of takings?

To answer these issues, Part I presents discourse theory as an alternative legal concept to natural law and legal positivism as applied by the American and German constitutional courts in the context of takings.^[5] In Part II, I shall claim that the discoursive approach can help to promote a procedural understanding of the Just Compensation Clause. Part III, finally, uses the philosophical background of discourse theory to test procedural recommendations of public choice theory.

I.DISCOURSE THEORY AS MODEL TO RECONCILE “FACTICITY” AND “VALIDITY” OF LAW

I will begin my analysis by offering discourse theory as a substitute for natural law and legal positivism. Accordingly, I shall critically summarize the latter legal concepts and give an introduction to Habermas's discourse theory. I will complete this part by portraying the relevance of natural law and legal positivism in the takings jurisprudence of the Supreme Court of the United States and the Federal Constitutional Court of Germany.

A. Deficiencies of Natural Law and Legal Positivism

Whatever legal theory one adheres to, there seems to be a common denominator. This is the idea that law has to be legitimate in order to rule people by commanding their compliance. The question then arises, what makes law legitimate? The answers have alternated dramatically over the course of the centuries.

Natural law philosophers refer to the divine origin or to the revelatory value of reason to dignify their legal concepts. They subordinate positive law to suprapositive standards. Positivists, in contrast, do not recognize such external sources of legitimization. For them, the answer is internal to the law. Legitimacy means the legitimacy of a specific government, or the compliance with the highest positive law;^[6] sometimes it is taken for granted,^[7] or -- typically -- is derived from the act of legislating itself.

In the final analysis, positivism is trapped in a self-referential system^[8] that sacrifices the “rightness” guarantee of law. The legislature becomes the ultimate arbitrator of what is right and wrong.

Different from natural law, positivism holds that one can determine legal validity without having to invoke moral considerations. Morality is rather the source of social critiques of the "posited" order.^[9] However, the only internal safeguard against arbitrary or capricious law is the legislative procedure as established by the constitution. In the worst case, law is whatever those who get hold of the legislative procedure label as such.

Reasonable people may differ about what is right and wrong – this is even more true in a pluralistic and heterogeneous society such as ours. Given our disagreement on fundamental questions such as abortion, assisted suicide, or flag burning, there does not seem to be a legal "Hercules" who could claim to know the correct answers.^[10] What, then, causes us to accept legal norms as legitimate law despite our disagreement? How can we bridge the gap between law as a mere at 113-14, 181-207 (1961); generally Frederick Schauer, Constitutional Positivism, 25 Conn. L.Rev. 797 (1993) (arguing for the coherence of a philosophical position that recognizes legally antecedent natural rights but does not grant all persons the power to locate and enforce them).

fact and law as the "right order"?

B. Habermas's Discoursive Approach

Habermas's approach tries to reconcile this tension on a procedural basis. Under his discourse theory, the hierarchy between the legitimating source of law and its legal offspring in the form of positive law is transformed into the tension between "facticity" and "validity," which is reconciled by the principle of popular sovereignty.^[11]

Popular sovereignty is the indispensable connection between law as a fact and law as embodiment of the right. It is based on the notion of the equal value and mutually reinforcing qualities of private and public autonomy.^[12]

In contrast to natural law, the validity of a norm is not examined against an external set of pre-given substantive values. Habermas differs also from positivism in claiming that law does not derive its legality from a closed system of norms in which its juridical effect depends only on compliance with higher positive legal sources. His insistence on the "rightness" of law is what distinguishes him. This is more than a formal difference.

According to his concept, the creation of legitimate norms along with the deontologically right order^[13] is linked to the conditions under which they were adopted. This understanding conceptualizes a "circular process" of a "logical genesis of rights"^[14] -- a system in which valid law has to be developed in “rational discourse.” The latter clearly separates him from positivism.^[15]

Habermas's discourse theory is not only a legal concept. It provides its own philosophical model. Similar to Kant's categorical imperative,^[16] Habermas's notion of popular sovereignty is free of substantive content and therefore allows an examination of human aspirations without injecting the subject under consideration into the standard itself. It provides Habermas with the backdrop against which realty can be measured.^[17]

He replaces, however, Kant's "practical reason," embodied in the categorical imperative, with what he calls "communicative reason."^[18] "Communicative reason" differs from "practical reason" insofar as it is no longer located in isolated individuals, but rather in their linguistic interaction. In doing so, Habermas lifts Kant's moral self-legislation out of its intra-personal monologue, and transforms it into an inter- personal and multi-perspective exchange of ideas. To put this another way, rationality rests no longer in isolated individuals but in the discourse among them.^[19]

Habermas's theory also has an essential advantage over Locke’s. Whereas Locke relied on the arbitrarily chosen ends of individuals which enter into the social contract, under Habermas's discourse theory those ends are themselves subject to deliberative reflection and changes.

At the same time, Habermas overcomes a primary defect of Rawls’s social contract theory -- its monological structure.^[20] In contrast to Rawls, Habermas does not seek to establish a universal and substantive principle of justice^[21] upon which everyone could agree by placing all contractors behind a "veil of ignorance", stripping everyone of her social position and concept of the good. Habermas, unlike Rawls, celebrates individual differences and submits every concept of the good to a comprehensive deliberation process and maintains thereby a relatively neutral stance,^[22] which results in an unprecedented openness toward a plurality of values and intertemporal changes.

[...]

^[1] See United States v. Carolene Products Co ., 304 U.S. 144, 152-53 n.4 (1938).

^[2] See JOHN HART ELY, DEMOCRACY AND DISTRUST, A THEORY OF JUDICIAL REVIEW (1980).

^[3] See infra at III.

^[4] See JÜRGEN HABERMAS, FAKTIZITÄT UND GELTUNG, BEITRÄGE ZUR DISKURSTHEORIE DES RECHTS UND DES DEMOKRATISCHEN RECHTSSTAATS (1992). English Translation: BETWEEN FACTS AND NORMS, CONTRIBUTION TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans.,1996).

^[5] I do not mean to suggest that natural law and positivism are the only legal concepts employed by the highest courts in the United States and Germany. For the limited purpose of this paper, I will, however, restrict my analysis to them.

^[6] See, e.g., Bernhard Schlink, Liberalism, Republicanism, and Constitutionalism: The Dynamics of Constitutional Adjudication , 17 Cardozo L.Rev. 1231, 1238 (1996) ("How much of a legitimation problem remains once we view constitutional adjudication as being established by the constitution? ... The constitution defines its role and grants its own legitimacy. More legitimacy it neither needs nor gets.").

^[7] See, e.g., H.L.A. HART, THE CONCEPT OF LAW 107 (1961) (stating that "the rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by referring to certain criteria [and] [i]ts existence is a matter of fact").

^[8] Compare GUNTHER TEUBNER, RECHT ALS AUTOPOIETISCHES SYSTEM (1989). English translation: LAW AS AN AUTOPOIETIC SYSTEM 41 (Anna Bankowska and Ruth Adler trans., 1993) (describing law as an autonomous and closed system in which norms and legal acts reciprocally produce each other through procedures and jurisprudence); also Frederick Schauer & Virginia J. Wise, Legal Positivism as Legal Information , 82 Cornell L.Rev. 1080 (1997) (introducing a concept of positivism that deals primarily with the empirical question of whether, and to what extent, law should be conceived as an autonomous system).

^[9] This was not always the case; Max Weber, for instance, denied that there is a morality beyond law by which it could be judged. See 2 MAX WEBER, WIRTSCHAFT UND GESELLSCHAFT: GRUNDRISS DER SOZIALÖKONOMIK 507 (2nded. 1924) (1921) English Translation: 2 MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY (Guenther Roth and Claus Wittich eds., 1978) (1921). See also Hart, supra note 7,

^[10] See JOHN RAWLS, POLITICAL LIBERALISM 97 (1993) (finding that under conditions of pluralism there is no single moral authority).

^[11] See Ingeborg Maus, Liberties and Popular Sovereignty: On Jürgen Habermas's Reconstruction of the System of Rights , 17 Cardozo L.Rev. 825, 832 (1996).

^[12] In Habermas's own words: "[A] legal order is legitimate to the extent that it equally secures the co-original private and political autonomy of its citizens; at the same time, however, it owes its legitimacy to the forms of communication in which civic autonomy alone can express and prove itself." Jürgen Habermas, Paradigms of Law , 17 Cardozo L.Rev. 771, 777 (1996).

^[13] Unlike a teleological approach, which advocates that something is right because of the goodness of its consequences, a deontological approach evaluates norms on the basis whether or not they are inherently right.

^[14] HABERMAS, supra note 4, at 121.

^[15] That is why Jacobson is wrong when he claims that Habermas represents "[t]he most rigorous positivism." See Arthur J. Jacobson, The Communicative Model, Systems, and Order: Law and Order , 17 Cardozo L. Rev. 919, 920 (1996).

^[16] "Act only in accordance with that maxim through which you can at the same time will that it become a universal law." IMMANUEL KANT, GRUNDLEGUNG ZUR METAPHYSIK DER SITTEN (1785). English Translation: GROUNDWORK OF THE METAPHYSICS OF MORALS 31 (Mary Gregor trans., 1998).

^[17] But see Mark Gould, Law and Philosophy: Some Consequences for the Law Deriving from the Sociological Reconstruction of Philosophical Theory , 17 Cardozo L.Rev. 1239, 1258 (1996) (criticizing that individuals unguided by moral insights derive their principles only from personal interests).

^[18] See HABERMAS, supra note 4, at 3.

^[19] See HABERMAS, supra note 4, at 296-97.

^[20] Rawls considered it to be clear "that since the differences among the parties are unknown to them, and everyone is equally rational and similarly situated, each is convinced by the same arguments." JOHN RAWLS, A THEORY OF JUSTICE 139 (1971). But see now John Rawls, POLITICAL LIBERALISM 133-72 (1993) (addressing the problem of pluralism with his model of "overlapping consensus").

^[21] See JOHN RAWLS, A THEORY OF JUSTICE 11 (stating that a society has to choose in advance “the principles which are to assign basic rights and duties and to determine the division of social benefits”).

^[22] Neutrality does, however, not mean arbitrariness. As Rosenfeld pointed out, the procedural approach is value-laden insofar as it presupposes a dialogical process that excludes every metaphysical conception of the "good" which rejects the discourse and its processbased outcome per se. See Michel Rosenfeld, Can Rights, Democracy, and Justice be Reconciled Trough Discourse Theory? Reflections on Habermas's Proceduralist Paradigm of Law, 17 Cardozo L.Rev. 791, 811-12 (1996). See also Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.J. 1063, 1067-72 (1980) (emphasizing that even procedural norms have substantive roots).