Gassing and Bungling

Glen Newey

Atrip to Berlin last year offered a chance to take stock of the once and future capital of Europe, and the none too stealthy ascent of the Fourth Reich. Its monuments, largely built by foreign coolies, are rising from the ashes of the Potsdamer Platz, while, down the road, Unter den Linden retains its old Prussic astringency, as if the last fifty years had been but a waking dream. In deference to the BSE brouhaha, posters in every public eatery in town vouchsafed that the dead quadruped on offer was rein deutscher Herkunft – of pure German origin; grim photos in Der Spiegel showed British bovines being shoved into Topf-style incinerators. Irony, or even memory, was at a discount.

Jürgen Habermas has witnessed the republic’s divagations from Weimar through Nazism and partition to reunification, and in some measure his intellectual progress has mimicked that of Germany itself. With his recent work now barely distinguishable from orthodox anglophone liberalism, the Frankfurt School has come full circle. According to such early Frankfurters as Habermas’s mentors Horkheimer and Adorno, modernity’s ills took their rise from the Enlightenment, which had exalted an instrumental (or as Habermas would say, a ‘strategic’) conception of rationality. All this has now vanished: Between Facts and Norms completes Königsberg’s revenge on Frankfurt.

What gives political decisions their legitimacy? It is not a small question, and it’s one which goes back as far as Plato’s Thrasy-machus. It is particularly sharp for capitalist democracies, whose politicians, while remaining in thrall to the rhetoric of legitimacy, tend to impute to prospective voters the motivations of an Arthur Daley. The rhetoric of democratic politics wavers between moral aspiration and egoism, its talk of profit punctuated now and then by homilies about the family, ‘values’, Jesus and the rest. A conspicuous merit of Habermas’s account is its readiness to confront this tension, and to consider its resolution not merely theoretically, but in its institutional (especially legal) ramifications.

The issue of legitimacy often receives a more specific formulation in modern liberalism: what should be done about the fact that in modern societies people hold conflicting beliefs about value, or conflicting conceptions of the good? The political alternatives are either to enact some particular conception of the good by means of statute or constitutional law (as in a confessional state like Iran), or else to adopt a neutral stance, where neutrality consists in adopting either no conception of the good, or only those conceptions which all the protagonists can accept. Such neutrality is sometimes referred to as a ‘privatisation of morality’, but this is misleading, since most neutralists believe that there should be a criminal law: eligible conceptions of the good are unlikely to include those of Ronald Biggs. As regards both this fundamental problem of political philosophy, and his preferred solution to it, Habermas’s position is similar to that of many recent liberals writing in the analytical tradition, such as Brian Barry, John Rawls and Charles Larmore. These writers argue that, by their nature, conceptions of the good – theocratic, secularist, vegan, carnivorous, lesbian, polygamous, socialist, libertarian or whatever – give us insufficient reason to conclude that any one of them is better than any other. This claim may be founded, as in Larmore, on a belief that there are many valuable conceptions of the good, or, as in Barry, on moral scepticism; each infers that no non-neutral state is justified, and assumes that the value-systems in question have equal value, or at least can’t be known not to have equal value. Even if this is so, however, there may be other reasons for implementing a non-neutral solution – ones based perhaps on a suitably robust conception of raison d’état. So if neutrality has a justification, it must lie elsewhere. Between Facts and Norms, out in German since 1992 but newly translated into English, seeks to justify neutrality by a different route: through the conditions which make public political discourse possible.

Faktizität und Geltung, the book’s German title, is none too helpfully rendered by Between Facts and Norms, since one of Habermas’s central ideas – and problems – is that law combines the characteristics of norm and fact, rather than occupying some category intermediate between them. Law is at once a factual constraint on action, which can be built into a purely ‘strategic’ or instrumental view of rationality, and a purported source of legitimacy. Habermas wants to reconcile the purely normative approach of theorists like Rawls with the treatment of law as social fact by legal positivists, or systems theorists like Niklas Luhmann. If this is to work, the dual-aspect view of law needs to justify the obligation to obey the law; otherwise it collapses into a mere de facto theory.

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