Hans Albert, prof. emerit. for sociology and philosophy of science, University of Mannheim


The problem of an adequate social order is one of the main concerns of James Buchanan and his theory of constitutional political economy2). Ultimately, this problem seems to be one of a normative nature. And the problem of the conditions of adequacy of such an order seems to be a central question of social philosophy. What I want to show in this paper is how it is possible to come to a rational solution of the problem and how social science can make an important contribution to this solution.

I. Overcoming the classical idea of rationality

The classical idea of rationality which has been dominant in philosophy, in science and in other realms for more than 2000 years has been connected with the idea of sufficient justification. Sufficient justification is to be understood as a procedure which leads to a guarantee of truth for the respective propositions or views, or more generally, for the solutions to the problems involved. This idea can be found in Aristotle, Descartes, Husserl, Dingler and even, after the Second World War, in Lorenzen, Apel and Habermas.

In opposition to the view of classical rationalism, the representatives of scepticism have always made valid objections3), but without success. They have not been able to undermine the classical view, perhaps because they have never presented a convincing alternative. That may be a consequence of the fact that they themselves implicitly accept the classical idea of knowledge, a utopian idea, as it were.

In science this idea has been discredited by the success of both Einstein's theory of relativity and his epistemological views. And in mathematics the antinomies of set theory brought Bertrand Russell to the conclusion that we have to abandon the belief in mathematics as the "last province of certainty". Afterwards, Imre Lakatos introduced fallibilism into mathematics in his famous "Proofs and Refutations"4). And Karl Popper came to the conclusion that the classical idea of knowledge has to be corrected and that the principle of justification has to be replaced by his principle of critical examination in methodology.

Now, because cognitive, even theoretical, assumptions are involved in every solution of practical problems, the revision of the classical view is, of course, valid for all problem areas: from science to politics, morals and even religion or art; in every area where problems arise and have to be solved. But abandoning the classical view does not mean giving up the classical idea of truth or of adequate representation of states of affairs, for consistent fallibilism presupposes this idea. In addition, the critical realism of classical epistemology is, in my opinion, indispensable as a background needed for an adequate methodology of factual science. This methodology is a kind of technology of cognitive practice, aiming at the growth of scientific knowledge. The practice of science is a specific mode of problem-solving behavior, applying methods and criteria which are directed at this aim and which depend on the possibilities of action with respect to this aim.

There are some structural properties, which are characteristic of all problem-solving behavior:

(1) This behavior is, of course, dependent upon the context. In every problem-situation, there is a large number of presuppositions which give structure to the situation. Though any of them may be removed, it is never possible to remove them all at the same time. They constitute the frame of reference for the problem at hand.

(2) It is always possible to dogmatize solutions or components of solutions. Dogmatism is not only possible in cognitive or in religious practice but generally in any social practice. There are many procedures for immunization against criticism, but all of them are obstacles to solving problems.

(3) Any problem-solving activity depends on decisions under conditions of scarcity and uncertainty. Scarcity and uncertainty are general features of the human condition5). All models operating with certainty or even with calculable risks are, at best, usable as approximate solutions for practical situations6).

If we accept fallibilism, which is connected with these properties of the human condition, there can be only some general guidelines for problem-solving behavior: analyse the problem situation at hand and identify the existing problems and proposals for their solution, compare these solutions with respect to their merits and weaknesses in the light of certain performance characteristics or criteria, search for other solutions which are better with respect to these criteria, and select the best of these alternatives.

The criteria involved will depend on the respective problem areas: science, art, politics, economy, law, religion etc. and on the aims to be achieved. But aims and citeria are also subject to criticism and revision.

To contrast the classical and the new idea briefly: The former means to identify the true solution and to show that it is true, the latter to find and compare possible alternatives and to choose the best.

II. The role of values in social science

It seems trivial that any social practice - and therefore the cognitive practice of science - involves valuations and decisions depending on these valuations. This has never been denied by the defenders of the principle of value freedom. They have even explicitly emphasized this fact and tried to dinstinguish the different aspects of the problem of value. That is especially true of Max Weber whose views have been incredibly distorted by many social scientists7). In the discussion about the social sciences, people usually attack an idea of value freedom which is defended by no one, at least by no participant in this discussion.

In spite of the fact that all practices involve valuations and decisions, a value-free science and especially a value-free social science in accordance with Weber's views is possible, that is, a science which does not contain value-judgments within the system of propositions which refer to its objects, within its theories, explanations and descriptions. Such a science is practical and, in my opinion, even useful for analysing the problem of an adequate social order. I shall come back to this problem later.

In everyday life and in some philosophical views which accept the illusions of common sense , it is a customary assumption that there is a special cognition of values and that value-judgments, therefore, are to be interpreted as cognitive statments, as having a truth-value: true or false. This value-platonism has been convincingly criticized. For the interpretation and explanation of human behavior and the valuations and decisions connected with it, it is not necessary to ontologize the standards which are applied by human beings. Therefore, it is not necessary to assume that "values" belong to the structure of reality.

Usually, the value-standards which are used to adopt a positive or negative attitude to certain aspects of reality refer to natural properties which, at least partly, are relevant to the solutions of practical problems. In value-concepts, therefore, a descriptive component is connected with a positive or negative value-accent. Therefore, a rational discussion of value-judgments can usually refer to their descriptive components, as Weber has shown. And he has explicitly stated that criticism does not stop at this kind of judgment. Finally, such a discussion has to go back to the aims and requirements accepted by the people involved.

Also, the ideals or regulative ideas which are dominant in the different realms of human culture - ideals of truth, justice, beauty etc. - can be discussed rationally in this way. The fact that they are human inventions or cultural achievements does not put them beyond discussion. And the fact that value-judgments do not express a special kind of knowledge but only requirements adopted by people with respect to the adequacy of problem solutions does not make them less reputable statements.

Similar things can be said about rules and about the class of rules which are usually described as norms. Just as there is no "realm of values" which has to be characterized as part of reality, there is no "cosmos of norms" which can be grasped by human cognition. Like values and ideals, norms are cultural achievements which play a very important role in social life, even though they are not to be characterized as quasi factual givens, as parts of reality. Their factual validity depends on their efficacy in social life. I have to add only that an ontology which has no use for a "realm of values" and a "cosmos of norms" can, nevertheless, be connected with constant and strong moral and political convictions, which many historical instances prove.

III. Social technology and social practice

For the practical use of scientific knowledge, it may be necessary to form technological propositions or systems of propositions connected with possible aims of actions. An attempt to solve the problem of an adequate social order in a naturalistic framework by means of social-technological propositions was already undertaken by Thomas Hobbes8). The transformation of propositions of social science into propositions of this kind is a purely deductive operation. We need no additional premisses to accomplish it, especially no value-premisses, for the information content of a technological system does not surpass the content of its theoretical basis and a system of this kind has no normative content.

But, as always, if problems are to be solved by logical deduction, it is necessary to have a standpoint to decide which consequences are relevant for the solution of the problem at hand, for one has to make a selection from an infinite class of consequences. This standpoint must result from the practical problem involved, for instance:"How is it possible for a government in a particular situation to maintain stable prices for consumer goods without introducing price controls, and at the same time avoiding other unwanted effects?" or: "Which kind of legislation is required to bring about some kind of social security in a framework of a social order which includes the guarantee of certain kinds of liberty for the individuals?". As can easily be seen, the practical standpoints have been translated here into restrictions on the deduction of consequences.

Therefore, it is important not to mistake a technological system for a normative one, for the relevance of a technological system for the solution of a practical problem is not to be confused with a legitimation to apply the system in practice. A system of this kind does not answer the question:"What should we do?" but only the question "What can we do if we want to solve a practical problem of a certain kind?". It contains no prescription, but only information about possibilities of action. If we use such a system practically, we have to make decisions about ends and means which are not deducible from technology. Even the decisions about means do not follow logically from the technological propositions. To make this possible, we would have to add a premiss which implies that the end sanctifies the means.

Thus, it is easy to see that purely informative systems of propositions without normative content can be used successfully in practice. Decisive for their applicability is only their relevance for the practical problem at hand. It is trivial that for their use in concrete situations, valuations and decisions are required. As far as I can see, no one has denied this, certainly no defender of Weber's principle. We certainly need norms, but we do not need any sort of normative science, not even for practical purposes.

IV. Norms, law and morality: The role of normative regulations in social life

Even if we do not ascribe any cognitive content to normative sentences, we have to admit that social life is, in fact, influenced by normative regulations of different kinds which are partly expressed by normative sentences. In the social sciences, norms are usually analysed as social facts, as cultural achievements, wich are "valid" insofar as they are effective in social processes9). Therefore, the social sciences are interested in the role played by norms in causal relationships because individuals are influenced by them in their behavior; they follow them, try to bypass them, they trust that other people follow or bypass them, etc.

It is obvious that from a social science perspective, normative regulations are analysed as historically variable facts, which have a causal significance for the steering of social processes. In attempting to explain social processes, the social sciences must analyse norms in their causal role for human actions. They have to explain the factual validity of norms, that is the fact that they are effective in social systems, and they must explain other social facts by going back to norms and their factual validity.

Since the factual validity of norms is equivalent to the existence of corresponding institutional arrangements, this means that we can make use of the assumptions of the research programme which goes back to the Scottish Moral Philosophers of the 18th century. This programme has two main components: methodological individualism and theoretical institutionalism. The first of these heuristic maximes advises us to look for the explanation of social facts in the interplay of individual actions in varying circumstances; circumstances in which the scarcity of means for the fulfilment of human wants is an essential aspect of the state of affairs to be analysed, and in which the self-interest of the individuals is of decisive importance for the orientation of these actions. The second of these maximes, theoretical institutionalism, emphasizes the fact that these actions and, therefore, all social processes are canalized by the historically-variable institutional arrangements which function as incentives for them. That is to say, these actions are influenced by rules and norms which have factual validity in social life.

This research programme requires at the same time the search for laws which make the explanation of social processes possible; explanations which take into account the historical variability of the conditions. Thus, this is a quite general conception consisting of a few simple ideas which is not restricted to particular social spheres or to particular historical periods: a general research programme for the social sciences, not restricted, in particular, to the "economic sphere" in the usual sense.

The central concern of this programme has always been the problem of social control or of social steering mechanisms. The first object of inquiry has been the market and its price mechanisms, but now we know that in principle all kinds of control systems can be analysed in this manner. And I think that the development of social science in the last decades has shown two things: (1) that it is necessary to go deeper into the analysis of institutional arrangements of all kinds and to broaden this analysis in order to get adequate models and explanations and (2) that the behavioral assumptions which belong to the core if the programme have to be revised for this purpose.

I cannnot consider in detail the well-known deficits of economic thinking. Its main merit seems to be the fact that it is the only discipline in social science which aims at theoretically-founded explanations in a systematic way and is, therefore, in principle suitable to give results which are practically usable. For, if it is possible to explain social phenomena, then it is possible to influence them rationally to a certain degree.

V. Law and the idea of a rational jurisprudence

We come back now to the question of the practical use of social science, mentioned in the third part of this paper. I mentioned that it may be useful, in achieving this end, to transform the respective set of propositions into a technological system. If we consider the role of normatve regulations in social life and the role they have in explanations of social processes, it is obvious to think of systems of social technology in which norms are treated as means for influencing social processes. In fact, norms are used in this way all the time: in legislation, in the making of constitutions, but also in other social activities which are directed at the establishment and reconstruction of organizations and other social arrangements.

Now, as far as the norms of law are concerned, jurisprudence as the science of law seems to be competent in solving these problems. But if we examine jurisprudence as it is, we get the impression that it conceives of its task in an entirely different way. Of course, it leaves explanations to other disciplines, e.g. to history or sociology of law, because it is based on practical interests. It is normal for lawyers to conceive of jurisprudence as of a normative science, a science which produces normative statements. Since the law is not their own creation - jurisprudence has no competence for law-making - the only way out is the attempt to find norms which have been declared valid by social authorities which possess competence to make such declarations. And since the respective pronouncements in most cases are to be found in certain texts, the main task is the identification and interpretation of these texts with the aim of finding valid norms. Jurisprudence then seems to be a hermeneutic science which produces normative statements expressing valid norms, valid, of course, only in particular space-time-regions.

Prima facie, then, it seems to be the case that lawyers make attempts to grasp a "cosmos of pure norms" which are "valid" in a particular space-time-region. But what would be meant then by "validity"? If "validity" were to be understood as efficacy, this whole undertaking would boil down to a description of social facts and it would be misleading to speak of normative statements and of normative science. The complete formulation of the respective propositions would have to make clear that they describe social facts10).

Like in historiography, the identification and interpretation of sources would lead to the description of facts. And we would ask the lawyer, how far this kind of undertaking would be of any help to his practice. Of course, in fact, lawyers are not usually prepared to understand "validity" in this way. They generally see it as normative, as a claim to general recognition or acknowledgement which is to be distinguished from factual validity in the sense I have mentioned above, but, in spite of this, is in some obscure way dependent on factual conditions.

But the difficulties become even greater if we consider the fact that the existing texts in general leave a certain range open to interpretation and that they even have "holes", so that the idea of the completeness of the legal order seems to be problematic. This idea is, in fact, to be seen as a demand to produce this completeness by corresponding decisions. And judges are required to produce such decisions in any case.

If jurisprudence has the task of helping legal practice with respect to these problems, it cannot be satisfied with the kind of hermeneutic procedure mentioned before. It has to supplement the norms taken from the texts with its own proposals. How this can be done has been a controversial question for a long time. For instance there has been major controversy in Germany resulting from the disagreements between representatives of "Begriffsjurisprudenz" (conceptual jurisprudence) and "Interessenjurisprudenz"(jurisprudence of interests).

To solve these problems, one obviously has to use standpoints which cannot be easiliy taken from the texts. The German lawyer Rudolf von Jhering speaks of a "productive task" of jurisprudence in this context in spite of the fact that it has no competence for creating law11). It is, therefore, not possible for jurisprudence to declare the norms which are proposed for filling the "holes" and completing the legal order to be "valid". Moreover, it would be implausible to treat these norms as "ends in themselves" or as "self-evident", for instance as components of a legal order which is given by nature or by God and to be understood by "intuition".

Normative regulations are usually introduced because of their factual consequences, that is to say the effects on the situation of the members of society which are to be expected from them. Since these regulations have the character of means, it is necessary for a rational argumentation to make explicit two things: (1) which ends they are expected to promote and (2) which effects they have. For, without investigations of this kind, it is not possible to find out how well the expected effects correspond to the ends to be reached and if there might be side-effects which may be incompatible with other ends or values which are presupposed in the analysis. But investigations of this kind require the use of nomological information as provided by the theoretical sciences.

I think I have shown that rational jurisprudence has to be seen as a kind of social technology in the sense of Max Weber and Karl Popper, one which has the task of constructing efficient norms, i.e. norms whose installation are, as far as we know, an effective means to the ends hypothetically presupposed. Part of this task, obviously, can be accomplished by an efficient interpretation of the text of valid law, presupposing the same points of view.

Now, if we conceive of jurisprudence in this way, it is possible to conceive of problems of legislation and the problems of an adequate constitution as part of its task, as well as problems of the development of the legal order. If we come back now to the research programme mentioned above, we see that a theoretical social science of this kind could be the foundation of rational jurisprudence. Thus, constitutional political economics may be part of rational jurisprudence.

VI. The problem of an adequate social order

We come back now to the problem formulated first by Thomas Hobbes more than 300 years ago. As is well-known, to solve this problem in a framework of naturalism, Hobbes made assumptions about human nature and about the human condition, assumptions leading to consequences for social life. In a thought-experiment he divided society into its components, the human individuals, and listed the laws which presumably determine their behavior. Then he tried to derive the social order which is required by these conditions. His fundamental assumptions were: self-interest determines individual behavior and the scarcity of goods is a typical situation, so conflict and competition is to be expected.

His solution is that peace, as a fundamental condition of an ordered social life, can be secured only if a monopoly of violence can be installed, controlled by someone fit for the task. The so-called "natural state" of Hobbes has to be seen as a marginal case which is, at best, approximately realizable, the result of an idealization as one can also be found in natural science. His causal laws have been formulated as hypothetical imperatives which are connected with the fundamental needs of man12).

He was the first thinker to develop a social technology aimed at solving the problem of an adequate social order. The regulative idea leading to this solution is the idea of securing peace. Lately in discussion, the Hobbesian assumptions have been partly called into question and modified, and further points of view or regulative ideas have been developed for the evaluation of the adequacy of social orders. Yet the mode of thinking introduced by Hobbes to solve the problem of the social order has been shown to be useful. The scarcity of means as a central property of the human condition and the emphasis on the role of self-interest for human actions can also be found in consequent conceptions analysing the problem of the social order.

But in the discussion of this problem, the opinion that we need a normative science in the strict meaning of this word, i.e. a science which produces true normative statements expressing special kind of insights or truth, is most prevalent. This may be plausible because an "adequate" order seems to be an order which has to have certain good properties, i.e. properties required to make it acceptable, and that means to make it "valid" in a normative sense, analogous to "validity" in factual knowledge.

But, as may be recalled, I have criticized this view before and, in fact, the problem can be solved without recourse to such a kind of knowledge13). It can be solved in the framework of a social technology which applies the general method stated in the first part of this paper. A solution of this kind is preferable because the use of normative propositions of the above-mentioned kind would produce the impression that science is able to give insights of a normative kind which have the status of knowledge, i.e. it would produce illusions stemming from value-platonism.

I would not dispute the fact that one can discuss the requirements which are to be fulfilled by a social order rationally. But the analysis of the problem of the social order can largely be excluded from the results of such a discussion if one is prepared to transform the normative points of view, the value-positions taken as relevant by the participants of such a discussion, into performance characteristics of the respective social systems14). These performance characteristics are the criteria on which the comparative analysis of alternative social orders can be based. The point is to compare realizable systems of institutional arrangements with regard to their mode of functioning and with regard to the question as to whether they fulfill these criteria. That may be even more plausible because the participants of the discussion presumably use, in part, the same properties in evaluating these systems, but they may weigh them in a different way.

Independent of these differences, the comparative analysis of alternative orders can use all these properties objectively. It can make use of theoretical and historical knowledge to solve the problem of realization - the putting into effect - of the orders to be analysed. It can also show the real incompatibility of some combinations of performance properties. In doing so it can introduce the problem of costs into the debate about an adequate social order. It can, for instance, analyse how much of certain liberties has to be sacrificed to raise equality or safety, etc.

The fact that people do not agree on values, therefore, does not make the scientific - and therefore value-free - analysis of the problem of social order impossible, not even when allowances for the different value-positions of the participants in this debate are made. In my opinion, the procedure proposed here would even make the rational discussion of these value positions themselves easier, for the concentration on real possibilities would show which compromises need to be taken into account at all, a point emphasized by Max Weber.

It would be easier for the individuals to decide for themselves which kind of social order would be acceptable if it is possible to make clear which kind of orders are realizable at all, and how well they fulfil the criteria which are relevant in their opinion.

Maybe unanimous agreement cannot be reached in this way, but James Buchanan's normative individualism is compatible with this kind of analysis. Such a solution of the problem of the social order is, in any case, compatible with the idea of rationality and the methodology of critical rationalism, whose representatives have shown that a solution according to classical rationalism has to be repudiated because it proposes utopian requirements and involves illusions about the character of the problem and about human possibilities.

1) This is a paper I presented at the Center of the Study of Public Choice on 24th September 199o in Fairfax , VA, upon invitation by James Buchanan. I am grateful for many interesting discussions on that and on other occasions. And I am very grateful also to Allison Blizzard for correcting my broken English.

2) Cf. James M. Buchanan, The Limits of Liberty.Between Anarhcy and Leviathan, Chicago/London 1975.

3) Cf. Richard H. Popkin, The History of Scepticism from Erasmus to Spinoza, Berkeley/Los Angeles/London 1979, cf. also Alan Musgrave, Common Sense, Science and Scepticism. A Historical Introduction to the Theory of Knowledge, Cambridge 1993.

4) Cf. Imre Lakatos, Proofs and Refutations. The Logic of Mathematical Discovery, Cambridge 1976.

5) Cf. my book: Traktat ber rationale Praxis, Tbingen 1978, p.25f.

6) Cf. Herbert Simon, Reason in Humans Affairs, Oxford 1983.

7) Cf. for example Herbert Marcuse, Industrialisierung und Kapitalismus,in: Otto Stammer (ed.), Max Weber und die Soziologie heute, Tbingen 1965, S.161-180, and my criticism in: Wissenschaft und Verantwortung. Max Webers Idee rationaler Praxis und die totale Vernunft der politischen Theologie, Mens en Maatschappij, 1970, p. 298-318.

8) Cf. John Watkins, Hobbes's System of Ideas. A Study in the political significance of philosophical theories, sec. ed., London 1973. Later Max Weber and Karl Popper developed a conception of social-technology.

9) That norms are "social facts" is, of course, compatible with the negation of a "cosmos of norms" stated above, for it means only that people are influenced by normative ideas.

10) As Alf Ross has stated in his book: On Law and Justice,London 1958, p.9.

11) For the general conception of Rudolf von Jhering, see his famous book: Der Zweck im Recht, 2 volumes, 6.-8. ed., Leipzig 1923.

12) Cf. Watkins, ibid.

13) As I have tried to show in my book mentioned in footnote 5, above, and in other places.

14) For the concept of a performance characteristic cf. Rutledge Vining, Economics in the United States of America, UNESCO, Paris 1956, p.14f.