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.

Habermas hopes to do this by applying his theory of ‘discourse ethics’, developed in earlier books like The Theory of Communicative Action, to the procedures which determine the law’s content. A fundamental claim is that the norms generated by the right discursive procedures are true, and command reasonable agreement: as truths, they are created, not discovered, or at least are located at the point where creation and discovery meet. A second basic assumption is that language, as ‘communicative action’, aims at consensus. Habermas’s distinction between ‘communicative’ and ‘strategic’ action is, more or less, the Kantian one between actions which respectively do and do not treat other persons as ends in themselves. Since examples come to mind of communication that is not aimed at consensus (in debating clubs or law courts, say), Habermas’s idea is presumably that the orientation towards consensus is a condition of communication’s possibility, presupposed even in these apparent exceptions. That is, the exceptions are only possible because communication is in general consensus-orientated: language exists in order to reach agreement. Habermas’s theory also exemplifies the currently fashionable ‘discursive democracy’ account which holds that political decision-making ideally mimics rational argument, whose sine qua non is the disinterested pursuit of truth. With luck, its outcome will combine the ‘facticity’ of law, as a real prudential constraint on individuals’ actions, with a normative validation guaranteed by its own procedural history. In standard versions, the procedure envisaged is one in which all participate, subject to certain conditions, whereby inequalities of knowledge and power may be filtered out. In Habermas’s version, different conceptions of the good are free-standing ‘epistemic inputs’ into the discussion, which basically means that what matters is the content of what is said, not who says it. A maximum number of initial inputs, combined with the discursive conditions, are held to guarantee normative validity. A rough analogy to this is the way truth may be conceived of in formal systems, where the truth of a theorem consists simply in the fact that the theorem has been derived, via valid rules of inference, from the initial axioms. The idea that open communication provides a procedure for arriving at truth has played a role in liberalism at least since Areopagitica’s ‘who ever knew truth put to the worse, in a free and open encounter?’ What guarantees the justice of the outcome is its having been arrived at via appropriately-channelled dialogue: pace BT, it’s not so much good, as right to talk.

Not just any old talk will do, however. It has to be filtered to ensure that all outlooks and interests are represented, and validated by Habermas’s principle U (for ‘universalisability’). This holds that, for ‘a norm to be valid, the consequences and side-effects that its general observance can be expected to have for the satisfaction of the particular interests of each person affected must be such that all affected can accept them freely’. Habermas has a long story to tell about that last ‘can’, which demands that the norm be accepted in conditions free from distortions arising from inequalities of power. Some might wonder whether such a freedom is a coherent (let alone politically achievable) possibility. The immediate question, though, is how remote a possibility the ‘can’ may indicate, before ‘possibly affected persons’ reasonably decide that the game is no longer worth the candle. The condition won’t provide an independent standard of acceptability if the ‘can’ turns out to mean merely ‘would accept, if they believed in the right moral theory (i.e. this one)’. Admittedly, this broaches a long-running dispute in moral theory. On a broadly Kantian view, the ‘can’ is allowed to get very meagre indeed. The argument will short-circuit if it turns out that what underlies it is a hypothetical clause about how affected persons would behave if they were rational, but ‘rationality’ is in turn explicated as a disposition to accept the theory itself.

This suggests arbitrariness in Habermas’s starting point. Ethical theory distinguishes certain categories of moral concept: the deontic, concerning what is right; and the evaluative, concerning what is good, including the content of conceptions of the good. In Habermas’s theory, as in Rawls’s, the deontic trumps the evaluative, providing principles of right that are capable of refereeing disputes between conceptions of the good when they conflict. In Die Einbeziehung des Anderen, Habermas cites the recent dispute in Bavaria about whether crucifixes should be placed in school classrooms. He says that ‘a neutral arrangement must be sought,’ which meets ‘the overriding demand for co-existence on the basis of equal rights’. If the problem is set up as a clash between conceptions of the good – which have here supposedly caused disagreement over whether or not to have the crucifixes – then these conceptions alone will be powerless to solve it, and a political solution will have to invoke abstract principles of right (such as equality). But why frame the problem that way? We need to know why conceptions of the good should be refereed by a conception of the right, rather than vice versa. Disputes about abortion, for example, might more accurately be seen as a clash between the mother’s ‘right to choose’ and the foetus’s ‘right to life’, which can only be decided by considerations of the good – such as the good of not having a lot more people around, avoiding gin-and-knitting-needle terminations, and so on. Between Facts and Norms thus exemplifies the deontophilia of contemporary political philosophy, as is apparent from its legalistic bias. This is the characteristic ethical and political theory of late modernity, where a society of strangers lacking (so it is thought) natural motives of altruism has to find some means, in the name of the public weal, to check private egoism. It is unsurprising that broadly Kantian ideas, such as those informing Habermas’s work, have been most popular in Germany and the US, where civil litigation amounts to a national sport.

At this point we face the question which has haunted democratic theory for more than two centuries: whether (in Rousseau’s terms) the General Will can be in error – whether, in other words, there is a purely procedural method of determining normative validity analogous to that for determining theoremhood in formal systems. The trouble is that it is implausible to claim that there is a purely internal criterion of validity, since it always makes sense to ask, of a U-generated norm, whether or not it is right. If it makes sense to say that norms so generated are wrong, U cannot be what makes them right: it is incoherent to claim both that the norms are facts purely by dint of their having been procedurally generated, and facts which may, when judged by some independent yardstick, prove to be false. Habermas may think these dangers can be averted by constitutional filters on the content of the norms, such as a ban on racist speech. The question then is: what justifies the filters?

If these difficulties are to be avoided, the status of U needs to be clarified. In a discussion at the Aristotelian Society in London last year, Habermas said that the content of the norms can only be arrived at ‘dialogically’, or through discussion in real public forums. But presumably, principle U itself owes its existence to the monological lucubrations of Habermas in his study in Frankfurt. So, for him, the problem is to know how the procedure validates itself – or, less demandingly, how it avoids invalidating itself. This shows up the advantage of the philosopher-king model, which can at least base its method of reaching political decisions on the philosophers’ claims to know best. Matters are made worse by the leaden style in which Between Facts and Norms is written. If poetry is what is lost in translation, Habermas’s prose is what survives: time has not withered, nor custom staled, its brontosaurian prolixity. It is an irony apparently lost on him – in this, if nothing else, he is still a faithful disciple of Adorno – that someone who attaches such importance to communication remains so pertinaciously abstruse. This creates real problems. For, as writers like Christopher Bertram have argued, discourse theory places a firm upper bound on how much abstruseness can be justified within U. It won’t be enough to say that everyone should know more political theory – or that they should be cleverer.

It is also doubtful whether Habermas’s method of determining the norms’ content is essentially dialogical. Since conceptions of the good figure only as ‘epistemic inputs’ into the discussion, there is no reason why the process should require more deliberators than one: like the depleted personnel of Rawls’s hypothetical negotiating situation in A Theory of Justice, the ‘dialogue’ is apt to echo the sound of one hand clapping. More disturbingly, it is also liable to entrench a potentially anti-democratic culture of expertise, which the early Frankfurt School saw as itself embodying the Enlightenment’s dialectic. This points to a wider difficulty. If it is not to lead to neo-Weberian managerialism, the discursive model must rest content at some point to let the participants get on with it, gassing and bungling away willy-nilly. Judging by remarks Habermas made in discussion at the Aristotelian Society, this laissez-faire option is the one he favours: but then there is no reason to think that the procedure must construct normative truths.

Laissez-Faire may yield less than edifying results. Even where there are no obvious distortions caused by disparities of power or knowledge, actual discursive structures are often theoretically, as well as morally, unaspiring – a few half-cut blokes chatting in a pub, for example, or Leeds United supporters singing ‘Hitler’s Coming Home’ to Mark Bosnich, Aston Villa’s goalkeeper, following his ‘Nazistyle’ salute. Though no doubt symptomatic of civil society’s rude discursive health, these rubicund epiphanies leave us some way from the Habermasian ideal. This is true even of the lately popular device, employed by UK local authorities, of empanelling citizens’ juries to advise them on such matters as noise pollution and the siting of toylibraries – not to mention the hypopolitics of ‘focus groups’ and the iatrogenic palsy imparted to the body politic by practitioners of ‘spin’. Were this the best of all possible worlds, we would doubtless be blessed by their absence: but we live in a world containing Peter Mandelson and Sir Bernard Ingham. This sobering thought is not banished by wishfully thinking of the Internet as a cybernetic samizdat, where the citizenry of orbis tertius partake of free discursive interchange: the problem is not that the Net’s freedom from distortions has been exaggerated – child pornography and restrictions on access for the poor and uneducated come to mind-but that, in the way of samizdat, it must work around power rather than with it.

This prompts reflection on the nature of power in a Habermasian world. Either this world would be a free-for-all, with no constraints on what may be said – personal and racial defamation are good examples – or exclusionary criteria have to be imposed somewhere, by someone, relying on some justification. That means that someone will have to use power to stop others doing what they want to do, or to make them do what they don’t want to do – stopping the defamation, say, or stopping those who dislike it from stopping the defamation. It is no trivial matter to fashion, from raw materials such as these, discursive structures able to prevent imbalances of power without becoming politically marginal.

The problem, then, is that the politics has to be done before the politics. No doubt if there were a set of participatory discursive structures linking civil society with political decision-making in Northern Ireland, the political problems there might prove less intractable – though insofar as there is a fundamental, and irreducible, conflict over sovereignty in the Six Counties, it is far from clear that there is any resolution which Habermas’s account could sanction. Unanimity is hardly available, and any mooted negotiating procedure is liable to boycott by one part or other precisely because it threatens to yield the out come they oppose. Here, as with other contractarian or rational-agreement models, like those of Brian Barry or Attracta Ingram, the belief that there is a U-satisfying resolution is sustained either by fattening up the account of rationality, or by making the protagonists’ desire for agreement stronger than it really is. But often political actors aren’t all that rational, or aren’t that bothered about reaching agreement; names like Martin McGuinness and Garry McMichael come to mind.

Perhaps if the conditions requited for these participatory structures to work were met, there would be room for political compromise even here. But then what has to be conjectured away is just what makes for political disagreement in the first place. This problem becomes all the knottier if the discursive structures presuppose a certain shape for relations of ownership, and the distribution of power. As with Rawls, it is unclear whether the theory requires socialistic power and property relations. The younger Habermas would have agreed that questions like these – regarding media ownership, for instance, or party election funding – aren’t a regrettably necessary prelude to the business of politics: they are the regrettably necessary business of politics. In Habermas’s current theory, though, politically contentious matters – such as who should own what – have either already been sorted out or the conditions which are supposed to make for undistorted communications are, if not irrelevant, toothless.

It’s all some way from the world of Habermas’s 1973 book, Legitimation Crisis, which saw the state under capitalism as creating demands for validation which it would necessarily fail to meet – a claim prefigured in his analysis, in Structural Transformation, of the distortions visited on the public sphere by corporate capitalism. An important question is whether the theory requires any specific institutional embodiment. Habermas seems to envisage a cantilevered structure working up from informal local forums to regional and national (and perhaps supranational) bodies. This, it need hardly be said, is a vexed political issue. The tensions are plain to view in planning law, where higher-level authorities, from county councils up to the DoE, regularly bulldoze through carbuncular applications in the face of local opposition; with regard to Europe, the other side of the UK’s anti-federalist coin is overweening centralism at home. Questions of the distribution of power are political questions par excellence; but then they cannot be resolved by the discursive structures, since the latter presuppose them. The alternatives seem to be either to tell people, before the discussion, what sort of structures they ought to want, or else to settle for the world of the traded horse, the hole-in-corner deal, the barrel of pork – in other words, a world not unlike the one we’re in.

That of course is in many respects an unattractive world. Distaste for the political culture of baksheesh and caitiff credos such as ‘family values’, ‘zero tolerance’ etc is, moreover, hardly confined to the academy. It’s witnessed in the prevalence of single-issue activism: the campaign for animal rights, for example, whose ideological motivation consists partly in the rejection of power. Dumb and impotent, animals offer the perfect raw material for this unpolitical politics: a palimpsest, happily blank, onto which their champions can project a sense of powerlessness. In another guise, this impossibilism offers the beguiling spectacle of philosophers escaping the workaday frustrations of departmental wrangles, cancelled leave and research assessment exercises, to glory in theory like so many Asiatic despots. Philosophy, which presumably has as good a claim as most discursive practices to embody Habermasian constraints on acceptable discourse, has signally failed to generate rational consensus – even about the desirability of rational consensus itself.

‘If I ruled the world,’ Sir Harry Secombe once sang, ‘every day would be the first day of spring.’ Political philosophy nowadays is unabashedly Secombesque, dispensing utopian nostrums when we all live in what Waiting for Godot calls ‘the kakon country’. After all, what political theorist, confronted daily with the tenacious inanity of public discourse, does not feel sick at heart? In Habermasian theory the public sphere survives, but not as we know it, lost somewhere between the sunlit uplands of reasonable morality and the murky début de siècle world of Richard Hannay’s ‘prognathous West-phalians’, retreating of brow and malign of intent. At the century’s end, as at its beginning, Britain’s bugbear is the eternal Teuton, healthier, wealthier and better at soccer; but the real tiger in the woodpile lurks in Luzon, Taipei and points east. This will be the real political issue in the years ahead. The prescriptions of ideal discourse give little clue as to how to solve it.