Patroklos's Funeral and Habermas's Sentence

REVIEW SECTION SYMPOSIUM Habermas and Sociolegal Theory

Patroklos’s Funeral and Habermas’s Sentence

Elias Jos6 Palti

HABERMAS, JORGEN. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Trans. William Rehg. Cambridge, Mass.: MIT Press, 1996. Pp. 631. $50.00. Original edition, Faktizjtiit und Gel- tung. Beitriige qur Diskurstheorie des Rechts und des demokratischen Rechtsstuats. Frankfurt and Main: Suhrkamp Verlag, 1992.

Between Facts and Norms is something more than the last work in the series of massive works written by Habermas; it clearly is (after Knowledge and Human Interest and The Theory of Communicative Action) the third great landmark in his intellectual career. Its lines of continuity and change with respect to his previous works are not easily traceable. Most of the ideas exposed in Between Facts and Norms actually are not unfamiliar to his read- ers; the book synthesizes intellectual developments already presented, although nonsystematically, in different writings. Yet, the focus according to which they are here organized is peculiar to this text. All of this enor- mously rich and complex text revolves around one single, and rather simply formulable, question: What is a valid law? or more precisely, how is a legitimate law, which necessarily involves a claim to transcendent validity, possible in a postmetaphysical context?

Although not absent from previous works, never did the category of law occupy such a central place in Habermas’s philosophical system. In trying to deal with it, he found himself forced to revise some of the concepts hitherto basic for his theory of communicative action. This does not neces-

Elias Jose Palti, who holds a Ph.D. from the University of California, Berkeley, currently teaches Latin American history at the University of Quilmes, Argentina, and is researcher at CONICET.

0 1998 American Bar Foundation. 0897-6546/98/2304-1017$01 .OO 1017

1018 LAW AND SOCIAL INQUIRY

sarily mean a departure from the premises of th is theory; on the contrary, it is in this very revision of them that what he once called the underlying essential unity (from, at least, around 1970) of his “research program” is revealed to us (Habermas 1993, 149). The common horizon in which all these intellectual turns and twists can take p.ace is still provided by the concept of discursivity as a proceduralist, metartormativist realm that allows and explains “transcendence from within” (;is Habermas says, following Peirce), that is, “how the validity claims raised hic et nunc and aimed at intersubjective recognition or acceptance can, at the same time, overshoot local standards” (p. 15).l Nonetheless, the kinds of refraction that this philosophical horizon underwent when translated into the new medium (the theory of law and democracy) are not less significant than the alleged essential unity of it. In any case, the expansion of his “research program” to this new realm made Habermas face instances of theoretical and practical decision taking on grounds not given by his discours theory. Habermas’s options on these points are ultimately revelatory of soi:ne ideological reorientations in his latest thought; and it is in this sense thar: this book can be considered a landmark in his intellectual career. In the fcllowing pages we will try to assess some of the book‘s achievements an(. weaknesses in relation to Habermas’s previous concerns and hitherto unsolved questions, as well as the new directions that the publication of this book sets within the frameworks of his “research program.”

LAW AS A DISCOURSE-THEORY CAT’EGORY

Between Facts and Norms is a text destined to become a classic in West- ern culture as the latest philosophical attempi in our century to move beyond the traditional dichotomies that have torn apart modern political theories. To briefly summarize its content is si nply impossible; yet, we can at least trace the main ideas that presided over its elaboration. Briefly stated, we can say that it represents, basically, dabermas’s supreme intellectual effort to overcome what he calls the limiiations of an idealistic philosophical tradition without relapsing into the t ioral relativism of empiricist approaches. In the context of Habermas’s own “research program” this means, as he insists in the preface to this book. to “performatively refute the objection that the theory of communicative r( ason is blind to institutional reality-or that it could even have anarchist consequences” (p. XI).^ For him, treating law now amounts to taking seriot sly the “material substratum” implicit in the very concept of an institutional [zed social order. The idealis-

1. In-text pagination corresponds to the English rdition of the book under review

2. He refers here to Bubner 1992, 188-202; and Hiiffe1987, 193ff. (1996).

Patroklos’s Funeral and Habermas’s Sentence 1019

tic (purely normativist) views (Rawls’s is the most recurrent example of this in that work) of the natural-rights tradition remain empty of any positive content. For Habermas, law always exists within a definite historical framework, carries with it values that are context specific (particular to a given culture); individual rights do not preexist their legal sanction: law (facticity) and rights (ideality) are, for him, equiprimordial (gkichurspriinglich). The evidence of the non-eliminable substratum of facticity present in every legal code led, on the other hand, sociologists (Luhmann’s system theory is Habermas’s preferred target here) to adopt an objectivist view that is blind to the dimension of universal validity (i.e., transcendent to any particular context) inherent in every legal code that claims to be legitimate.

Seen from the perspective of an uncommitted observer, this claim of universal validity appears as a mere “illusion.” The latter dimension (validity) becomes visible only when we assume the participant’s standpoint; but this also involves taking those values and traditions particular to hisher given culture as “natural.” Hence natural-right theorists (aware of the key role of validity claims in the constitution of the social order) sought to anchor that normative dimension in universal principles of justice (fairness). According to Habermas, however, this postulate rests on a philosophy of the subject that obliterates the intersubjective nature of rights. Once its metaphysical assumptions are undermined, “natural-rights normativism gets lost in a trilemma: neither in the teleology of history nor in the constitution of the human species can we find the content of practical reason . . . . nor can we justify such content simply on the basis of the fortuitous resources of successful histories and traditions” (p. 3).

By highlighting the constructed dimension of every legal order, the communitarians’ criticism of natural-rights theories not only revealed its sociocultural nature but also served to link its legitimacy to its very process of formation, that is, collective deliberation (what Habermas calls the democracy principle). But, in the process, communitarians confused values (rel- ative to some given tradition and culture) with norms (which compel imperatively), de facto acceptance (soi+.de Geltung) with idealized validity (Giiltigkeit), thus losing that transcendent dimension intrinsic to every legal order. In doing so, the communitarian’s radicalism risks becoming “anarch- istic,” (i.e., unable to provide any reason for the subject to obey the law). But this also makes it susceptible of becoming its contrary and paving the way to an empiricism of a clearly conservative tone (as exemplified by Luhmann’s system theory): deprived of any transcendent perspective that could allow us to confront and question the basic assumptions and values of our own culture, all critical dimension is also lost.

In any case, it is evident that the communitarians do not overcome the metaphysics of the subject; they merely transfer the locus of rights from individuals to a historical macrosubject (culture as a whole). And, for


Habermas, they thus invert the logical order of the concepts: It is not the legitimacy of a given legal code that founds its validity, but rather, the other way around: only its validity-claim renders it legitimate. Here, then, we meet Habermas’s original question: how is a legitimate law possible, and ultimately, how can something like a normativit q be embedded in social facts (a notion that he acknowledges to be “entirely counterintuitive”) (p. lo)? In order to find it out, he thinks, we should 3e able to combine both per- spectives, the philosophical-normativist (c1os::r to participant’s standpoint) and the sociological-empiricist (as seen from I he view of an objective, neutral observer). The possibility of doing this involves, in turn, a strategic displacement of philosophical grounds, a shift from practical to communicative reason: the site where both opposite apprl.)aches can converge and their respective insights can be tied up meaningful1.i-and their limitations overcome-is only a discourse theory of law and d6:mocrucy.

Discourse theory addresses itself to that di rnension of social reality prior to the distinction between morality and lavi.: the intersubjective activity aimed at reaching mutual understanding. Fm Habermas, communicative reason is not a subjective capacity ascriber.1 to an individual or super- individual actor. It is a property of the linguistic medium itself. It is not a source of prescriptions. But although it does not supply substantive directions for the resolution of practical tasks, it has a normative content that makes orientation to validity possible. In effixt, in seeking understanding, actors must commit themselves to pragmatic. presuppositions or “idealizations”: that participants in an uncoerced dialc lgue pursue their illocutionary goals, that they recognize validity claims, and that they are ready to take on the obligations resulting from consensus. The,je “idealizations” are, in every case, counterfactual, that is, they are always illocutionarily entailed in every communicative action, even in those cases th: It they are not factually attrib- utable. Debating has always attached to its co-icept a normative orientation to validity; it rests on a set of ethico-practical assumptions that can be syn- thesized in the precept of egalitarian reciprocit y .

Everyday communicative practice supp1ir:s Habermas the model of discursive rationality. In The Theory of Commwiicative Action (1984), he defined lifeworld or Lebenswelt (the social principle) as the natural locus of communicative reason. To this, Habermas cpposed a systemic rationality (the administrative principle) ordered on the basis of nonlinguistic steering media (money and power) and aimed at its iiwn self-reproduction. System rationality is not alien to language but relies on a purely strategic (instrumental) use of it, one oriented not to reaching mutual understanding but to success, mastery. However, there is an asymm ?try between them: the “communicative” use is the “original” mode of lanlyage upon which the “strategic” use is always “parasitic” (1984, 288). For Habermas, Luhmann’s system theory is an example of the limitations of th,., purely strategic orientations:

Patroklos’s Funeral and Habermas’s Sentence 102 1

seeing social integration exclusively from the system’s perspective, he is unable to explain how the “informationally encapsulated” (autopoie tic) subsystems can coordinate their mutual behavior in order to constitute the social whole. Only ordinary language provides the common substratum that makes the translatableness among the different codes possible. Thus, social integration necessarily rests on lifeworld. Ultimately, in a secularized culture, with no metasocial guarantees for the institutional order, the burden of integration rests on communicative achievements: subsystems also must legiti- mize themselves in the public arena.

This also applies to law. The less legitimate a legal order is, the more other factors, such as coercion or habits must reinforce it (p. 30); but, for Habermas this still counterfactually proves the role of consensus reaching as the sole source of legitimacy. This means that valid laws refer to norms, albeit in a mediated way. Legitimacy is internally linked to self-legislation (the democracy principle), and this in turn connects with a normative presupposi- tion of a strictly proceduralist nature that is illocutionarily inscribed in every process of consensus reaching (the discourse principle “D”-egalitarian reciprocity): that “just those action norms are valid to which all possibly affected persons agree as participants in rational discourse” (p. 107).

In sum, for Habermas, law, democracy, and communicative reason (lifeworld) form a continuum. However, they are not mutually reducible since they are the result of an irreversible historical process of social differentiation of functions. Lifeworld and archaic institutions explain social integration in small communities; but, with social evolution, the risk of dissension increases, subsystems gain growing autonomy and tend to detach themselves from lifeworld, and individuals find their cognitive capacities overtaxed by the complexity of issues at stake. Only at this point do we grasp Habermas’s present notion of “the empire of law” (Rechtsstaat). In complex societies, he now states, unfettered communicative action cannot bear the burden of social integration. Social integration based on consensus becomes precarious and can be secured through communicative action only when the concomitant risk of dissension (due to the loss of “authorities”) could be brought under control within the validity dimension itself. Law removes the task of social integration from the actors and, at the same time, sets the medium through which communicative action can become operative in the context of highly differentiated social environments. Hence the key role that Habermas confers today to law, which he calls the great trans- former connecting the different subsystems with lifeworld and converting social integration into administrative power. Law can fulfill this pivotal function given its double nature. I t is at once universal and particular. As a subsystem, it develops its own inner (systemic) logic, but given its validity claim, it is internally linked to lifeworld. In this way it remains an ambiguous medium of social integration, receptive to functional imperatives and, at the


same time, ( in a secular world) subject to tb: idealistic pressure of legitimacy. Thus, the twofold nature of law become? comprehensible: its simulta- neous positivity and its claim to rational aceptability (normativity and facticity ).

This notion has been objected from different angles. Some authors have consistently questioned what they consider the arbitrariness of some of Habermas’s categories (highlighting ambiguities where he sees clear-cut dis- tinctions), as well as the conceptual obscurity (or practical inapplicability) of other of his core notions. An example of I he former questioning is the criticism made by sociologists of Habermas’s distinction between lifeworld and systems, which, for them, although they can perhaps be analytically differentiated, are empirically indiscernible (Peters 1994). An example of the latter questioning is the communitarian’s (and other’s) discussion of Habermas’s idea of a “procedural justice,” whic I, it has been said, is theoretically untenable and unsustainable in practice: it either entails leaving his theory empty of any normative content3 or necessarily leads to surrepti- tiously introducing substantive claims.4

These critiques, however, often involve c.lifferences and disagreements with respect to Habermas’s postulates. They do not really point to inconsis- tencies present in his own theory, or problems that could not eventually be solved through theoretical adjustments withi n its own categorical framework. Actually, this adjustment is what Betwten Facts and Noms claims to have accomplished. Other contentions, inste; Id, highlight true blind spots in his theory. They refer to its limit-notions, to what Polanyi called its tacit dimension: a level of assumptions basic to his 2hilosophical system that are simply taken for granted or assumed as “natiiral” and cannot be thought (objectified) from within it. Habermas’s permanent attempt to deal with them underlies a long-lasting intellectual effort that did not begin with this last book and cannot be said to have conclude d with it. Yet, to see why this is so, we must refocus our attention and take some distance from his own perspective. Heavily relying on a dichotomous and highly stylized historical presentation5 in which the alternatives existin ; in modern political philosophy are too clearly delimited, making them easily graspable but at the price of glossing over the intricacies of its actual history, his narrative strategy tends to obliterate the links that communicate his own theory with the very tradition he affirms having overcome. Althoul.:h it may seem awkward here,

3. For discussions of the indecisively formalistic n:iture of, and difficulties in applying, Habermas’s moral philosophy, see Dober 1990; Dwars I!. 92; Giinther 1990; Heller 1984-85; and McCarthy 1992.

4. For the critique that Habermas’s ethics of discourse does contain substantive normative propositions, see Benhabib 1992b and Kelly 1990.

5. An example of the the arbitrariness of some of flabermas’s classifications can be oh- served in Rawls’s “Reply to Habermas,” which originally appeared in the Journal of Philosophy (1999, and was reproduced in the paperback edition oi Political Liberalism (1996).


a reference to Foucault’s reflection on this subject (the origins of the law system) will still help us clarify this point.

TRUTH A N D LAW: FROM HOMER TO ROUSSEAU

In a 1973 series of conferences given in Brazil, which were originally published under the title of A verdade e as formas juridzcas,6 Foucault men- tioned a scene from The Iliad (frequently referred to by students of ancient law): Patroklos’s funeral, in which Homer tells of a chariot race. Antilokhos commits an irregularity and wins. Menelaos, his contender, naturally pro- tests; but what strikes Foucault is that instead of resorting to the witnesses to settle the dispute, Menelaos challenges Antilokhos to swear before the gods that he did not commit any irregularity. Antilokhos then recognizes his fault and the prize is turned over to Menelaos. The idea implicit here was that if Antilokhos had falsely sworn, the duty of punishing him would have turned to the gods; Zeus himself would have made his power and his wrath felt by casting his lightning bolt upon Antilokhos.

Foucault related this as an example of the kind of regime of truth that existed in the preclassical age, a regime of m’al (kpreuve): games and contests were the trials through which the gods revealed their sentences (krisis). He concluded from this the idea of an original unity between truth and power: the one who possessed power, insofar as he was chosen by the gods themselves, was also the one gifted by them with the knowledge corresponding to his function. This idea is supported by available evidence. The above-men- tioned race contains other examples of it. During its course, a dispute arose between Diomedes and Aias as to who was leading. Aias proposed to ask Agamemnon to mediate. There was no reason to think that Agamemnon was in a better position to observe what was happening. If he was proposed as the judge (istor, which also means “knower”), it was because Agamemnon was the “chief of the kings.” The underlying assumption now was that the right person to judge any dispute was the king because, as such, he knew better. But, as Douglas MacDowell remarks, there was another likely reason- his power. A disputant whose claims were rejected by a judge might just ignore the decision if the judge were merely a private person, but helshe could not help but being afraid of transgressing the king’s decision (Mac- Dowel1 1978, chap. 1).

In any case, the point is that justice was always internally linked to power. This, in turn, derived from the personal nature of offenses-there was still no difference between a violation of the law and a personal offense. The split between truth and power follows the emergence of the idea of an “objective right,” which gives birth to rhetoric (the art of rational argumen-

6. I am using the Spanish edition of Foucault 1978.


tation in court). For Foucault, the story of Oed pus represents the transition from a verity regime of trial to a deliberative one (i.e., of rational inquiry [enquitel). Only then could justice become “objective,” could it be established in reference to norms that were indepei tdent from power, and could the former even be opposed to the eventual holder of the latter. Thus, the figure of the tyrant was born, and along with t, that of the right of resistance to oppression or right of insurrection (all hough this would also make room for the Platonic idea of the philosopher

Justice then became “objective” in another sense. It was now identified with the community as a whole thus losing its subjective nature: from then on, a transgressor of the law no longer committed a merely personal offense, but challenged the social order (calling for justice-dzkc- to be restored). In this case, the underlying assumption was that universal norms of justice were incarnated in the polis and made manifest in its customs and traditions.

Habermas’s point of departure is a situation in which both relations (justice-coercion, norms-values) had already bcen rendered problematic. As he remarks, in posttraditional societies, norms detach themselves from customs and traditions, which are then devaluatl,bd to mere conventions with no normative content (p. 106). For Habermas, this double opposition (justice-coercion, norms-values) expresses the twoiold tension (internal and external, respectively) present in law. The sN.:cond terms of this double antinomy (coercion, values) represent its sukstratum of materiality; a dimension, therefore, both problematic and cot-lstitutive of it. Suturing that gap, discovering how the first two terms (justice, norms) are incarnated in the second ones (values, coercion) is Habermas’s newest challenge. Law is precisely the point at which justice and custc bms converge and interpene- trate. In order to reach this concept, Haberma:. had to reinforce the internal connection of law with norms. But, to see the real dimension of the challenge he faced and the kind of problems it entailed, we must return to Foucault.

What Foucault did not notice in his an:ilysis of ancient law was that the way this functioned was more comp1icatec.l than he noticed. Given the plurality of the gods and the usual divisions in the ancient pantheon, sentences were never definitive; the hero could ally himself with one god against the others and even cheat and defear: them. Examples of this are abundant, indeed in The Iliad (Menelaos, for cxample, could be defeated by Hector due to Athena’s intervention, but this sentence was not one with no appellation; he could still hope that the disposition of the gods would eventually become favorable). The proliferation of the gods was an effective

7. Insofar as truth becomes “objective,” it also beccnies available to any rational being, and its possession is no longer a privilege of authority; biit, as Plato remarked, truth also lost its deliberative nature, turning into an epistemological one. It ceased being “a matter of opinion.”


strategy against what Hans Blumenberg called the “absolutism of reality,” a means by which people symbolically assert their control over their own conditions of existence (1982, chap. 1). However, the price for this was the translation of antagonism from Earth to the heavens. The result was a permanent deferral of the krisis (i.e., the moment in which the sentence is pronounced and justice is restored).

The process of detachment of truth from power was linked, as Foucault showed, to the emergence of a deliberative concept of truth, but this, in turn, presupposed the unification of the concept of justice. In order for evidence to become a matter of rational controversy, reason itself first had to shed its controversial dimension. Law had to become distinct from the ad- minismution of law. Only the latter would be properly human (contingent, subjective); law, instead, would be posited as “objective” and “universal.” The medieval/Christian God (one and unique) inherited this categorical compound. His omnipotence made his power of coercion incontestable; his omniscience made his judgments infallible. On the other hand, as he himself was both (in Leibniz’s words) the architect of the universe (creator of customs) and the ruler of the city (giver of norms), he could not be in contradiction with himself. In short, Christianity closed the double fissure (justice-coercion, norms-values) present in law (which Habermas called internal and external tension) by deriving values, norms, and right (power) from one and the same (transcendent) source. However, the “external” tension in law between the universality of the supposedly eternal norms of justice and the particularity of cultural values still found its manifestation in the medieval idea of the double nature of the king. As the law’s living incar- nation (lex unimata or nornos emphyscos) and, at once, its subject (as ex- pressed in the antiphrasis puter et jilius lustitie), he was seen as placed simultaneously above (legibus solutus) and below it. The distinction between the “king’s two bodies” (a corpus reipublice mysticum, which did not die, and a corgus uerum, which died) was aimed, precisely, at solving and explaining that paradox (Kantorowicz 1981).

The modern concept of “citizenship” reproduces this same tension; the citizen, as the medieval king, is at the same time above and below the law, its subjectum and its subjectus. This time, however, this tension would derive not from the transcendence of sovereignty, but from its immanence, from the fact of the sovereign being its own subject (Balibar 1991). This posed an evident aporia (already noticed by Rousseau): if the citizen does not become a subjectus of law, he/she cannot be its subjectum; that is, only by resigning hisher sovereign right can he/she make real this sovereignty-an obvious contradictio in adjectio. This, however, was unavoidable within the context of the social-contract concept. In order to make an institutional order possible, the citizen must resign hisher sovereign rights (i.e., the right of insurrection, in which hisher sovereignty as the subjecturn of the law is made mani-


fest); otherwise we would still be in a state of r’.ature. Yet, once the citizen is stripped of hisher sovereign rights, the institul ional system built upon those rights will have also been deprived of its ultinate source of legitimacy. In short, without its transcendent foundations, the idea of a legitimate political order comes to involve as its premise that which also renders such an order impossible-the continuous exercise of the sovereign rights by the citizens. The right of resistance to oppression or right of insurrection thus stands as the condition of possibility-impossibility, the I imit-notion of the republican concept, at once necessary and devastating 01‘ it.

Habermas’s new work should be analyze,.l against the backdrop of the problhatique here related. The medieval not ion of the “king’s two bodies” was originally established as a means to assert the absolute power of the kings and to guarantee the continuity and stability of the monarchical system. However, as a solution, it was precarious: said distinction had always implied the risk of an eventual fracture between the two bodies of the king, as in fact happened in seventeenth-century Eiritain (then, his corpus verum came to be seen by his subjects as in contraciiction with his corpus jictum; and this legitimized their rebellion). The stahility of monarchical authority demanded a double operation: the establishn lent of the analytical distinction between both bodies of the king and, siinultaneously, the assertion of their inseparability in practice. Something! similar occurred with the Habermasian notion of justice. Having establ ished the distinction between “procedural” and “substantive” justice, Haber mas still needed to reconcile and combine them into one single concept. T iis is what he does in Between Facts and Norms. Reconstructing the rath 2r intricate process of how Habermas reached the notion of “the empiI? of law” (Rechtsstaat) as the point of their convergence is not an easy ta::k, since both theoretical and extratheoretical factors participated in the di: liverance of this outcome.

THE RUPTURE BETWEEN REASON AND PUBLICITY

Habermas actually never dealt directly v, ith the contradiction implicit in the modern notion of “citizenship”; howevcr, this contradiction underlies all his works since The Stwctural Transformatic n of the Public Sphere (the first of his major books, originally published in 1962). Disenchanted with the prospect of a revolutionary class, Habermas c riented his search for the hidden emancipatory sources lying in the very c( ‘nditions of society itself. And in that “category of bourgeois society” alluded to in the title of that book (“public sphere”), he found a democratic potential needing redemption. For him, the notion of a public sphere or “pub icity” (first developed in the world of letters) conceptually entailed a seri es of preconditions (although they were not materially present) that defimd a model of radical democracy. Summarily stated, the very concept of a .‘Republic of Letters” involved


a disregard for personal status and an exclusive attention to rational argu- mentation, the problematization of new areas of social reality breaking the state monopoly on interpretation of them, and what Habermas called “in- clusiveness in principle”-that is, that participation in the public sphere is, in theory, open to everybody who has access to cultural products: although restricted in practice, it is always conceptually assumed as immersed within a broader-ideally universal-public. Habermas identified this ideal concept as the immanent content in the modern idea of citizenship. Thus, his notion of public sphere was merely an elaboration of the idea of the citizen as the subjecturn of law (the Rousseauean roots of his early thought has not passed unnoticed among his commentators), to what he called the “natural basis” upon which the republican political order holds. The question regarding the citizen’s situation as subjectus was not, instead, a Habermasian concern at a time when he still trusted in the factibility of a (future) perfectly egalitarian society, one in which social differentiation and every form of coercion would be abolished; ultimately, the ideal of self-legislation made the-assumed as merely factual and transitory-distinction between subjecturn and subjectus irrelevant.

Certainly, for him, this democratic potential was never realized in practice in the bourgeois society. Against its own concept, the bourgeois public sphere always remained exclusionist. In the course of the nineteenth century, the progressive expansion of the rights of suffrage threw this contradiction to the forefront. The emergence of a nonrational (demagogic) form of public debate questioned one of the basic assumptions entailed by the bourgeois concept of publicity. As Hannah Arendt remarked (when referring to Kant’s concept of it), the idea of public sphere rested on the equalization of “publicity” and “rationality”: only that which was rational could be publicly articulated; passions, on the contrary, were supposed to be individual, intransferable, not susceptible for being shared intersubjectively and exchanged in the political arena (Arendt 1959, chap. 1). When this proved wrong (i.e., when, with “demagogy,” passions became a political force) the paths of Western thought split apart. “While the socialists demonstrated that the basis of the bourgeois public sphere did not satisfy these preconditions [implicit in the concept of public sphere], . . . the liber- als took the manifestation of the same contradiction as an occasion for casting into doubt the very presuppositions of a natural basis upon which the idea of a political public sphere rested-and to argue all the more deter- minedly in favor of conserving a relativized form of the bourgeois public sphere” (Habermas 1991a, 131). John Stuart Mill and Alexis de Tocqueville are the most lucid representatives of this process of revision of the basic assumptions allegedly implicit in the concept of public sphere.

With this last remark, Habermas was actually avoiding the most per- turbing questions the break of the bourgeois concept of the public sphere


posed to his concept of it. The idea of the emcrgence of a nonrational form of publicity challenged less its bourgeois form than its very definition. This now demanded a criterion to distinguish critical debate from vulgar opinion; but the notion of public sphere (unable to tl-ink its own historicity) prevented this. Trying to do that while still accepting the fundamental principle of “public opinion” would necessarily lea d to infinite regression. The notion of public opinion is founded on two basic assumptions: first, that there is one truth and, second, that nobody can claim to have privileged access to it. This is so because if there were no ultimate truth, public debate would be pointless; but, on the other hand, if .:here was some kind of direct access to it, public debate would be unnecessary. In this case, the only way to decide which is an “authentic” (critical) piublic sphere and which is the “bastard” (demagogic) one would be through a metacritical debate. This, however, would not solve the problem but v,ould simply translate it to a different, metadiscursive, level at which, soomr or later, it would reappear. Since we still should assume that not all fortns of metacritical debate are “rational,” we must be able to distinguish the ‘latter from its degraded forms, which would demand a meta-metacritical rational debate, and so ad infin- itum. The only way to break this cycle is by d( )gmatically positing one level (whatever it is) as prediscursive (natural) and whose rationality, therefore, would be self-evident.

This aporia, in turn, derives from the fact that a circular logic is already at work here. So far, the question was whetker a particular case could be considered a critical debate. Now, the point is that the very idea that a critical debate is the only means of access to rruth could only be known by critical debate, which already assumes that public debate is the correct means of access to truth (in this case, the tru.th of the public sphere itself), which is precisely what is here at stake. In the final analysis, this is a conse- quence of the fracture of the concept of a unified “rational will” (now become the only single source of power ar.d justice) produced by the emergence of a form of publicity of a differimt (noncritical) kind. As it happened among the Greeks, not only reality ‘hut also heaven itself split and was populated not by one single God but by a plurality of gods (of public spheres) in mutual antagonism.

The Mill/Tocqueville solution to this aporia consisted in restoring the unity of the “general will,’’ if not on the earth of public opinion (fucticity), at least in the heavens of critical reason (validit) ) by simply assuming that the criterion for deciding the rationality of a giwn form of public debate was “natural” and “self-evident” (i.e., not an obj ect of “opinion”). Thus, this solution consisted in introducing an asymm4::try among the levels of discourse-what was valid for the first order of discourse would no longer be valid on a second level-in order to produce a metacritical closure (the only means to break the danger of an infinite regress). In any case, this


proved that the notion of public opinion-in its very concept, and not only under its “degraded)) “bourgeois form”-was untenable: sooner or later it remitted to an instance placed outside critical debate. This meant that public reason rested on a foundation external to it, that it was not self-contained. Definitively, Habermas could not follow this last conclusion to its final, logical consequences. More important for us is the fact that even today (after revising fundamental aspects of his original concept of it), although unavoidable, he still cannot accept that conclusion, since, as we will see, doing so would have devastating implications for his “mature” philosophy as well.

MANY HEAVENS

The publication of the English edition of The Structural Transformation (1991a) was the motive for a renovated debate on this work. Its criticism was predictable; 30 years after it originally appeared, many of the ideas there exposed have become obsolete or demode. Some of the problems now observed in it relate to the alleged historical inaccuracy of Habermas’s rather idealized portrait of the bourgeois public sphere.8 Other, more theoretical, objections were raised in connection with his lack of attention to social movements and their capacity to reshape the public arena. As Nancy Fraser remarks (1992), public debate is not only “about” an already established common good, but also constitutive of it, defining interests and identities. Habermas’s disregard of that potential would have led him to “naturalize” what was just a specific historical form of public sphere. More concretely, according to Fraser, by locating the “true human interests” in lifeworld, Habermas would have produced a gender neutralization of agency (Fraser 1992). From this, two different conclusions can be drawn. The first can be found in authors like Seyla Benhabib, for whom Habermas’s uncritical early reliance on traditional “Western values” led him to fix the boundaries between the private and the public spheres. Public debate, for Benhabib, con- tinually redefines its . limits, incorporating new issues and themes traditionally considered “private” matters ( 1992a). This is actually a “weak” criticism of the Habermasian concept. A “stronger” one is more clearly ob- servable in Fraser’s contention (although she herself oscillates between both critical attitudes-the “weak” and the “strong”).

In her discussion of Habermas’s idea of a public sphere, Fraser makes four points: ( 1) the impossibility of separating formal and substantive issues,

8. Keith Baker (1992), for example, analyzed the concept of it held by the physiocrats, who regarded public opinion a merely an instrumental means of progress. German authors had already raised this point. Werner Jager, who studied the English Parliament in 1832-67 (one of the best models for Habermas of a bourgeois public sphere), proved how far it was from any idea of a “rational debate” (it was actually dominated by lobbies).


since substantive inequality prevents participation even to those formally entitled to do it; (2) the necessity, for the ri.:alization of the democratic ideal, of the proliferation of a diversity of comp2ting public spheres (including subaltern counterpublics); (3) the practical impossibility of restricting their debates to matters of the “common gocld” (bracketing all those assumed as “private” consideration^);^ and, final1 y, (4) the necessity of revising the assumption of establishing a sharp sepxation between civil society and the state as a means to protect the former (what actually would con- demn it to remain a “weak public,” with no institutional assets).

Fraser’s own conclusion is actually not veiy different from Benhabib’s. Basically, Fraser’s strategy (like Benhabib’s) ccnsists in separating the concept of public sphere from its bourgeois form and then opposing the former to the latter. In fact, this was Habermas’s original project. He would have entirely agreed with Fraser (at that time, although not now) on the limitations of the bourgeois public sphere and the necessity of overcoming substantive social inequalities as a condition to make real i :s formal ideal of equal political participation. Fraser selects a rather narrow (purely formalistic) concept of public sphere to better criticize it; but thi:. was not really Habermas’s. However, Fraser’s criticism is-potentially-sti 11 devastating to Habermas’s actual concept. With Fraser’s second point-tk e idea of the eventual emergence of a plurality of competing public spheres-we see resurfacing (under a new form) the Mill/Tocqueville’s aporia. l:Cecently, Habermas has ac- cepted Fraser’s criticism; but he can do so only after smoothing out its most conflictive aspects. This is in tune with Frasx’s own view. In her third point, she also dilutes the disturbing character ‘:If her previous statement. As we saw, in this argument she states that ther,.: is no way to know “in advance” whether a “common good” exists. But this is a very weak criticism of the bourgeois notion of public sphere and, in fa C t , leaves Habermas’s idea of it untouched. Habermas never made any prew pposition about the possible outcome of public debate; for him the point at stake was that, whatever the outcome was, it would still entail the idea of a public debate (as defined by him) as its condition of possibility (which was Habermas’s sole concern). In the case presented by Fraser, we could not syeak of a “plurality of public spheres” but, more simply, of the complex, mu1 tilayered nature of the public space, comprehending diverse circuits of discu.sion, each one with a different agenda and standards. But this ultimately contradicts Fraser’s own second point.

The idea of a true diversity of public sphc,res necessarily implies possible controversies in the very process of a defii iition of collective identities

9. Ultimately, she says, “there is no way to know in advance whether the outcome of a deliberative process will be the discovery of a common good in which conflicts of interest evaporate as merely apparent or the discovery that coi-flicts of interests are real and the common good chimerical” (Benhabib 1992a, 130).

Patroklos’s Funeral and Habermas’s Sentence 103 I

that constitute the a priori for the articulation of a public sphere-and not its eventual outcome, as she states. This would mean that differences on that level could not be solved in a public debate, which already presupposes those norms and standards that would have then been at stake. This “strong criticism” is, at least, implicit in Fraser’s contention insofar as she begins to question the Habermasian assumption of a “natural basis’’ on which to define the identities of the participants in the public debate, which, obviously, cannot be submitted to public discussion without falling into circularity. In this regard, her introduction of the consideration of the role of social movements in shaping the public sphere actually entails an inversion of the very notion of it as understood by Habermas, and not only under its bourgeois form: even if it were absolutely inclusive in practice, it would still be exclusionist in its concept; its very constitution-even in its ideal, omni-inclusive form-entails an arbitrary closure of alternatives and the exclusion of other possible systems of subject identity. And thus posed (in this strong form), that objection raises serious problems not only for Habermas’s early concept of public sphere but also for his more recent idea of “communicative rationality.”

HABERMAS’S “LINGUISTIC TURN”

In the 1970s, as is well known, Habermas’s philosophy took a “linguistic turn.” The idea of communicative reason now allowed him to overcome previous aporias by orienting his thought to a “proceduralist” concept of critical debate that would no longer assume any substantive definition regarding identities, values, standards, and the like, thereby leaving the actors freely to resolve those question. This formalism, notwithstanding, would not lack normative content. Procedures themselves can and must be publicly validated according to universal norms. Thus, by stating the necessity of providing a rational justification to his proceduralist concept, Habermas prevented it from becoming a mere immunization strategy that would place its basic postulates above public judgment and critical inquiry (thus turning it into a version of “new conservatism”). On the other hand, by keeping the debate within the boundaries of strictly discursive transcendental conditions, he guaranteed the universality of the norms against which the diverse possible opinions have to be assessed and justified.10 Thus, “Hegel’s con-

10. Thus, Habermas positioned his concept between the two opposite possible reactions to modernity. On one extreme, we find those like “Dilthey, Weber, Jaspers and Kolakowski” who “take an affirmative position on the growing pluralism” and, in doing so, carry “the burden of self-referential, pragmatic contradictions and paradoxes that violate our need for consistency.” On the other, we see those like “the early Wittgenstein, Popper, and Apel” who “attempt to maintain, at a higher level of abstraction, the unity of reason, even in only a procedural sense” by resorting to “a foundationalism that conflicts with our consciousness of the fallibility of human knowledge” (Habermas, 1991b, 193).


Crete universal [Sittlichkeit] is sublimated into a I:.ommunicative structure purified of all substantial elements” (p. 228).

The danger, however, implicit in aspiring ro both universalism and fal- libilism lies ultimately in his theory’s not bein;:: either one or the other, of its becoming a kind of empirical a priori, both contingent and not subject to critical assessment. As Karl-Otto Apel remarl: s, pragmatic-transcendental conditions are, by definition, not falsifiable; prc cedures, as such, are always presupposed; particular forms of them can be eventually debated and criticized, but this latter debate, in turn, entails certain procedural norms that cannot be discussed from within the given forn, of publicity, and so on. On the other hand, insofar as Habermas’s theory has normative aspirations, sooner or later he must translate illocutionarii assumptions into proposi- tional contents; but, at that point, they can no longer pretend universal validity (Apel 1992). In short, Habermas’s disccurse theory risks becoming a mere absolutization of transient phenomena. PI voiding this outcome is the central object that fuels his subsequent intellectual production.

Habermas’s linguistic turn should be inscribed within the frameworks of this concern of his. It allowed him to distinguish critical reason from the empirical forms of public debate in advanced capitalistic societies. Since The Structural Transformation, one of Habermas’s basic motifs was what he then called the “re-feudalization” of the public sphere-that is, its colonization by a system-oriented rationality. Public, t hen, became a gathering of passive consumers of commodified ideological products. His theory of communicative action was aimed at distinguishing between rational judgment and mutual understanding reached through a coercion-free process of opinion and will formation on the one hand, and t i e diverse forms of coercion and manipulation of consensus (pseudoconsensus) by systemic interventions aimed at the system’s self-reproduction on the other. The incorporation of this latter consideration, however, far from resolving the problems raised by his concept of public sphere, made them even more acute. As we saw, in The Structural Transformation of the Public Spl-ere, the issue of the legitimacy-or not-of public institutions was defini:d in terms of the opposition between consensus and coercion. The introduction of the idea of a “manipulated consensus” or “pseudoconsensus,” which involves forms of “ideological coercion” (the basic form of coerci1.m in postcapitalist societies) makes things much more complicated insofar as it tends to detach legitimacy from justice, de fact0 acceptance (so&le ( kltung) from idealized validity (Giiltigkeit).

At this point, Habermas must provide criteria to clearly discern the valid from the nonvalid forms of publicity, corn msus from pseudoconsensus, communicative achievements from system-ind iced judgments.’ However,

11. According to some authors, the counterfactual tiature of the illocutionary binding force of speech acts leads to seeing any form of consent reaching (even those systemically


it now becomes crystal clear that these criteria, whatever they were, cannot be obtained through public deliberation, since it can be systemically induced, and assessing this is precisely what is at stake here. Again, in order to avoid an infinite regression, he has to posit these criteria as relatively trans- parent, that is, immediately graspable-or at least accessible-through nondiscursive means.

As in the Mill/Tocqueville case, this postulate results from the necessity of producing a metacritical closure at a given level that breaks the cycle of “opinions” and relocates debate on rational grounds. In The Structural Transformation of the Public Sphere, Habermas justified this by endorsing the idea of “a natural basis” of humankind. His entire concept of public sphere rested on this assumption. In The Theory of Communicative Action, the notion of lifeworld (a notion that Habermas borrows from Husserl), by providing the model of a communicative transparency, played this same role as the self-evident ultimate ground for his theory. It is at this point that Habermas’s “genetical concept of morality” departed from its original source, Piaget’s ideas, to endorse Kohlberg’s proposition ( 1987) that “egalitarian reciprocity” is intuitively (precritically) known in everyday life. Otherwise, Habermas should have to accept not only that substantive claims, as he insists, are necessarily context specific, but also, as Luhmann emphasizes, that the very notion of what a “fair,” uncoerced dialogue (the discourse principle) is cannot be established from outside a given institution that sets the parameters of “reciprocity” (i.e, that there are no “social relations in general,’’ as the notion of lifeworld suggests or assumes). But in resorting to a postulate of a phenomenological matrix (the idea of the self- evidence, for the intentional consciousness, of the premises of egalitarian reciprocity, the Habermasian corollary of the Husserlian notion of Iifeworld), his entire discourse theory comes to rest on a nondiscursive foundation that, as such, cannot be accounted for within its own categorical framework.12 Fakti~itiit und Geltung would make the consequences of this aporia manifest; but it would also reveal more clearly that the ultimate source of this aporia lies in problems of a not strictly epistemological nature, but ones involving mainly politico-practical questions.

induced) as, counterfactuully, normatively grounded. In this fashion, as Ape1 states, “one might even reach Rossvaer’s macabre thought . . . [that] the SS at Auschwitz could have followed Kant’s ‘categorial imperative’ in their own way, i.e., according to the application rules of their ‘form of life’ and ‘customs”’ (1992, 151).

12. Thus, we could say of it, mutatis mmtandi, what Jacohi said of Kant’s critical philosophy: “I need the assumption of lifeworld to enter the Hahermasian system; hut with this assumption it is not possible for me to remain inside it” (Jacohi 1812, 2:304).


LAW: THE EMPIRE STRIKES BACK

As we saw, for Habermas, Luhmann’s con iept contained extreme conservative conclusions, since it made unthinkable any criticism of the existing status quo. Habermas’s distinction between the two levels of discourse provided a ground transcending the de facto social formations from which these could be criticized. The “natural basis” (of communicative rationality supplied Habermas the yardstick with respect t:) which the validity of actual forms of publicity could be assessed. Howeve:, this implicitly bore potentially “anarchist” consequences: despite their keing postulated as an “inevi- table” and “irreversible” outcome of social evolution, legally established institutions, conceived as the result of the systvmic colonization of lifeworld, necessarily appeared as irredeemably tainted WI th illegitimacy. In any event, as in seventeenth-century England, it sufficed 1.0 oppose the corpus jictum of communicative rationality (justice, counterfac ricity) to the corpus verum of systemically established power relations (legiti nacy, facticity) to render legitimate any insurrection. Having establishe 1 this distinction of levels, Habermas had then to reconcile them.

This is precisely what he tries to do in B(:tween Facts and Norms. The notion of Rechtsstaat serves in it as the bridge that links coercion and validity, allowing Habermas finally to combine and reconcile both constituent aspects of any institutionalized social order, ncrmativity and facticity. The legitimacy of a legal code would now involve coercion and, at the same time, would link coercion to a validity residing in the transcendental conditions of the very processes of consensus reaching. This is what he calls, following Peirce, “transcendence from within.” However, this concept brought para- doxical consequences. It both entailed public debate as the only legitimate source of every legal order and excluded public deliberation on the level of the basic premises of this very legal order (wnich would comprehend not only “procedural” norms, but also substantive moral claims). Habermas explains this paradox in his reconstruction of wh: it he calls the “logical genesis of rights.”

In their logical genesis, Habermas disi inguishes five categories of rights: First, rights for securing an individual’., greatest possible autonomy; second, rights derived from the status of mem 3ers as voluntary consociates under law; third, rights for the actionability of individual legal protection. These three types of rights are mere applicatic Ins of the discourse principle to the legal medium; they regulate relations ai nong consociates, that is, individuals joined together in a voluntary associ; tion previous to the erection of state authority. Thus, these rights secure private liberties, not against state interference (which did not appear yet on the scene), but only through and for mutual recognition among the associal-ed members. For these to become legal authors (law makers), a fourth catc:gory of rights ensuring equal


participation in the process of opinion and will formation (the democracy principle) must be added. Finally, a fifth category (welfare rights) must guarantee those basic living conditions (social and ecological) that make equal political participation feasible.

It is not clear what the status of these categories is-whether they are merely procedural norms or they already involve substantive claims. It seems that they are both. Categories as such would be purely procedural; only the process of filling them with a specific normative content would turn them into substantive principles of justice. As such, they relate to validity claims “still indifferent to the distinction between morality and legitimacy.” In any case, this means that they cannot be the subject of public deliberation, which always presupposes them as its premise: law is the medium through which all debate can take place (p. 126). Thus, the very possibility of critical reasoning at one level becomes its denial at another. What Habermas calls the discourse principle (D) incarnated in these “categories of rights”-egalitarian reciprocity-would not be itself a discursive construc- tion. As he says, “the moral principle results only if equal consideration is given to the interests of all those who are possibly involved” (p. 108, emphasis added). The key word here is interests: the core notion of egalitarian reciprocity should then be related to “interests,” not “will.” And this is necessarily so because, at this level, there still cannot be “will”; “will” is not the premise but the ending term in the logical process of the genesis of rights, as described by Habermas. The constitution of the law is, ultimately, the very intersubjective process of the formation of subject identities. Thus we get Habermas’s notion that law and subject identities are equiprimordial. Postulating otherwise would involve assuming the existence of a preconsti- tuted “will” antedating its own intersubjective conditions of possibility; that is, a relapse into the “philosophy of the subject.” The point that here obviously arises is who will decide (and how) what the interests of “all those who are possibly involved” are.

Here Habermas’s “discourse theory of law and democracy” actually in- herits a contradiction intrinsic to discursivity. Discursive reason, as defined in Theory of Communicative Action, excludes radical contingency, since this would break the assumption of the transparency and self-evidence of its foundations-which would generate, as we have seen, an infinite regression. But this concept simultaneously presupposed radical contingency: in a world of self-evident truths, or at least, one in which truth is potentially accessible, discursivity would become unnecessary, turning the process of decision taking (on a metacritical level) into a merely theoretical-epistemological endeavor-which would return us to the idea of the philosopher king.

So far, Habermas’s theory of law and democracy merely reproduced a contradiction already contained in his discourse theory. His notion of the


“empire of law” adds now a new problematic. instance in it. The crucial point at stake in the elaboration of Between Fiicts and Norms concerns not the definition of those aforementioned “catego -ies of rights,” but what happens once this assumed abstract grid is filled with substantive claims (i.e., when a legal code takes a positive shape). At that point, Habermas says, legal subjects give up their right to use coercic.n, transferring it to the legal authority. The only right they conserve is the right to renounce their mem- bership in the given community, that is, the nzht to emigrate (pp. 124-25). This means, in short, that to those who dis:igree with the given order, Habermas concedes the option to a “volun: ary” exile; not taking that chance should be understood as one having gi,ien one’s tacit consent to the given institutional status quo. In both cases (ex ile or permanence), the legal code itself could not be questioned; self-legislai:ion, he insists, must be, and can only be, realized through the medium of lav, (p. 126). This explains why Habermas does not see any contradiction betv, een the principle of popular sovereignty (the democracy principle) and thai- of the intangibility of law: rights, in his concept, are “enabling conditiorrs, and, as such, they cannot restrict the legislator’s sovereignty, even though they are not at hislher disposition” (p. 128, emphasis added). As he shows, rights are enabling conditions of public debate and, as such, reside above it, are located out of its reach. They represent the limit notion (the conditio II of possibility-impossibility) of discursivity. The point is that this limit put to deliberation now compre- hends substantive claims, that is, particular, coiltext-bound (and not merely procedural) principles of justice.

Thus, by identifying rights and communicative rationality at a higher level of abstraction, Habermas prevented the “anarchist” potential consequences of his previous distinction. But, in dcring so, his idea of a “radical democracy” acquires a rather Burkean tone, close to his former contender, Luhmann. Habermas simply reintroduces, in R;)usseauean dress, what Hegel once denounced as the “positivity of law”-th : idea of it as placed beyond the reach of human action. Thus, he blocks the way to any metanormative debate that would have led him to an infinite regression; but, in order to do so, he ends up confirming Carl Schmitt’s princi ple that the basic premises of a constitution are irreformable (1998), which in the ultimate analysis de- molishes the assumed neutrality of law regardi ng values. And this forced a series of correlative, theoretical adjustments. In effect, so far Habermas’s “discourse theory of law and democracy” ot ily reproduced the kind of metacritical closure that we have observed in his dialogical concept. Now, by incorporating the legal medium within the premises of his notion of communicative reason, he expands the realm of the “undecidable”-that which escapes from critical assessment through society’s mechanisms of consensus reaching-from procedures to substant ive principles of justice and moral judgments. The counterpart of this expanded indeterminacy of his


sociological concept is a concomitant expansion of the foundationalism of the basic premises of his theory. At this point, and in order to ground his concept, Habermas has to place, not only law, but also his own theory above contingency, “naturalizing” its fundamental assumptions.

As Habermas knows, the “categories of rights” he discovered are, in fact, historical constructions; according to his own telling, they appeared successively in the course of the last four centuries. These categories, therefore, are historical achievements; but, according to him, this does not mean that they are contingent formations, nor do they reflect merely cultural- specific modes of consciousness. At work here is a Hegelian-like hidden premise: In order to translate the alleged illocutionary assumptions inscribed in communicative action into substantive contents, Habermas has to con- struct modern history as a kind of phenomenology of his discourse concept. Yet, this is not enough. As he knows, in order to justify the universal validity of his claims, he must also postulate, like Hegel, that “development has reached a certain conclusion and that essential new changes are out of the question” (Habermas 1979, 17). And, in effect, he thinks that “two hun- dred years of European constitutional law have provided us with a sufficient number of models . . . . ; the content of constitutional norms is relatively fixated” (p. 129). These norms can be eventually modified, but “essential new changes” are, for him, “out of the question.” In short, if the “categories of rights” he defines in his theory are to be placed above time and space, Habermas must also place the premises of his own theory above contingency and postulate them as a part in a historical dialectic of the self-discovery of the communicative potential of the structures of intersubjectivity encapsulated in the processes of social reproduction.

Thus, Habermas illocutionarily contradicts his own discursive premises, falling prey to the first horn of his trilemma (vid supra): resorting to a teleology of history in order to find in it the contents of practical reason. To a phenomenological assumption he now juxtaposes a historical foundation, which returns him to the kind of philosophies of the subject he wanted to escape. In any case, his solution can hardly be seen as “overcoming” the traditional oppositions of modern political philosophies. Habermas’s modus operandi is actually uggregative (individual rights + democratic rights + welfare rights + . . . ), rather than integrative. In his idea of the logical genesis of rights, there is no real interpenetration of levels, but rather mere overlap- ping. His way to conciliate and overcome traditional antinomies is subordi- nating (in different ways, at different levels) one of the terms to the other. In Between Facts and Norms, the way that Habermas solves the contradiction inherent in the modern notion of the citizen consists of a mere inversion of the very method he attempted 30 years earlier in The Structural Transformation. In this, by identifying the figure of the citizen with its exclusive character of subjecturn of the law, he simply erased the tension implicit


in it due to its inseparable double nature as si.:bjectum and subjectus (terms that simultaneously contradict and entail each other). The same happens in Between Facts and Norms, but this tension is now diffused in an opposite way: now the citizen-subjectus completely subordinates its being-subjectum. But what makes this last conclusion seem more shocking is the fact that it is not fully warranted by the fundamental axioins of his theory. Up to that point, Habermas could be considered, as he states at the end of this book, “dogmatic only in a harmless sense” (p. 446). The metacritical closure produced at the level of the basic premises of his discourse theory was still consistent with his previous philosophy and derived from its demands of internal coherence (as happens with all theor y ) ; this is not the case of his last conclusions (the true novelty in this book: , which makes it sound more like a kind of sentence (krisis) than a true theoretical insight.

In actuality, this last conclusion does n,It necessarily contradict the major discourse-theoretical premises that pre:: ided over the elaboration of this book (the idea of Rechtsstaat gives it its internal coherence); but that conclusion does not follow logically from the,ie premises, coexisting in his work with other different-and even oppositv-possible orientations open to his discourse theory considered as a “research program.” At certain crucial instances, the tensions present in this book become manifest and can be obliterated only through rhetorical means. The following quotation is a clear example of this:

Only in an egalitarian public of citizen’, that has emerged from the confines of class and thrown off the millennia-old shackles of social stratification and exploitation can the xential of an unleashed cultural pluralism fully develop-a potential that no doubt abounds just as much in conflicts as in meaning-generating forms of life. But in a secularized society that has learned to deal w th its complexity consciously and deliberately, the communication ma stew of these conflicts constitutes the sole source of solidarity among strangers who renounce violence and, in the cooperative regulation of their common life, also concede one another the right to remain strangers. (P. 308).

In the first part of this paragraph, where Hatermas introduces a definition of factual social relations in terms of exploitctr/exploited, we can still hear the echoes of his young, “substantively” mole radical posture. In the last part, the definition in terms of exploiter/expIoited does not disappear, but becomes “anthropologized” and turned magically into the less conflictive notion of “strangers.” However, this rhetoric a1 solution is precarious; it is enough to recollocate its original definition n the place of the last term, and not only the conservative character of hi: recent philosophical orientation but also how implausible (poorly theore I ically grounded) this orientation is within the frameworks of his own discursive system will become


immediately evident. In this case we will obtain the bold statement (para- phrasing the former quote) that “the communicative mastery of these conflicts constitutes the sole source of solidarity among exploiters and exploited-exploiters and exploited who renounce violence and, in the cooperative regulation of their common life, also concede one another the right to remain exploiters and exploited (respectively).”

It is clear that, at this point, Habermas has to opt: either to renounce any kind of “substantive” consideration (in which case, his philosophy would become a plain endorsement of status quo), or to revise his notion of law as neutral and the medium through which to define identities-in which case, its normativity would subordinate its positivity. Either way, it seems there would be no way, within the context of his philosophical program, to conciliate both contradictory orientations. Yet, both are possible outcomes of it as a “research program”; and its actual development in one sense or the other is not given in advance, nor fully theoretically deter- mined. A series of precise historical circumstances intervened in Habermas’s getting at the category of law as the postulated point of suture of his philosophical system.

CITIZENSHIP AND NATIONALITY

Between Facts and Norms took form in the midst of the process of Ger- man unification, which occurred in a rather complicated situation. On the one hand, the prospect of a European Union seemed to indicate a historical trend toward the overcoming of traditional national identities. Simultane- ously, however, nationalist movements then erupted, first in the Middle East, and then all over Europe. For the first time after the immediate post-WW I1 era, the Germans began to witness the development of a process of civil war right at their doors (in the former Yugoslavia). In this context, Habermas developed a view of the near future close to what Huntington described as the “Clash of Civilizations” (the idea that the post-Cold War global politics would be dominated by the struggle between the “West,” characterized as modern, liberal, and democratic, and the “Rest,” which Huntington defined as traditional, theocratic, and authoritarian)( 1993). The Gulf War was, for Habermas, its first prefiguration; the alliance that was then forged “could signal the beginning of a new universalist world order” (1994,8ff) (a hope, as he recognizes, “born out of desper- ation”) (p. 444). However, Huntington’s concept still relied on heavily “culturally” burdened categories. ‘Citizenship and National Identity” (Habermas’s earlier text included in Between Facts and Norms) reveals how his view of the world situation later twisted to catalyze Habermas’s recent philosophical reorientations.


As “Citizenship and National Identity” shows, Habermas’s development of the notion of “the empire of law” h:is its roots in an attempt to contend the nationalist upsurge, which when the escalation of violence in Bosnia was at its height threatened the stabi’ity of the whole Continent. Then, Habermas departed from the Rousseaue in concept of individual self- determination in order to distinguish between citizenship and nationality. The line of reasoning he follows to get this pa madoxical conclusion is some- how sophisticated.

According to him, “the national state sus rained a close connection between ethnos and demos only briefly. Citizenshi ? was never conceptually tied to national identity” (p. 495). For him, the introduction of the modern concept of citizenship broke the substantive n..odes of social identity proper to prepolitical societies and defined an unse :n and more comprehensive system of social conviviality, organized around a juridical-political framework, which is strictly formal in nature. Thus, he stated, in the long run, republicanism and nationalism contradict eac:h other, since they are based on competitive forms of collective identity; “citizenship (Staatsbiirger) and cosmopolitanism (Weltbiirgerschft),” he said, “form a continuum which is nowadays becoming broadly outlined” (p. 1 46). However, asserting this principle involved the paradox of affirming th 2 existence of a contradiction not only between citizenship and nationalisn L but also between individual self-determination and democracy. Cosmopol itanism could be defended as an ultimate goal (one, perhaps, still inscribed ‘ n the very concept of citizenship), but it could not be used as a rebuttal t;) claims to self-determination by national minorities, provided that this w; s the will of their individual members, without contradicting the principl 2 of individual autonomy on which the notion of citizenship is founded. It is then that Habermas goes back to his notion of a discourse theory in oder to justify his opposition to the principle of national self-determination and solve the aporias that this seemed to pose to him (“in my previous puldications,” he retrospectively complains, “I have not sufficiently distinguished between the discourse principle and the moral principle”) (p. 108).

As Carl Schmitt remarked, social-contr;. ct theories lacked a principle to define collective identities (the “We, the people” that every constitution invokes); yet, they always presuppose one. Discourse theory would provide a foundation for this different from that of romantic nationalism. While ro- manticism opposed the assumption of a preexisting national community to the social-contract theory, Habermas breaks the circularity between autono- mous will and political institution by referring the two to their assumed common ground in the intersubjective structures of communicative action. However, one more step still remained necvssary to close the gap in the social-contract concept. And this, although relatively short, was not logically followable from his discursive concept. It consisted of identifying that


assumed universal rationality inscribed in communicative exchange with international law. Only such a transposition can serve as the basis for a more potent notion of “citizenship,” one that is abstract and substantive at the same time, a new mode of defining collective and individual identities that is morally binding but not culturally burdened. This finally allows Habermas to support the allied forces during the Gulf War (and indeed justify the massive bombing of the civilian population). According to his concept, that war was not, properly speaking, an expression of a cultural clash, since for him, the defense of international law relates to values and moral principles that are transculturally valid and “in complete harmony with the normative substance of the great world-historical prophetic doctrines and metaphysical world-views’’ (1994, 20-2l)(including Islamism). In short, in order to justify the defense of the international order on the basis of universalist norms, Habermas had to detach the idea of a struggle between “the West” and “the Rest” from its original “cultural” framework and redefine it according to a strictly politico-juridical system of reference: “the West” now becomes, for him, all those that, both in the West and the East, defend the international order, and vice versa; “the Rest” becomes all those who challenge that order.

Thus, insofar as the struggle between “the West” and the “the Rest” is no longer an international or intercultural one, but inherent in any political formation, the question of the rights of national minorities to challenge the existing institutional arrangement (which Habermas definitively rejects) becomes encompassed within the broader issue of the right of resistance to oppression in general (the ultimate political problem). Nevertheless, its origin in Habermas’s thought-which must be traced back to his ardent defense of international law and the presently threatened world order- explains his present radical distrust of the principle of self-determination in all its forms. This clearly conservative turn in his philosophy is ultimately linked, as many authors have already remarked, to an attempt to turn his theory into a kind of ideological sustainer of the German Federal Republic, which now appears to him as a realization of a universal value, an incarna- tion of “Hegel’s concrete universal [Sittlichkeit] . . . purified of all substantial elements” (p. 228). “The irony,” says Max Pensky, “is that Habermas has become the intellectual of the Federal Republic by consistently championing those universalist democratic political ideas that seek to oust Germany’s long-held and calamitous fascination with characteristically German forms of collective national identities” ( 1995, 68-69)(hence Habermas’s present emphasis in detaching citizenship from nationality).

Hitherto, Habermas’s differences with Luhmann were more political than theoretical. A t this juncture, they have become more theoretical than political. But, from a theoretical point of view, Habermas’s conservatism is more shocking and looks more arbitrary than Luhmann’s, insofar as it is not


warranted by the premises of his own philosophical system. Going back to our original point, what we see is that, in radically impugning any right of insurrection against established institutional crder (adopting a weakened, Rawls-like, definition of it as “civil disobedif-nce,” which is already inscribed within the frameworks and institutiol-tal channels of the existing legal norms),13 he contradicts, as he affirms in the preface of this book, the alleged “anarchist” consequences of his theon, .

But this outcome cannot be seen as inscrilied in his rationalist assumptions; to do so would be just as simplistic as attributing to irrationalism, as Habermas pretends, the monopoly of the “r ew conservatism.” Actually, with Between Facts and Norms, Habermas does something more than contradicting the idea of the “anarchist” implicat.ons of his theory. He also performatiuely contradicts one of his fundament a1 dichotomies in the system of his clear-cut oppositions: that rationalism is inherently democratic-and, conversely, that “its other” (irrationalism) is inherently authoritarian. As his own intellectual career shows, rationalism (and the same can be said of irrationalism) can serve as the basis of both r: kdical-democratic and clearly conservative concepts (the Frege/Heidegger cc ntroversy regarding Nazism is another example of this). In any case, this renders evident the fact that there is no logical (necessary) relation betweei t those (philosophical) premises and their eventual ideological conclusior s; that connecting them involves an interpretive effort in which both thi:oretical and extratheoretical factors always play a role. In a final analysis, viith Between Facts and Norms Habermas overturns not only his previous radicalism, but also one of the fundamental premises that gave birth to the rationalist tradition in classical Greece. As we saw, the rationalist tradition ‘ias its origin-at least, from Foucault’s view-in the process of detachmei.~ of truth from power, which made conceivable the idea of the “right of in iurrection” (although also its opposite: that of the philosopher king). By affi -ming the priority of the legal instance as the medium for the definition of c,.)llective identities, Habermas rejoins truth and power (they become, in his own words, equiprimordial), thus eliminating (at least, for postcapitalist social formations) the figure of the tyrant-and, consequently, the correlative right of resistance to oppression. But only the specific combination of his given philosophical framework and the peculiar historical conditions present at the end of this century explain the particular twist that Habermas’s thought ti as taken with the publication of Between Facts and Norms, making this book the third landmark in his intellectual career.

13. In chapter 5 of his A Theory ofJustice (1971), R iwls sets a series of conditions for the right of “civil disobedience” to be legitimately exerciseci, which can be condensed, basically, to the respect for constitutional norms.


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