Agreeing what’s right
- Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats by Jürgen Habermas
Suhrkamp, 667 pp, October 1992, ISBN 3 518 58127 9
On 9 November last year, the anniversary of Kristallnacht, the philosopher Manfred Frank was invited to give the principal address at the memorial service which is held annually in the Paulskirche in Frankfurt. The Paulskirche was the home of the first democratically elected German national assembly, which flourished briefly amidst the revolutions of 1848-9, and, in keeping with this setting, Frank refused to limit himself to a ‘retrospective ritual of mourning’. Rather, he used the occasion to consider contemporary events in Germany, in particular the rise of a violently xenophobic right-wing element, whose activities claimed 17 lives in 1992, and the reaction of the established political parties to it. Central to this reaction has been the attempt to limit the right of political asylum enshrined in Article 16 of the Grundgesetz, the German constitution. The provisional agreement reached between the main political parties on 6 December 1992 foresees abolishing this right for applicants arriving from an EC country or from any ‘safe third country’ deemed to have satisfactory asylum procedures of its own. Since Poland and the Czech Republic fall into this category, these measures will effectively cut off the flow of applicants, the vast majority of whom reach Germany by land.
Frank suggested that in Germany an ethnic rather than political definition of the nation, and an excessive concern with national unity and security, had repeatedly overridden the protection of individual freedoms, and had hindered the development of an appropriate conception of democracy: ‘The predominant conception of the essence of democracy is expressed in the demand that politics should bow to pressure from the streets.’ To illustrate this he quoted leading protagonists in the current Asyldebatte from both the Right and the Left. He then reached for a shocking comparison: ‘Goebbels’s populism invented a fitting jingle for what happens when one adapts to the unqualified feelings of the populace: “Our thinking was simple, because the people are simple. Our thinking was primitive, because the people are primitive.” ’ At this point many members of the audience, including the entire Christian Democrat contingent, walked out. Subsequently, all the parties in the Frankfurt Parliament (including the Greens) repudiated the speaker, and the furore occupied the local press for a fortnight afterwards.
These events illustrate the drawback of one possible interpretation of Faktizität und Geltung, Jürgen Habermas’s new book on the philosophy of law and the theory of the constitutional state. Under the headline ‘Jürgen Habermas makes peace with the constitutional state’, a pre-publication review in Der Spiegel sought to present the book as an old leftist’s recantation in response to the collapse of Communism, and his belated return to the fold of liberal democracy. But one of the deepest motivations of Habermas’s work has been an anxiety that the institutions and practices of the modern democratic state may not be sufficiently firmly anchored in the traditions of German thought and politics. He is convinced that the emancipatory potential of such a state needs to be defended against the powerful current in German philosophy and culture which views democratic ideals as – at best – helpless before, and – at worst – a positive symptom of, the spiritual desolation of modernity. It is not surprising, therefore, that Habermas should have sprung to Frank’s defence. In a highly combative article in Die Zeit he denounced the German government’s increasing tendency to contemplate altering, or simply bypassing, the constitution, for the sake of Germany’s self-assertion as a ‘normal’ nation-state. This ‘D-Mark patriotism’ is, in Habermas’s view, an attempt to compensate for the ‘normative deficits’ of a bungled reunification process, with its disastrous social consequences, particularly in the East. He repeated the argument he has made before: instead of what amounted to an administrative incorporation, through provisions contained in the Grundgesetz of the old Bundesrepublik, the reunited Germany should have had the opportunity to conclude a new ‘social contract’ in the form of a new constitution.
Vol. 15 No. 11 · 10 June 1993
I don’t feel rash about developing a debate about Jürgen Habermas’s latest work (which I haven’t read) from Peter Dews’s review (LRB, 13 May), given Professor Dews’s record as the UK’s most sensitive Habermas-watcher. But there’s a big hole at the end of his piece which everyone interested in advanced social theory should jump into urgently.
To recap briefly: Dews’s critique of Habermas’s new, more law-based theory of social development finds a ‘philosophical space’ in his argument that must be filled. This would connect individual ‘justice’ (which a more sophisticated and Habermasian rule-of-law would bring) with collective ‘solidarity’ (needed to prevent excessive atomisation and social fragmentation).
This space should be filled, says Dews, with ‘enquiries into the fundamental structures of the human form of life’ – the ‘archaic, binding energies’, in Habermas’s words, which might sustain ‘expanded, cosmopolitan solidarity’ (in Dews’s words). We are further urged by Dews to ‘explore what is essential to the integrity of human life-forms in general’. This exploration might help us to say more about why we should be aiming for more social solidarity, without tying Habermas’s ‘steadfast, subtle universalism’ down to any too specific determination.
This is a very tricky operation. Isn’t science – biological, psychological, cognitive – rather than philosophy, the obvious foundation for ‘fundamental’ ‘essential’ structures of humanity? This whistling gap in social thinking has long been recognised by Noam Chomsky. As yet, there is no scientifically authoritative version of ‘human nature’ which we can potentially ascertain from our invariant physical structures (although Chomsky’s anthropocentric rules of grammar are a stab at this). Until we get this – a long way off – then Chomsky’s presumption of an ‘instinct for freedom’ is as valid about the fundamentals of specics-humanness as anyone else’s (and, incidentally, provides an inexhaustible fuel for his critique of all present systems of power and money). Dews’s comment about Habermas’s notion of the solidarity-enhancing ‘lifeworld’ being at core an ‘anarchistic’ notion is a distant echo of Chomsky’s position.
But appealing to science, in these relativist times, as an anchor for one’s social theory, is like shopping in Safeway’s. So many plausible tastes on display! Some sweet and conducive to processes of solidarity (Dennett, Searle, Penrose, etc); some not so sweet in their implications for notions of ‘human nature’ (Eysenck, some socio-biologists, some MIT ‘meat-machine’ pronouncements). Habermas hasn’t been slow in the past to lean on the findings of experimental scientists, particularly Kohlberg and Piaget in developmental psychology. That’s OK – but should we see this as anything other than a social theorist’s opportunistic grab (no ignominy: they all do it) at a scientific brick for that pesky hole in the conceptual wall?
And isn’t this a space we should be wary of filling anyway? Habermas the German would need no reminding of how science has been employed to justify dreadful ‘fundamentals’ about humanity. Yes, those on the Left could employ such scientific knowledge tactically, as a component of an argument to help shift the consensus of our public spheres. But others could invoke other sciences, underpinning different sets of ‘archaic’ energies – aimed at unbinding rather than ‘binding’, fascist rather than socialist.
Perhaps nothing more dangerous than the next few turns of philosophical discourse will be needed to complete Habermas’s inspiring scheme. But I think we need to dwell on Jürgen’s old Sixties saw – science as ideology, science or ideology? – a little longer. Neo-Nazis may be waiting for a convincing chunk of scientism, defining the ‘essential human forms of life’, as ardently as we are. This is a dangerous space for social theory to gaze into hopefully. It could snarl back.
Vol. 15 No. 14 · 22 July 1993
In his/her response to my review of Habermas’s Faktizität und Geltung Pat Kane (Letters, 10 June) highlights the dangers of appeals to a substantive conception of human nature as a means of grounding a normative political theory. The dangers are far from illusory, but I would like to correct a misunderstanding in his/her letter, and also to suggest that the issue of substantive universals is inevitably raised by Habermas’s own position, however much he may try to defuse it.
First, I did not suggest that Habermas’s politics needed beefing up with a scientific theory of human nature. Rather, I spoke of the need for an exploration of ‘what is essential to the integrity of human life-forms in general’, so I had in mind configurations of social, cultural and interpersonal structures. Habermas’s own view is that the object-domains of specific sciences are only constituted by abstraction from the life-world which consists of these structures, in their lived, and constantly shifting, meaning. Accordingly the exploration of forms of life is a pre-scientific enterprise, whose approach would be phenomenological and hermeneutic, not objectifying.
Even once this is admitted, however, Kane raises two pertinent points. Do we have any reason to expect that there is anything common to all life-worlds? And how do we prevent a theory which claims to identify such universals from overriding the need for discussion? It is important to note that Habermas currently distinguishes between two basic functions of philosophy: one as a ‘stand-in’ or path-breaker for universalistic theories in the human sciences, the other as what he calls an ‘interpreter’, seeking to comprehend and integrate the various dimensions of a culture from within. This notion of ‘interpretation’ remains entirely undeveloped, however – the residue of Habermas’s formalism. One could ask why interpretation should be seen as a philosophical activity, unless it moves from culturally specific meanings to some general conception of their grounding. Philosophers are not just interested in what their own culture identifies as ‘nature’ or ‘art’ or ‘love’, vitally informative though this is, but rather in what these phenomena basically are. The constant return of philosophy to its own history suggests that such insights can be achieved, although they always remain open to new interpretations.
Furthermore, a philosopher may reach the conclusion that a society which systematically limits the opportunities for enjoyment of an unspoiled natural world, or for aesthetic experience, or for the development of loving relationships, is humanly deficient, however formally ‘just’ it may be. The fact that others may reach contrary conclusions does not automatically render this level of discourse invalid. Indeed, Habermas himself has recently admitted that such ‘ethical’ (i.e. qualitative) conceptions can be proposed, if universalised through the substantive notion of a ‘civilised world society’.
Such conceptions cannot be allowed to legitimate their own enforcement, however, and in this sense the primacy of ‘discourse ethics’ remains. But the need for a ‘fallibtlistic consciousness’, as Habermas calls it, can be stressed by undermining claims for a sure-fire philosophical method, without placing limitations on the content of philosophical reflection. To suggest that philosophers should avoid seeking to explore and depict the ingredients of emancipated or non-pathological forms of life (not ‘defining the “essential human forms of life” ’, as Pat Kane misquotes me) as a prophylactic against metaphysical delusions of grandeur seems to me to hinder excessively the relation between thought and social practice. It is precisely when a space is left open here by the imaginative failure of our most reflexive forms of thinking that a dangerous mishmash of science and ideology is likely to rush in to fill the gap.
University of Essex