Agreeing what’s right
- Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats by Jürgen Habermas
Suhrkamp, 667 pp, October 1992, ISBN 3 518 58127 9
On 9 November last year, the anniversary of Kristallnacht, the philosopher Manfred Frank was invited to give the principal address at the memorial service which is held annually in the Paulskirche in Frankfurt. The Paulskirche was the home of the first democratically elected German national assembly, which flourished briefly amidst the revolutions of 1848-9, and, in keeping with this setting, Frank refused to limit himself to a ‘retrospective ritual of mourning’. Rather, he used the occasion to consider contemporary events in Germany, in particular the rise of a violently xenophobic right-wing element, whose activities claimed 17 lives in 1992, and the reaction of the established political parties to it. Central to this reaction has been the attempt to limit the right of political asylum enshrined in Article 16 of the Grundgesetz, the German constitution. The provisional agreement reached between the main political parties on 6 December 1992 foresees abolishing this right for applicants arriving from an EC country or from any ‘safe third country’ deemed to have satisfactory asylum procedures of its own. Since Poland and the Czech Republic fall into this category, these measures will effectively cut off the flow of applicants, the vast majority of whom reach Germany by land.
Frank suggested that in Germany an ethnic rather than political definition of the nation, and an excessive concern with national unity and security, had repeatedly overridden the protection of individual freedoms, and had hindered the development of an appropriate conception of democracy: ‘The predominant conception of the essence of democracy is expressed in the demand that politics should bow to pressure from the streets.’ To illustrate this he quoted leading protagonists in the current Asyldebatte from both the Right and the Left. He then reached for a shocking comparison: ‘Goebbels’s populism invented a fitting jingle for what happens when one adapts to the unqualified feelings of the populace: “Our thinking was simple, because the people are simple. Our thinking was primitive, because the people are primitive.” ’ At this point many members of the audience, including the entire Christian Democrat contingent, walked out. Subsequently, all the parties in the Frankfurt Parliament (including the Greens) repudiated the speaker, and the furore occupied the local press for a fortnight afterwards.
These events illustrate the drawback of one possible interpretation of Faktizität und Geltung, Jürgen Habermas’s new book on the philosophy of law and the theory of the constitutional state. Under the headline ‘Jürgen Habermas makes peace with the constitutional state’, a pre-publication review in Der Spiegel sought to present the book as an old leftist’s recantation in response to the collapse of Communism, and his belated return to the fold of liberal democracy. But one of the deepest motivations of Habermas’s work has been an anxiety that the institutions and practices of the modern democratic state may not be sufficiently firmly anchored in the traditions of German thought and politics. He is convinced that the emancipatory potential of such a state needs to be defended against the powerful current in German philosophy and culture which views democratic ideals as – at best – helpless before, and – at worst – a positive symptom of, the spiritual desolation of modernity. It is not surprising, therefore, that Habermas should have sprung to Frank’s defence. In a highly combative article in Die Zeit he denounced the German government’s increasing tendency to contemplate altering, or simply bypassing, the constitution, for the sake of Germany’s self-assertion as a ‘normal’ nation-state. This ‘D-Mark patriotism’ is, in Habermas’s view, an attempt to compensate for the ‘normative deficits’ of a bungled reunification process, with its disastrous social consequences, particularly in the East. He repeated the argument he has made before: instead of what amounted to an administrative incorporation, through provisions contained in the Grundgesetz of the old Bundesrepublik, the reunited Germany should have had the opportunity to conclude a new ‘social contract’ in the form of a new constitution.
Faktizität und Geltung (‘Facticity and Validity’) provides the philosophical background to these political arguments. The book’s title indicates the main direction in which Habermas’s thinking has moved in the last decade, since he began to work more intensively on a universalist foundation of morality in the tradition of Kant. Ever since the Sixties, he has contended that human communication is necessarily framed by ‘relations of recognition’ between language-users, and that such recognition always involves, implicitly at least, commitment to a search for consensus. Naturally, Habermas does not deny that it is always possible for individuals to use language ‘strategically’, in order to mislead, intimidate or exclude others. But even in this case the expectation that communication will convey verifiable truths and justifiable imperatives is being obliquely exploited. The requirement that speakers provide grounds for their claims and assertions, when these do not initially appear convincing, is ultimately not culturally determined, but is built into the necessary conditions of communication, and provides the basis for a conception of the rightness of moral norms. Such norms are objectively ‘right’ when they result from a consensus attained through free and equal discussion by all concerned in the light of their respective interests (this is the principle of what has come to be known as ‘discourse ethics’).
Since he began to formulate this approach in the Seventies, Habermas has often been accused, from various directions, of confusing a principle of political democracy with one of morality. It has been argued, by his colleague Albrecht Wellmer, for example, that moral convictions are anchored in the personality at a level which stops them from being readily altered, even in the light of discussion, whereas collectively agreed norms, though the obligation to obey them may have a ‘weak’ moral force, can change in the light of shifting opinions or circumstances. In Kantian terms, immoral actions are those which, as rational agents, we cannot even coherently will, let alone fail to agree on. It has also been argued (by feminist critics inspired by Carol Gilligan’s In a Different Voice) that moral awareness involves an attentiveness to individuals in their uniqueness, and a concern with the sustaining of personal relationships, which are not susceptible to universal regulation. The conclusion of both these lines of argument is often that Habermas, when sympathetically interpreted, has failed to capture philosophically our core sense of morality, while offering a compelling basis for the regulation of public issues through discussion and collective decision-making.
In Faktizität und Geltung Habermas takes the major step of accepting, at least in a qualified form, the force of this criticism. He begins from the historical consideration that, in modern societies, a morality based on universal principles progressively separates itself from those forms of ethical practice which are tied to specific social roles and expectations. As a result, what has been referred to, since Hegel, as Sittlichkeit degenerates into mere convention. Habermas still insists on this, despite the objections of his critics, communitarian in the United States, Neo-Aristotelian in Germany, that even modern morality ultimately derives what force it has from communally shared convictions. But while Habermas has resisted this move, and continues to defend the formal priority of a universalist point of view, he now also stresses its corresponding weaknesses. First, the complexity of the situations that moral agents need to adjudge generates a ‘cognitive indeterminacy’ which can make excessive demands on the individual. Second, to be effective tins morality must he transformed, from a form of social knowledge, into the driving force of the individual conscience. (An additional difficulty here is that the moral agent is disadvantaged if others don’t follow the same norms, as he or she is entitled to expect.) Third, the level of social organisation required if some moral duties are to be fulfilled – for example, aid for disaster-struck regions of the world – often lies far beyond the reach of individual initiative.
On these grounds, Habermas argues, it is clear that a post-conventional morality requires the complementary form of law. Law enables a society to regulate interactions without having to rely directly on the motivations of its members; indeed it vastly increases the scope for strategic action, yet in a manner still ultimately anchored in the principle of a communicative consensus. Law, in other words, generates a higher-level reflexive social facticity, which compensates for the increasing risks posed by those conflicts which arise when traditional life-worlds splinter, and the space for the pursuit of individual interests expands.
Habermas wants to emphasise, however, that law must also satisfy expectations of legitimacy: if it is to fulfil its socially integrative roles, it must be generated through a democratic procedure, in which all concerned can, in principle, take part. From this he draws the conclusion that his general principle of ‘discursive grounding’ (‘Those norms of action are valid, which all who may be concerned could accept in a rational discourse’) separates into two distinct principles, a ‘principle of morality’ (which specifies the aim of consensus, taking into account all relevant interests) and a new ‘principle of democracy’. This second principle is contrasted with the first: ‘Whereas the moral principle operates at the level of the internal constitution of a particular form of argumentation, the principle of democracy relates to the level of the external (effective) institutionalisation enabling equal participation in the discursive formation of will and opinion, which in its turn takes place within legally guaranteed forms of communication.’
In Habermas’s view, this ‘principle of democracy’ provides a means of resolving the dispute represented paradigmatically by Kant and Rousseau: does the autonomy of the private individual come before the ‘public autonomy’ of the citizen, or are the subjective freedoms central to liberal political thought themselves bestowed by an act of collective self-definition? Habermas proposes a ‘logical genesis’ for the system of rights – a more modest version of the dizzying feats of deduction of his German Idealist predecessors – in which the subjective right to the greatest possible freedom of action compatible with equal freedom for others is understood as a condition of participation in a law-governed polity. Since such a polity must also define a status for its associates, offer guarantees of this status, and legitimate its content collectively, a spiralling movement of internalisation generates further basic rights: of recognised membership of the community, of protection and redress, of political expression and participation. Underpinning all these are rights to the preservation of the social, technical and ecological bases of life itself. All such a derivation presupposes, according to Habermas, is ‘an intuitive understanding of the discourse principle, and the concept of the form of law’.
Even during his most abstract excursions, Habermas remains aware that a purely normative conception of law is likely to fall prey to idealist illusions, misconceiving an institution essentially torn between facticity and validity. He therefore seeks to bring into his picture the sceptical results of that ‘sociological disenchantment’ which sees law as a self-contained system, interacting with other social systems, or simply as an implement of unequally shared power. Habermas’s social theory as a whole is based on a fundamental distinction between a ‘life-world’, organised primarily through tacit consensus, and the systems of state administration and the market economy, which use money and power to co-ordinate actions without the need to gain agreement. In The Theory of Communicative Action, Habermas analysed contemporary developments in terms of a distinction between law as ‘institution’, ultimately anchored in the moral expectations of the life-world, and law as ‘steering medium’, or an administrative mechanism intermeshed with those processes of bureaucratisation and monetarisation which ‘colonise’ the life-world. From such a standpoint the crucial question is how the legislative process can be brought under the democratic control which, according to Habermas, the modern concept of law intrinsically implies. The Theory of Communicative Action bequeathed us the problem of how the life-world can ‘steer’ such systems, and limit their intrusions, without disrupting their functioning.
To address this problem Habermas has recourse here to the category of the ‘public sphere’ (Öffentlichkeit). This concept, first developed in The Structural Transformation of the Public Sphere (1962), provides a sketch-map of Habermas’s entire intellectual itinerary, and is the key to his conception of the continuing emancipatory content of democratic ideals. The public sphere consists of both the direct and the mediated discussions of ‘critically reasoning’ individuals, who thereby form public opinion, and are thus able to exert pressure on the political system, without being formally part of it. Already in the early Sixties, Habermas had appreciated that, under contemporary conditions, only groups and organisations providing internal forums for discussion could hope to withstand the blizzard of advertising, public relations and the mass media, an insight seemingly confirmed by more recent developments, such as the emergence of the ‘new social movements’. Accordingly, in this book, Habermas intertwines the concept of the ‘public sphere’ with that of ‘civil society’, a more recent term for those spontaneous movements and associations beyond the reach of the state which bring new problems and perspectives to political attention. He emphasises the ‘dual politics’ characteristic of such movements, which do not seek simply to influence the political system, as traditional interest groups do, but also to hold open new spaces of communication.
In this way Habermas seeks to span the gulf between the ‘anarchistic’ core of communicative action, which leaves no truth-claim in principle unchallenged, and the remote, inflexible mechanisms of the modern state. Is this conception convincing? He does not conceal the mass of evidence suggesting the extent to which the manipulated, media-saturated public sphere destroys the potential for an effective democratic opinion to form. Statistics such as those indicating that the average length of the sound-bites of presidential candidates on American television has declined from 42.3 seconds in 1968 to 9.8 seconds in 1988, seem to confirm the worst apprehensions of Structural Transformation. One could also argue that Habermas’s enthusiasm for the ‘post-Marxist’ category of ‘civil society’, already tarnished by the latest developments in Eastern Europe, seriously underplays the continuing role of social class as a factor in determining access to channels of political influence. In Faktizität und Geltung he is obliged to appeal, rather weakly, to the ‘normative self-understanding of the mass media’, as informing and facilitating public discussion, in order to convince his readers that issues of sufficient common concern will eventually obtain a hearing. Even then, however, he stresses that it is only crises which are capable of mobilising people successfully. Can such sporadic movements really be said to constitute ‘communicative practices of self-determination’? And how are the democratic impulses of civil society to be distinguished effectively from that pressure from the streets whose role in German politics, as we have seen, Habermas so fears?
To these political concerns can be added reservations about the philosophical bases of Habermas’s conception of a Rechtsgemeinschaft. He believes his theory can help to resolve the problem of the oscillation between the goals of formal equality and of compensatory intervention, which has become explicit in recent legal discussion, and which he illustrates by discussing feminist debates. The problem highlighted by feminist critics is that welfare-state intervention simply assumes what the needs of specific groups are, and makes allowance for these as ‘deviations’ from a norm which is not itself neutral. The solution, Habermas suggests, cannot be to return to a ‘formal’ liberalism, which has irretrievably lost its innocence, but rather to move to a ‘proceduralist’ paradigm, where social groups themselves can bring forward the relevant interpretations of their needs and aspirations. In the light of this move: ‘a programme of law proves to be discriminatory when it is insensitive to the freedom-limiting side-effects of actual inequality, and paternalistic when insensitive to the freedom-limiting side-effects of the state-organised compensation for these inequalities.’
There is no critique here of law as such. Yet ten years ago, in The Theory of Communicative Action, Habermas described the increasing intrusion of law into the life-world as ‘deworlding’, or as isolating and antagonising individuals, and disrupting a social integration essentially grounded in values, norms and processes of understanding. Habermas now renounces this conception of an unavoidable dilemma whereby a simultaneous process of emancipation and colonisation is the result of encroaching ‘legalisation’ (Verrechtlichung). Yet it’s fair to ask whether his earlier insights may not have been suppressed by his current, more positive evaluation of law.
In Kampf um Anerkennung (‘Struggle for Recognition’), Axel Honneth, a younger representative of the Frankfurt School tradition, suggests that the recognition of individuals as subjects of universal legal rights is not sufficient if they are to achieve an undistorted sense of selfhood. Individuals also require acknowledgment of their contribution to the general welfare if they are to value as well as respect themselves, and it is only this reciprocally endowed sense of worth which makes forms of social solidarity possible. From such a standpoint, the intrusion of law must have a damaging effect, because what is at stake is not merely the maximisation of freedom, in terms of individual autonomy and political participation, as Habermas’s formulation suggests. One can see this from the feminist critiques of state intervention which Habermas himself discusses. What is at issue here is not simply whether such intervention restricts the freedom of women, but rather that it treats women as anomalies, and does not reflect an appropriate, non-androcentric valuing of their specific contributions to society. What is ultimately required, therefore, is not merely further legal reform, but a change in the values which organise the possibilities of social solidarity.
Habermas suggests at several points in this book that, in contemporary societies, the resources most urgently in need of protection are not economic or administrative, but rather those of a ‘social solidarity which is currently disintegrating’. It is doubtful, however, whether the ‘project of the realisation of law’ alone, whatever content it is imbued with, is sufficient to combat this disintegration. Indeed, Habermas himself has recently made clear that a concern with rights, which enable self-determination, must be balanced by sentiments of solidarity, which enable self-realisation: ‘Justice is connected with the equal freedoms of unique and self-determining individuals, whereas solidarity is connected with the well-being of one’s fellows, who are bound together in an intersubjectively shared form of life – and thus also with the sustaining of the integrity of this form of life itself.’
Habermas goes on to emphasise, of course, that solidarity cannot be restricted to the internal relations of one social group, closing itself against others, but must be construed in a universalist spirit. In this case, however, a philosophical space appears to be opened up by his own argument for an enquiry into the fundamental structures of the human form of life, as the locus of the ‘archaic, binding energies’ which drive even this expanded, cosmopolitan solidarity. The need for such an investigation is perhaps suggested by Habermas’s blunt declaration, in a recent interview, that ‘emancipation – if the word is given an unambiguous interpretation – makes human beings more independent, but not automatically happier.’ Against the background of German history, his reluctance to provide even an outline of how the striving for solidarity might be fulfilled is understandable. But this very reluctance risks discouraging and dampening emancipatory impulses. An attempt to explore what is essential to the integrity of human life-forms in general might enable mote to be said about the goals which could inspire collective self-determination, without damaging that stead-fast, subtle universalism which has been the hallmark of Habermas’s massive contribution to contemporary philosophical debate.