Normbildung und Umwelt

Veröffentlichungsreihe der Abteilung

Normbildung und Umwelt

Wissenschaftszentrums Berlin für Sozialforschung

FS II 92-301

THE RESEARCH PROGRAM OF THE SECTION

»NORM-BUILDING AND ENVIRONMENT«

Wolfgang van den Daele

Berlin, April 1992

Science Center Berlin for Social Science Research

Wissenschaftszentram Berlin für Sozialforschung gGmfoH (WZB)

CONTENTS

0. Summary v

1. The Relevance of Norms 1

2. Norm-Building: Between Evolution and Regulation 5

3. The Centrality of Procedures 8

4. Procedural Rationality 12

5. Proceduralization, State Control, and Societal Procedures 19 6 Project: The Mediation of Conflicts in the Planning

and Siting of Waste Management Facilities 25

7. Project: Technology Assessment: Evaluating the Effects of Crops with

Genetically Engineered Resistance to Herbicides 32

8. Project: Concepts of Nature and Criteria of Rationality 41

9. Concluding Remarks 48

Prefatory Note

The following ideas have issued from a series of discussions held in the section

"Norm-Building and Environment” during 1990. Participants in these discussions were Rainer Döbert, Joachim Fietkau, Bernhard Glaeser, Mechtild Lang, Susanne Neubert, Karin Pfingsten and Helmut Weidner. I have made extensive use of the proposals written for the mediation project by Fietkau, Pfingsten and Weidner, and of the work of Döbert on procedural theory. The translation was done by Peter Germain. I thank Mary Kelley-Bibra for her help.

Summary

The research program of our section focusses on the emergence of norms in the context of environmental problems. By "norms" we mean rules and concepts of an obligatory nature: moral and legal imperatives, concepts of value, and definitions of goods. Such rules and concepts both set limits for the permissible effects of human actions on the natural environment and they positive environmental goals to be pur­

sued.

To focus on the origin and development of normative structures represents a somewhat restricted theoretical perspective on environmental problems. It intro­

duces a bias towards cultural sociology and does not approach directly certain important issues that arise in environmental contexts: it does not, for instance, explain actual environmental behavior in terms of vested interests and power, nor does it demonstrate how social structure has led to the environmental crisis and the scope of current environmental policies. On the one hand, this restriction issues from the pragmatic need to formulate a selective research program in which com­

plex questioons can be reduced to manageable proportions. On the other, there are good substantive reasons for such a restriction. The investigation of normative dynamics provides insight into both the explanation of environmental problems and the options for dealing with them. How we act with regard to the natural environ­

ment is conditioned not only by intention and politics, but by world views and values anchored in our culture, and by the limitations and scope for practical action defined by prevailing morality and law. Furthermore, the attempt to control human behavior by normative regulation has been and still is a main strategy for dealing with environmental problems,

The repertoire of normative structures regulating our relationship to the envi­

ronment comprises a broad spectrum of types of norms, to which different contexts for the emergence of norms can be associated. At one end of the spectrum there are the changing requirements of positive law or technical regulatory standards rep­

resenting limited pragmatic reactions to specific problems (e.g., air pollution stan­

dards or guidelines for waste disposal). Such norms have a statutory quality: they are valid because they have been enacted. Basically, they are decisions and they frequently issue from compromises. Functional equivalents for them are conceiv­

able. These norms are deliberately conceived and used as ad hoc instruments of social control and planning. The typical context for their emergence is within the procedures of regulatory state policy.

At the other end of the spectrum are moral demands and values (protection of life, responsibility for future generations). These have categorical validity, mean-

ing that they must be respected under all circumstances. Norms deriving from such demands are, in principle, absolutely binding and cannot be dismissed for pragmatic reasons. They provide a fundamental orientation, for which there are no alterna­

tives. Their validity shifts only as a result of slow processes of change in awareness and values, indicative of cultural conversion. The context for the emergence of these norms is social evolution.

In the context of current environmental problems, one can expect that proce­

dures of positive rule making will predominate in the emergence of relevant norms.

These problems require immediate decisions which are expected to come from the political system as the central agent of control and guidance in modern society. It is true that environmental problems invariably invoke appeals to moral norms and institutionalized values. Such norms and values, however, although they may be undisputed in principle, are generally of little use in making concrete decisions.

Disputes over the conditions under which norms are to be applied, over the impli­

cations of values in concrete cases, and how a balance between conflicting goods can be determined are endemic. Therefore, the decisions to be made often cannot be derived from fundamental moral positions; they demand rales of the statutory type.

Nevertheless, norm-building is not completely confined to the procedures of decision making in state agencies. Nor is the area of positive law the only field of normative innovation in the environmental context. There are counter-trends to both the delegation of responsibility to the state and to the centrality of pragmatic considerations in rule making. On the one hand, decision making is being increas­

ingly linked to social processes of negotiation involving those who are affected by the issues under debate or who have an interest in them. On the other hand, there is a recognizable tendency to charge environmental questions with deeper ethical and, in part, religious values. Such revaluation triggers normative demands that cannot be understood in terms of established value structures, since the revaluation heralds the transformation of that structure.

The goal of our research program is to investigate more closely these counter- trends to state control and pragmatic rule making. Our goal is to examine the emergence of norms arising under the special conditions that obtain in the social processes of negotiation and mediation. Further, we intend to investigate the rise of ethical concepts of nature and to consider the impact of these concepts on norm­

building through rule making. In the first area of investigation two projects will be carried out. The first of these will deal with a procedure for the mediation of con­

flicts over large-scale, environmentally relevant facilities for waste disposal; the

second will involve a technology assessment procedure for the cultivation of geneti­

cally engineered crops.

Mediation is a technique for intervention in conflicts by means of negotiations between conflicting parties under the guidance of a neutral mediator. This proce­

dure provides an arena for the clarification and confrontation of the interests, goals, and definitions of issues of the conflicting parties. Through mediation, the existing scope for action and compromise can be probed and, possibly, expanded. Ideally, the outcome of the procedure would be a consensual resolution of outstanding con­

flicts. The mediation procedure will be initiated by the research group. It will be implemented, however, under the guidance of an external mediator. The research group will, in principle, be confined to participant observation and evaluation of the mediation process. The analysis will focus on individual and institutional condi­

tions (e.g., attitudes, competence, organizational commitment of the participants) that either favor or hinder an agreement. It will record the changes in the definition of issues and in the goals of participants during the course of the mediation process, as well as the sequence and consistency of the participants’ recommendations for problem resolution (planning parameters for the project, environmental goals, etc.).

Further, our interest will be directed towards the normative principles invoked to justify the recommendations. Particular attention will be paid to the question of whether in the context of mediation procedures centered upon concrete issues, uni­

versal normative standards are compromised by the particularistic accomodation of interests. We will attempt to determine whether such accomodation tends to dis­

count the relevancy for the conflict of public interest, legitimate rights, established hierarchies of values and/or standards of justice.

The subject of our project on technology assessment is a procedure for the evaluation of the cultivation of plants that have been genetically engineered for her­

bicide resistance. Analysis of the possible consequences of introducing this tech­

nology presupposes assessment of its environmental impact. This means that debate over environmental norms will play a central role in the procedure. In this case, as in our mediation project, a research group—here in cooperation with the University of Bielefeld and the Technical University of Berlin—will help organize the assess­

ment procedure. The procedure will involve appraisal of the technology by experts from various disciplines, as well as a series of public debates between proponents, critics, experts, and concerned citizens on the nature and method of the technology assessment, the expert opinions, and the possible political consequences to be drawn.

Our project will document and evaluate the negotiations held during the proce­

dure. As the use of the technology to be investigated is characterized by consider-

able cognitive and normative uncertainty (concerning what the effects of its intro­

duction might be, as well as their evaluation), the controversies over the technology can be treated as a laboratory, so to speak, for the investigation of the emergence of norms. The central question is whether, under the conditions of the procedure (discursivity, scientific information), learning processes are unavoidable; that is, whether conflicting definitions of the empirical situation, problem perception, and evaluative propositions are bound to converge.

In the second area of investigation we intend to cany out a project on concepts of nature and criteria for rationality. The subject will be the dissemination of ethi­

cized concepts of nature in modem society and their use in environmental ethics and environmental politics. Concepts of nature are implicit elements of world views.

They not only offer prim a fa c ie plausible cognitive interpretations of reality, they also contain normative ideas about how to deal with nature properly. Our concepts of nature structure our emotional and motivational orientation towards nature. Fre­

quently, ethicized concepts of nature are propounded in reaction to the ecological crises of industrial society. An ethicized concept of nature is one in which nature as such is granted moral status and, accordingly, moral obligations with regard to nature are postulated. These concepts are associated with a fundamental criticism of essential tenets of modem culture: the contingency of nature, the amthropocen- tricity of morality, and the dominance of objective science.

The research project will determine whether the emergence of ethicized con­

cepts of nature is a sign of cultural change, heralding a new relationship between morality and political action. In particular, we will ask whether such concepts of nature reintroduce material elements of rationality (religious certitudes, ideas of substantive value) that will make headway against the more formal, procedural rationality of established policymaking. In addition, the research project will dif­

ferentiate between the various semantics of nature institutionalized in society and assess their combined impact. We will consider concepts that orient and motivate everyday thinking, concepts established as premises of political and legal regula­

tions, and concepts which constitute nature as an object of science. In particular, we will examine whether concepts of nature defined in politics and law can main­

tain their independence both with regard to the scientific definitions of nature and to the ethical or religious concepts of nature that may be of importance for individual, private life. The justification of political goals in public discourse is based upon standards of rationality (’the pluralism of values, the acceptibility of compromise, legitimation by means of procedures) that are opposed to ethical absolutism.

Finally, another question that will be dealt with is whether new forms of public

morality are emerging in which norms are no longer derived from man’s needs alone, but from the "human ecological" unity of man with nature.

1. The Relevance o f Norms

Norms are obligatory rules for the coordination of action. Their existence implies that it is both likely and that it can be expected that they will be followed.

Although norms are related to regularity of behavior, they do not express actual behavior; rather, they specify what actions should be taken. Normative coordination of action must therefore be distinguished from coordination resulting from similar­

ity in factual circumstances, or from coordination through a convergence of inter­

ests or established habits. Coordinations of the latter type are perhaps predictable and can be relied upon, but they are not of an obligatory nature. When they fail, we have to revise our expectations. Normative expectations, in contrast, are to a certain extent immune to non-fulfillment. They are not given up in the face of non- compliance, but counterfactually retained and confirmed through sanctions. Norms require legitimacy; they make claim not only to factual, but also to justifiable, reasonable validity.

Environmental norms comprise all the obligatory social expectations, demands, and "pressures" to which we are subjected in dealing with the surrounding natural world. Such norms are social phenomena. They are elements of social relation­

ships, and not simply a special class of judgments and concepts, or individual dis­

positions to action. The same is true for values and goods that are both constituted by norms and referred to in justifiying norms. They are cultural institutions, not theoretical constructs, nor simply individual preferences. (To conceptualize norms as social phenomena does not answer the theoretical question of how to explain them, that is, whether they are to be understood as the rational choice of individual actors maximizing utility or whether one must take recourse to functional analyses of the necessary conditions for social order.)

The decision to focus a sociological research program dealing with environ­

mental issues on the emergence and development of normative stoctures needs fur­

ther justification. The increasing gravity of environmental problems creates a need for action which leads to comprehensive normative mobilization in modem soci­

eties. The adequacy and justifiability of current attitudes, goals, values, policies and forms of organization have been called into question. This extends from the routines of daily life, to strategies in the economy and in the sciences, to society’s infrastructures (energy, transportation, communication), and to the rational founda­

tions underlying constitutional law.

Many environmental issues have inherent moral implications, for instance, the avoidance of damage to life and health, the justice of the distribution of the

the well-being and survival of future generations. To a certain degree the ecologi­

cal question has replaced the social question as a focus for political mobilization, since the latter has largely been resolved through measures of the welfare state.

Today, existing social structures are challenged not primarily by the exploitation of man, but by the exploitation of nature. The demands for regenerative sources of energy, for the rigorous avoidance of waste, and for ecologically sustainable agri­

culture are much more politically explosive issues than the question, for instance, of expanding worker participation in industry.

The normative dimensions of the environmental crisis are obvious. Neverthe­

less, one may still ask whether a research program that concentrates on the emer­

gence of norms is not missing relevant aspects-that is, dealing with the symptoms rather than the causes of the crisis. The program tends to take a cultural sociology perspective. It postpones somewhat analysis of the underlying structures of interest and power (Jänicke, 1979; Mayr-Tasch, 1985; Prittwitz, 1990). This analysis will, however, be crucial in understanding the deficits of the process of norm-building in policy and law. Furthermore, the causes for the destruction of the environment cannot be seen solely in the lack of adequate norms; institutionalized incentives and the inclination to deviate from norms may be more important.

Actual behavior often consists in the deliberate disregard or avoidance of what is recognized to be necessary and correct. One need only call to mind the pollution of water resources with industrial waste, or the illegal practices employed in the dumping of hazardous wastes. Therefore, any attempt to explain the causes of environmental destruction must necessarily concentrate less upon the inadequacy or lack of norms than upon the interests, incentives, and resources that tempt people to ignore already existing norms. Strategies which attempt to solve environmental problems simply by issuing new norms are not sufficient. This can be seen in the ineffectiveness of environmental criminal law (Meinberg, 1988) or the implementa­

tion problems of technical environmental standards (Mayntz et a l., 1978; Knoepfel and Weidner, 1981). By concentrating one’s research on processes of norm-build­

ing, one may also run the risk of ignoring the structural, social, or organizational conditions (such as processes of differentiation and autonomy in society, mecha­

nisms of social control, and political institutions) responsible both for the rise of enviromeotal problems and for the success or failure of the attempts to control them (Luhrnam, 1986; Jänicke, 1986).

Despite the validity of such arguments the investigation of normative structures nevertheless provides a meaningful approach in various respects to an understanding of environmental issues. Firstly, both the use and the destruction of the environ­

ment are to a considerable degree the result of legitimate behavior, that is, behavior

which complies with existing norms and accepted values. Some obvious examples are: The amount of household refuse depends, for instance, upon the fact that the law permits one-way packaging; the degree of air pollution depends upon the right to use one’s own car. On a deeper level, environmental problems result from the cumulative exercise of individual freedoms guaranteed as institutionalized rights;

environmental problems are a consequence of the fundamentally positive value our culture attaches to economic and technological innovation; further, environmental problems are fostered by a world view or "cosmology" that has neutralized nature morally and reduced it to the level of a resource for m an.

Secondly, the very definition of environmental problems and the corresponding pressure for environmental policies depend upon norms. Environmental changes are transformed from simple facts into problems when they conflict with desirable goals or justified expectations. In many areas this transformation is unambigous and pre­

dictable because contradictions between the facts and normative standards are obvi­

ous. For instance, changes induced in the environment that represent a clear danger to life or health, or entail risks that are arbitrarily distributed, violate fundamental moral norms. In other areas normative standards, and thus the definition of what constitutes a problem, are less evident and in flux. One example of this is the question as to whether the right to safety justifies a demand for the introduction of precautionary measures against hypothetical dangers that might result from changes in the environment (Reich, 1989).

Finally, the creation of norms is an obvious and indispensible strategy for the political handling of environmental problems. Legislation is the central means by which the state attempts to control social processes. Normative controls to influ­

ence environmental behavior have increased markedly in the last two decades.

According to a study by the Association of German Engineers, the number of tech­

nical environmental norms increased in the period 1970 to 1977 alone from 216 to more than 600 (Ropohl e l al. , 1984, p. 23). By 1987, for instance, 280 new guidelines for clean air had been drafted, averaging over 30 new prosals per year in some years (Schwarz and Grefen, 1987, p. 50). Environmental law has become a very dynamic discipline of its own, encompassing a large number of laws, regula­

tions, and administrative rules. And this production of norms has already had a noticeable impact (on the subject of clean air, see Sachverständigenrat für Umwelt­

fragen, 1987, pp. 199ff; Umweltbundesamt, 1989, pp. 227f). Even current criti­

cism of legalistic approaches to policy problems and a tendency towards de-regula­

tion will have little influence on the fact that the responsibility for dealing with environmental problems rests with the state, and that the recourse to new law will

non-normative controls—for example, economic incentives-will come to play a larger role, there will nevertheless continue to be new standards for emission and exposure, new rules for liability, new product regulation, and more.

Norms are not to be confused with interests or motives, or to be identified with the effective control of behavior. They are, however, relevant: By legitimating damaging behavior, they contribute to environmental problems; they determine the definition and perception of existing problems; they trigger demands for environ­

mental policies; and, they are the central instrument for dealing with the problems politically. This provides strong justification for establishing a research program that focusses on processes of norm-building. As for those aspects that we neglect, we trust that, given the division of labor in science, they will be dealt with by others.

2. Norm-Building: Between Evolution and Regulation

Normative structures governing our society’s relationship to the natural environ­

ment cover a broad spectrum of types of norms, to which different contexts for their emergence correspond. At one end of the spectrum we find the detailed pre­

scriptions of positive law and the technical regulations that operationalize such laws—for instance, clean air standards, agricultural restrictions in water protection zones, prerequisites for the use of pesticides, protection of endangered species, guidelines for waste disposal, or the prohibition of certain products. For such norms the following holds:

1. Positive norms are statutes deriving their validity from their having been enacted. They define concrete goals and specific standards for action neces­

sary to translate generally accepted demands—for example, that a climatic catastrophe be prevented, ground water not be contaminated, the erosion of the soil be stopped, or that future generations not be deprived of their right to a decent life—into operational rales of behavior. Such operationalization must be negotiated in detail; it bears many of the elements of decision. One need only think here of the large number of quantitative elements in environmental norms, such as threshold values/emission standards, limits for production quantities, the definition of protected areas, or time schedules for the introduc­

tion of new standards. Such norms are often the result of compromises that might have been made differently and, in the final analysis, must be legiti­

mized by majority vote.

2. Positive, concrete norms are elements of instrumental policies. They are intended to solve environmental problems and, therefore, must be legitimized as problem solutions. In general, we do not feel committed to these norms p e r se, but only insofar as they are the necessary and sufficient means of attaining goals we do feel committed to. Our attitude toward these norms, therefore, is pragmatic. Since environmental problems raise new kinds of questions, the prognosis for the effectiveness of countermeasures is uncertain, and it may become necessary to revise the decisions taken. Functional equivalents for the norms issued are quite conceivable. As one example, economic incentives rather than normative regulation may be relied on.

3. Positive environmental standards are not designed to convey deeper cultural meaning or to answer the basic question of how we should act in order to live

"in peace with nature" (Meyer-Abich, 1984). Even when their scope is as broad as that of the German Federal Air Pollution Control Act

approaches. These may be useful for the time being, but their contribution towards resolution of the "real" problem is circumscribed and they are fre­

quently contested. The need for a fundamentally new relationship to nature and the longing for some sign of conversion cannot be satisfied by the establish­

ment of such standards.

4. The typical context for the emergence of these norms is national state policies.

Statutory environmental norms are intentional instruments of regulatory policy and planning. They result from procedures; that is, they are generated through formal processes designed to produce the decisions required for solving out­

standing problems.

At the other end of the spectrum from normative structures regulating our relation­

ship to the natural environment are substantive moral claims, value concepts, and cultural patterns of meaning—for example, the protection of human life, the preser­

vation of natural resources, the responsibility to future generations, or the avoid­

ance of unnecessary suffering of higher life forms. For such structures the follow­

ing holds:

1. They embody definitions of how one "should" live. They belong to the basic structures of meaning offered by our culture, from which we draw orientation and impulses of existential significance. To be understandable and at all acceptable, actions must be compatible at least with these precepts.

2. Their claim to validity is categorical: in principle, there are no alternatives to them. While compromise may be unavoidable when they conflict with one another, or when a balance must be found between goods of the same rank, in general these norms invoke values that outrank all other interests.

3. In essence they are not at our disposal. They cannot be the subject of negotia­

tion in procedures that generate norms; rather, they serve as limiting normative conditions for such procedures, defining constraints for pragmatic, statutory rule making.

4. The context for the emergence of such norms is sociocultural evolution. They are gradually shifted in the course of long-term processes of change in aware­

ness and values, and not easily reformulated by decision. Such shifts bear the marks of cultural conversion.

Between statutory norms and basic cultural commitments there are other kinds of norms. There are, for example, group-specific standards for environmental behav­

ior (such as the principles propagated by ecological movements or to be found in religious concepts of nature). There are also social expectations that determine stan­

dards for reasonable environmental behavior, but which have not yet been incorpo­

rated into statutes or become strong moral commitments—for instance, that one use

detergents without phosphates or buy lead-free gas, or that one not purchase sprays containing chloro-fluoro-carbons, or that one not litter. Such expectations involve the personal dimension of environmental problems, representing the contribution an individual can make. They embody a kind of everyday code of decent environ­

mental behavior, which has limited validity but which can become the point of departure for binding statutes or can be upgraded into more generalized and stricter moral demands.

In modem industrial societies, all the regulations guiding environmental behav­

ior are to be seen against the background of a normative structure that categorically separates man from nature. Since the beginning of the modem age, the human relationship to nature has become increasingly divorced from moral questions.

Only human beings have a claim to moral status; individual rights and freedoms have acquired supreme value. Culturally, this development was furthered by the acceptance of the principles of rationalism and enlightenment. In terms of social structure, the development is rooted in the division of labor and the increasing functional differentiation which established the economy and science as autonomous systems. In normative terms, this development is anchored by means of the con­

stitutional guarantees of fundamental individual rights. The result is that nature has become, as it were, norm-free; it is defined as a resource and considered to be a freely available good (see section 8, below). Given this background, it is not the effects of our actions on the environment and the exploitation of natural resources that need legitimization, but rather the limits placed on that intervention and exploitation. The norms regulating our relationship to the natural environment amount to limitations on basic freedoms and, as such, must be legitimized-by ref­

erence to the guarantee of equal freedom for everyone, or to other eminent public goods.

3. The Centrality o f Procedures

It seems to be a matter of one’s chosen discipline whether, in analyzing the emer­

gence of norms, one focusses on sociocultural processes of evolution or on orderly procedures of decision making. From the perspective of the legal and political sci­

ences, the regulatory aspect of norms is emphasized and the prototype of the mod­

em norm is found in positive statutes. From the perspective of sociology, the unplanned and unplannable process of the self-organization of culture is empha­

sized, and the explicit procedures of rule making in politics and the law is seen as a rationalistic island in the sea of diffuse social emergence of norms.

We proceed from the assumption that there are good reasons why statutory rules must be the dominant form for norms in the environmental area. We do not mean by this that the validity of these norms depends completely upon statutory decisions, but that norms must, so to speak, pass through the form of statutes.

Consequently, procedures of rule making become the most important context for the emergence of new norms. This assumption requires explanation.

Although the environmental policies of the early 1970s prove that legal regula­

tion can indeed produce value changes in society and become the driving force behind such changes, the normal course is the other way around. The embodiment of norms in statutes usually presupposes recognition of corresponding value judg­

ments in society. Statutory form does not mean, therefore, that the content of the norms is at the disposal of the rule maker and that positivism in the sense of politi­

cal decisionism prevails ("what has been decided is what is valid"). The validity of norms is not formal in the sense of its being exempt from the material conditions of appropriateness anchored in the underlying social values, and the ideas of justice and fairness held by those the norms address. The content of norms is often only confirmed by statutes, not created by them. The prime example of this can be seen in criminal law, insofar as it codifies the moral rules acknowledged in our society.

But even in other areas the values of society determine the content of statutes rather than the reverse. What Simmel has called the "individualization" of legal relation­

ships is a process of "materialization" resulting from a consideration of what would be just under the specific circumstances of a concrete case. Weber predicted that, with the passage to a mass democracy, the formalism of the law would give way more and more to everyday material value concepts, since the political parties would carry such demands into the legal system.

Attempts to modify well-established societal values by means of statutes are problematic. The social acceptance of such norms is precarious. One example of this is speed limits: they become virtually unforceable when they run contrary to

nearly everyone’s sense of legal justice, including that of policemen. A more seri­

ous example of this problem is illustrated by the failure of the German Legislature’s attempt in divorce law to separate the provision of support from the question of guilt. This attempt went too far for the judges and the parties involved, and was, as a result, obstructed in the courts. A similar case can be seen in the decision of the US Supreme Court to grant a time-limited right to abortion based upon the right to privacy. This decision implied a revision of traditional, fundamental values. It did not enjoy sufficient support in the society at large and has thus led to chronic polarization. Statutes may have a better chance of creating new values in society when they touch areas that have not been highly politicized and can develop, so to speak, in the lee of expert discussions. For example, welfare regulations—at the outset, just one among a number of possible solutions-have finally come to be understood as necessary, morally obligatory forms of social solidarity. In the area of environment, legal regulations have begun to emerge that cautiously restrict indi­

vidual freedoms and grant damage compensation for ecological losses (e.g., for the extinction of species, or the destruction of the countryside). In time, these regula­

tions could have the synergistic effect of demonstrating the necessity (and opera­

tional feasibility) of defining the "integrity of nature" as a legal good, which in turn may generate a new social awareness of ecological values.

In general, statutes are usually a response to the development of values in soci­

ety, rather than the driving force behind it. Moral principles, convictions of legiti­

macy, definitions of value, as well as social expectations, needs, claims, and inter­

ests which emerge through social evolution rather than through political regulation are the normative raw material, so to speak, and are prior to rule making by means of formal procedures. One could say that what is decided upon is what is already valid. Nevertheless, this raw material must usually be processed through formal procedures in order to become truly binding. There are various reasons for this.

They include the general problem of establishing and coordinating behavioral expectations in a differentiated society, and special problems arising out of the cog­

nitive and normative uncertainty surrounding environmental problems.

Value orientations in complex societies diverge. There is a minimal stock of common moral demands and definitions relating mainly to the value of human life and individual rights. But beyond this one must reckon with competing orientations dependent upon differing concerns, interests, professional outlook, and contexts of action. So long as only prevention of an evident collapse of the ecological basis of life is at stake, society will reach a consensus on its own. This is not necessarily the case, however, when less crucial environmental issues are at stake—for instance,

the purification of rivers to the standard of drinking water, or the degree to which organic farming should be subsidized.

The pluralism of competing value orientations in society has two conse­

quences. One of them is private freedom. People have the right to pursue their own interests, but they cannot expect others to adopt these as well. Pluralism means that everyone must live with the fact that the normative choices one holds to be absolute or the moral commandments one accepts categorically may be seen by others as personal preferences or mere expressions of private interest-that is, as possible, but by no means necessary, options. The other consequence is that the responsibility for coordination of normative goals and action shifts to the political arena and the legal system. The urgency of environmental problems does not allow us to wait for the evolution of new value orientations and self-organization in soci­

ety.

Normative orientations must go through the procedures of politics and law in order to ensure their effectiveness. Environmental morality as such is too weak an instrument to guide behavior. It may be effective insofar as the association between one’s own behavior and environmental damage is uniquivocal-for instance, the rule that one should not dispose of used oil by draining it into public sewers or dumping it in the open countryside could become an effective standard for behavior (with the usual rate of deviance) without legal sanction. But appeals to morality become more precarious when problems can only be solved by collective changes of behavior-that is, when the contribution of each individual is negligible. In such cases the willingness to comply with moral rules declines, since one would be offering a special sacrifice of questionable effectiveness. The moral insight that it is necessary to reduce car driving, for instance, in order to protect the environment is not enough. Behavioral change on a larger scale can only be expected when the norm has been made legally binding, which means that everyone cam be certain that others are going to change their behavior, too. There is a second reason why morality is too weak an instrument for guiding behavior in modem societies. The fact that many important moral precepts have been transformed into legal rules tends in general to discourge recourse to morality. Beyond face-to-face interaction, in which deviance may be sanctioned by the withdrawal of affection or approval, one may easily and legitimately appeal to personal freedom, claiming that whatever is not forbidden is allowed (see Luhmann, 1978).

Finally, recourse to formal procedures of rule making is imperative because of the particular complexity of environmental problems. Who is to bear responsibility for the consequences of actions if these consequences are not altogether clear or if they cannot be foreseen at all? How are conflicting values, rights, and interests to

be balanced? How are limited resources to be distributed to solve various out­

standing problems? The answers to such questions are not to be found in the nor­

mative expectations crystallized in our society.

Moral values and principles invoked by all sides in conflicts over environmen­

tal behavior are frequently as uncontested as they are inconclusive for concrete deci­

sions. Although one finds few serious proponents of "Apres nous, le deluge", many individuals will still deny that activities such as the production of plastic waste, the use of nuclear energy, or the methods of modern fishing are tantamount to holding this position. There is often no conflict over moral norms themselves, but rather over the conditions of their application—for example, over what the actual consequences of problematic actions might be. In favorable cases, this con­

flict can be resolved empirically. However, as soon as this is no longer possible, because the knowledge one must have to make a decision is too complex, the con­

flict shifts to the meta-level, where one must deal with uncertainty. On this level, moral insistence is of little use. The debate is not about substantial moral issues such as whether it is permissible to increase our own prosperity at the cost of future generations; rather, we are compelled to decide upon the formal issues of what we should do when the consequences of our actions cannot be foreseen, that is, when imperceptible, long-term damage cannot be excluded and when hypothetical risks must be taken into consideration. Conflicting answers to these questions are indeed possible (Jonas, 1979; Wildavsky, 1988), and they must be resolved politically.

The same holds when value conflicts over goods arise. The hierarchy of goods in our society is often as unambiguous as the definition of those goods. For instance, that life is more important than property is clear. Where the hierarchy is ill-defined, however (for example, public safety versus individual freedom), a political determination of norms is not just possible, but necessary. Furthermore, even where the concrete goal of some action is morally uncontested (for instance, to decontaminate kindergardens contaminated with asbestos), normative questions arise that cannot be resolved by appeal to moral precepts: What priority should be given to the goal, and what part of the (limited) resources available should be devoted to achieving it?

4. Procedural Rationality

Norms can crystallize in society during the course of an evolutionary change in values, or they can be deliberately and explicitly created through formal procedure.

Nevertheless, normative results of evolutionary change must also be filtered through procedures in order to become relevant as guides for action. For this reason, our research program focusses largely on the emergence of norms through formal pro­

cedures. We have selected two general areas of investigation. In the first area we will investigate the processes of negotiation, mediation, and decision making in social settings, prior to state regulation proper. Here we will analyse two specific procedures: a mediation process designed to resolve conflicts over a project for waste disposal, and a technology assessment procedure in which questions of envi­

ronmental impact are crucial. The second area of investigation will deal with the tendency to ethicize nature and the way in which ethicized concepts of nature are processed in the political and the legal system.

The common theoretical interest of these projects is the question of procedural rationality. Procedural rationality refers to a set of rules or "grammar" inherent in social processes, favoring the emergence of appropriate results. This means that procedures can be conceptualized as learning processes. Results are to be under­

stood as appropriate when they are materially correct and socially acceptable. A more detailed explication of procedural rationality is part of the project. Here, a preliminary exposition must suffice.

We will concentrate on socially circumscribed, real procedures (e.g., the con­

flict of parties before a court of law and the court’s deliberation), and not, for instance, on the theoretical discussions of legal and ethical issues in professional circles. Real procedures are social interactions in which the interested parties bring into play their selective concerns, interests, agreements and disagreements. They have a dual function: they coordinate actions (the social dimension), and they serve to select decisions and problem solutions (the material dimension). Thus, proce­

dures for conflict resolution are intended to bring about peace or at least the forgo­

ing of further conflict; they are further intended to lead to a solution for the dis­

puted problem, that is, for the subject matter of the conflict. The point of departure for our reflections on the rationality of procedures is the relation between the social and the material dimension (cf. Döbert, 1991, on what follows below.)

Conflict over goals and factual controversies invariably draw our attention to decisionistic remnants in our perceptions of reality, definitions of problems, and evaluation of alternative courses of action. In view of these decisionistic remnants, it would seem that concepts of procedural rationality can only define the appropri-

ateness of results in terms of the the social dimension of the procedure. Since sci­

entific analysis, as well as legal and ethical argumentation, do not decide the issue unequivocally, the result must be determined by discourse, that is, by means of negotiation and agreement among those representing different convictions and inter­

ests. Procedural results would then be based essentially on participation and con­

sensus. Procedural rationality would be reduced to "communicative rationality"

(Eder, 1986, drawing on Habermas). The result must be constituted in the dis­

course as such: "Correct" is what has been agreed upon.

This approach emphasizes the pragmatic dimensions of communication and tends to play down the semantic dimension, that is, the structures implied in the subject matter itself. It should be noted at the outset that in contrast to this orienta­

tion is the idea that one essential accomplishment of procedures is that they give semantic structures their due. Here the constraints that arise out of the very "nature of the matter" enforce mutual understanding. This is the case not only for the empirical aspect of the problems, but also for their normative assessment, and for the design of the procedure itself.

The resolution of a conflict presupposes agreement about what is actually the case. Divergent perceptions must be accomodated and controversial empirical assumptions clarified. Can a given action lead to a particular effect? What is the cause of an observed damage? What is technically feasible? What are the alterna­

tives? If the procedure yields agreement about such questions, the validity of that agreement is based upon knowledge and not upon the fact that opinions might con­

cur. What is recognized to be false cannot be saved by consensus. The resources of understanding concerning empirical issues are external inputs into the social pro­

cess: They lie in the matter under consideration.

This holds even if one advocates a consensus theory of truth, according to which the ultimate foundation of knowledge is not "adequati® rei e t intellectus”

(representation of reality), but social agreement. Objectivity, truth, causality, and the differentiation between the empirical and the normative are schemata of order or institutions rooted in our culture. One cannot free oneself from their validity through the philosophical insight that one is dealing in essence with social construc­

tions or conventions. Even if, in the final analysis, all knowledge were, in fact, based on social consensus, in concrete procedures such a consensus is never some­

thing one has at one’s disposal: it is the precondition for and not the subject of the conflict. One cannot argue against specific results of science by referring to cul­

tural relativism in general. Anyone who would seriously claim that empirical knowledge is invalidated by the simple fact that consensus is lacking would be

tions about which we have no knowledge. But whether this objection is justified is also a question of knowledge, not just consensus. In general, one must rely in such cases on the technical judgment of experts who not only define what is known, but also what is not and cannot be known in a specific field.

Nonnative conflicts are materially structured by reference to the moral values, legal goods, norms, and demands in concrete cases. Frequently, reference to these things leads to no clear solution. Many of them are limiting conditions of the dis­

course issuing from the very subject matter of the conflict; they are not constituted by the communication that emerges during the procedure. If a technology has been shown to endanger health, this has inevitable normative implications, creating bur­

dens of proof, forcing moral and legal judgments, etc. Moral principles, defini­

tions of legal goods and their respective rank in value (e.g., the preeminence of protection of life over general freedom of action) are social givens.

Basically, it is not to be expected that the normative positions negotiated in procedures will be dissociated from these givens and operate, for example, indepen­

dently of legal notions of freedom and justice (but see Eder, 1987, p. 215). There is no reason why norms agreed upon by participants "in the situation" should not be subjected to normative meta-criticism in light of more general principles. For example, one can always examine the agreement with respect to whether it has been reached at the cost of third parties. This requires, of course, that there be social

"courts of appeal" in which the results of the procedure can be evaluated. The public or science serves as such courts of appeal. Furthermore, there is ample evi­

dence that participants in procedures often refer to basic material claims and rights as indisputable givens. This is especially true where procedures were employed to negotiate conflicts involving clear differences in positions of power (e.g., citizen versus government). Participation in administrative procedures is considered to be a form of anticipatory protection of individual rights (Grimm, 1988). They do not, however, replace material, legal rights by participation. Those who have been heard in the procedure can still challenge the decision finally taken by invoking, for instance, their fundamental rights to life and health.

Thus, in normative conflicts as well, procedural rationality entails to a considerable degree the mobilization of material arguments whose validity is already established in society, rather than constituting that validity by agreement in the particular case at hand. Such material arguments also set the parameters or limiting conditions for the formal structure of the procedure itself. The choice of how to proceed is not completely open to negotiation within the procedure.

Whether a question can be decided upon by vote depends on the subject matter of the question and not upon a vote by the participants. If one wants to know whether

a product is poisonous, one must obtain information; one cannot count votes instead. On the other hand, the counting of votes may be appropriate or even necessary when one must decide how much time and money are to be invested in obtaining information, or how one is to proceed in the case of irresolvable cognitive uncertainties or when the experts disagree. Procedures are not autonomous with respect to how they ran. This is also true of the participants’ rights in the proce­

dure and their relationships to one another. If the procedure were completely autonomous it would be meaningless to consider defending minority rights against majorities. In reality, the rights of participants within the procedure are largely a consequence of rales beyond the disposition of the procedure. In formal procedures where doubts do exist, the rules of order of the German Bundestag are frequently referred to.

Emphasis on the substantive dimension of procedures elucidates the degree to which reasons, rules, distinctions, or semantics structuring the procedure are not created within the procedures themselves, but follow from the issues under consid­

eration. Understanding that emerges in the course of procedures is founded on pre­

existent understanding in the cultural environment of the procedure. However, if this were the whole story, there would be no need at all for social procedures, since these could be largely replaced with analyses "cultural" experts give of the existing reasons, rules, or semantics. But the social dimension is indispensible for securing the rationality of procedural results. Two aspects must be mentioned here: (1) It is the social constellation as such which guarantees full mobilisation of the implicit material aspects of the issue. And it is the social constellation which "translates"

the pertinent cultural repertoire of rules, reasons, etc. into effective social prin­

ciples. (2) Even in extended procedures, understanding based upon material grounds cannot always be reached. Many decisions must be made that can only be justified by participation and consensus.

Discursive interaction between participants with different positions and inter­

ests increases the awareness of the multiple material aspects of the issue. It expands the semantic field of conditions, consequences, and evaluations in which problems are defined and alternative courses of action are discussed. This Interaction can reveal onesidedness, errors, contradictions, and lack of rational justification in one’s own position-aspects which the participant can successfully ignore only so long as they remain latent. Participation in a discursive procedure tends to under­

mine the effectiveness of defense mechanisms one uses to hide aspects of reality that run contrary to one’s own interests and which allow one to "forget" systemati­

cally the rights of competing value judgments. Within the procedure, selectivity

positions of the participants. Positions are no longer the personal property, so to speak, of individual participants, but belong to the procedure, where they are increasingly objectified cognitively and relativized normatively.

Discursive procedures intellectualize the motives and interests of the partici­

pants, not only by interrupting cognitive "short circuits" between aims and reasons given for them through criticism and differentiated argumentation, but also by con­

trolling the affective power of motives and interests. Moral insistence (beyond gen­

erally accepted principles) and existential concerns tend to be reduced to private matters in the confrontation with opposing positions. To operate successfully in the procedure participants must adopt, at least theoretically, the perspectives of the other participants, and compare arguments for and against the various positions.

They become, therefore, not only advocates, but also observers of their own posi­

tions.

Simmel labelled intellectuality a principle of "characterlessness", because "it resides beyond the selective onesidedness that makes up character" (Simmel, 1989, p. 585). For this very reason, however, intellectuality also represents a principle of reconciliation, "because once the shifts from the antagonism between ... unprovable or only emotionally acknowledgeable axioms, to the level of theoretical discussion, it must in principle be capable of being resolved." (Ibid., p. 598; cf, Döbert, 1992). The discursive procedure reinforces such "healing characterlessness". Fun­

damentalisms are reduced to the status of mere interests vis-ä-vis other interests against which they must be weighed and balanced. Deeply held claims based upon religious conviction, personal morality, or existential fears are given no more weight than ordinary individual or group interests. Nobody can expect others to adopt them as absolute standards. This is the burden of pluralism in modem, com­

plex societies: absolute standards for what constitutes "the good life" are individu­

alized and privatized. The presumption of a pluralism of values is built into sys­

tems of negotiation, political discourse, or mediation procedures as a meta-norm.

Fundamentalist convictions become melted down, as it were. Even if they remain effective as motivations, they cannot become the subject matter of the procedure.

Within a procedure, it is difficult to escape the undertow of decentration and mtellectualization, because it issues from the rules to which everyone is subjected once he has accepted participation: one must listen to different standpoints, accept empirical evidence in questions of fact, try to obtain comprehensive information, recognize the legitimacy of other interests, and give reasons for value judgments.

One cannot evade these rules without running the risk of being considered deviant or being expelled from the procedure. Certainly in principle one can abandon the procedure as soon as one’s interests are affected, but this is not always possible

without loss of face. Actually, one is not free to choose not to participate or to abandon a procedure without being sanctioned.

We expect to be able to reconstruct the relevant learning processes in discur­

sive procedures in terms of decentration and intellectoalization. The project will investigate such processes in the respective "procedural histories", and will deter­

mine the mechanisms, conditions, and extent of learning that occurs. One of the research questions raised is: Who (or what) is the actual subject of the learning process-the participants or the procedure itself?

From the perspective of an external observer, it is conceivable that while procedures do indeed clarify facts and value relationships, and correct mistaken or one-sided premisses, they may leave the participants unimpressed, sticking to their initial positions. To a certain extent, this can be expected insofar as participants act as representatives for groups or organizations. Loyalties external to the procedure can force participants to revert to perceptions, problem definitions, and evaluations that have been corrected or relativized through the procedure. But this only draws attention to the complexity of social learning in differentiated contexts of interac­

tion. Within the procedure participants are likely to learn because they become involved in the procedural dynamics. They concentrate and act upon details with­

out knowing what the result as a whole will be. Do initially important premisses turn out to be false or irrelevant? Are assumed conflicts the real issues? Is some­

thing else at issue? Do the interests one had upon entering the procedure really matter? Does one discover new, "true" interests? No one has strategic control over the dynamics of the procedure as a whole. One must expose oneself to the history and self-organization of the procedure. One has become engaged in a collective game in which one must reckon with the possibility of being confronted with the suprising consequences of one’s own moves.

The social dimension of the procedure tempers dogmatic positions, reducing them to personal convictions and interests. This results from the interaction of the participants, not from their insights into the "substantive matter". The social pro­

cess encourges mutual understanding. Such encouragement can be regarded as a learning process and as an element of procedural rationality insofar as consensus becomes the decisive criterium for the adaquacy of problem solving. The latter holds especially in those situations in which we lack sufficient material reasons to justify a particular decision-situations that are inevitable in many discourses.

The empirical clarification of a problem may get lost in a jungle of expert controversies. Should one then invest in further analyses or should one make one’s peace with the uncertainty? Who will bear the burden of the uncertainty? The

rules and values. Facts seldom suffice to reconcile differences of opinion. How are rights and generally accepted legal goods to be balanced in a given case?

Finally, conflicts of interest usually do not disappear in the course of a procedure;

they are only reformulated. They, too, must be reconciled on the basis of grounds other than material ones. Traditionally, we have meta-rales for dealing with uncertainty, ambivalence and conflict.. These include assignment of the burden of proof, presumption of freedom (in dubio pro libsriate), and definition of a mandate for making binding decisions. But the sense of legitimacy attached to these meta­

rules has declined dramatically in our society. In the the area of environment, it is precisely the established principles of balancing risks, evaluating benefits, and pro­

viding participation in decisions that are at the core of the conflict. Recourse to social procedures of conflict resolution can be taken as an indication of the extent to which such meta-rules have become negotiable and, indeed, require negotiation in our society (see below). The result is that the orientational value of these rules is lost: they have become as much the subjects of the procedure as they are the resources for it.

If solutions to a problem cannot be derived from material grounds, they must be justified by the procedure itself (the social dimension). In extreme cases proce­

dural rules replace material grounds. Rawls speaks here of "pure" procedures.

Where there is no independent criterium for the correctness of a solution, whatever comes out of the procedure is considered correct. Roiling dice or voting are examples of pure procedures (Rawls, 1971, section 14; cf. Döbert, 1991). It is, of course, unlikely that one would "roll dice" in negotiating environmental conflicts.

The social constellation of the procedure as a system of negotiation operates, by definition, on the assumption of the equal rights of the participants. Such a social constellation suggests, therefore, that voting can be used as the basis for decisions.

The assumption of correctness can be made legitimately for results the participants have agreed upon for substantive reasons, or, for the results of a vote, after partici­

pants have agreed to vote because material grounds are inconclusive.

Procedural rationality includes modes of justification that can be interchanged during the course of the procedure. The greater the material ambiguity, the more the result must be grounded socially, i.e., through participation. In short, where truth or morality do not suffice, democracy takes over. In fact, however, partici­

patory rights do overlap with results that would be sufficiently justified by facts alone. Lack of democracy is always a valid objection. It is only through participa­

tion that factually correct decisions become socially correct. The dynamics of participatory rights in various procedures will be one of the focuses of the research projects planned.

5. Proceduralization, State Control and Societal Procedures

Our research program will investigate in detail the performance of procedures in two cases: the mediation of a conflict over the planning of a large-scale technical project and the technology assessment of genetic engineering applied to agriculture.

The procedures chosen are of current political and theoretic importance.

Politically, opposition to large-scale, technical projects (power stations, air­

ports, waste incineration plants) has become a central source of conflict in our soci­

ety. A continual complaint of government agencies has been that the development of new industry and infrastructure is often impeded. They have, therefore, taken refuge to mediation procedures to forestall such blockages. Technology assessment operates at the forefield of these conflicts. It is designed to contribute to a more rational relationship to new technology, and to widen the control of society over the dynamics of technology. Although technology assessment may be fraught with diverse or even contradictory expectations, depending upon the interests of the con­

flicting parties, it has become established as a minimum political precondition for the introduction of new technologies.

From a theoretical perspective, the procedures we will investigate illustrate a shift from governmental decision making and policy formation to societal systems of negotiation. They are examples of the relative withdrawal of the state (and the legal system) from the control of social processes. Often it is this withdrawal which is referred to as "proceduralization". In a more general sense, one can speak of proceduralization when problems for which no fixed solution exists are delegated to procedures. The procedures then operate under constraints following from the orientation towards solution of existing problems, but they are not determined by this goal. As one example, we need only think of those procedures that determine what is lawful in a given situation, as opposed to procedures that merely state what the existing law is. Procedures for working out new solutions are a routine part of the parliamentary legislative process; they are also employed by government agen­

cies in the planning stages of new projects to determine concretely the meaning of the tasks assigned them by law. Since such procedures are not new phenomena, it is not of particular interest to use the concept of proceduralization when referring to them—the same holds for those procedural and organizational measures normally taken to put material regulations into effect (see Teubner, 1989, pp. 831).

What is new, however, are systems of negotiation that leave the domain of state agencies, and transfer rule making and control of rule implementation to the societal environment of these agencies. One could say that such systems procedu-