Despite Max Horkheimer’s fear that he was “too left-wing” to inherit the legacy of the Frankfurt School, Jürgen Habermas has modernized the tradition of critical theory just as the original Frankfurters sought to modernize Marxism: by criticizing and thereby reaffirming in his own way the premises from which the founders began. This achievement has not always been understood by his audience, despite a remarkable series of successes, each one crowned by a theoretical work of synthetic breadth and theoretical depth. Typical was the case of the book that was his Habilitationsschrift in 1962, Structural Change of the Public Sphere,1 which joined American sociological research with German philosophy and Enlightenment politics to create the notion of a “public sphere,” whose emergence, ripening, and potential withering Habermas traced. Although this work has come to be recognized as a fundamental contribution to democratic political theory, Habermas had to leave Frankfurt for Heidelberg in order to receive university recognition for it. Even though he would later modify some of his theoretical claims, he never renounced what he already called the project of enlightenment, in which understanding comes about through engagement in the public space.
Ever the public intellectual, Habermas published a collection of his early essays under the title Theory and Practice (1963),2 placing himself squarely in the tradition of Western Marxism, for which neither theory nor practice can be understood in isolation from the other. This was a reaffirmation of the older Frankfurt tradition that the first generation had abandoned and the younger generation of students who would become the new left tended also to reject—although the older group took the side of theory, the younger that of practice. Habermas would abandon neither. But it was with the younger generation that the public intellectual soon found himself in conflict—with its theory (such as it was) and especially with its practice. For the representatives of that generation, Marxism was a theory that was supposed to offer the basis of a positive recipe for social transformation, whereas Habermas’s long essay on Marxism, written in 1957 and published in the German edition of Theory and Practice,3 stressed that it can be understood only as critique. As for their practice, Habermas saw in it only an illusory revolution or the illusion of a revolution (Scheinrevolution); participating in one of their congresses in 1968, he even went so far as to denounce a “left fascism.”4 The same year, Habermas published the first systematic synthesis of his vision of critical theory. Its title, Knowledge and Human Interest,5 expresses his insistence that knowledge is not the possession of a neutral, disincarnated spectator: its acquisition is guided by the practical interests of the active subject.
With the death of Adorno in 1969, Habermas (who had become quite friendly with Herbert Marcuse) was the uncontested master of critical theory. He became the director of a research institute in Starnberg and assembled there a talented and diverse group with whom he began the work of solidifying critical theory into a social analysis with empirical consequences. The political climate in West Germany was bitter, polemical, and at times paranoid; the legitimacy of the institute was soon challenged. Habermas took it upon himself in 1973 to synthesize the diverse research projects that had been undertaken, presenting his results in a book entitled Legitimation Problems in Late Capitalism.6 Whereas Knowledge and Human Interest had pinned its critical hopes on an “emancipatory interest” that produces a kind of knowledge that neither is instrumental nor aimed simply at social adaptation but is liberating in the same way that psychoanalytic knowledge frees the subject from internalized fetishes, the new book looked to social interaction for its critical foundation. Habermas distinguishes four potential types of crisis that can and indeed have affected capitalist society: economic, administrative, motivational, and legitimatory. Capitalism can be said to have entered its late phase when it has worked through the first three of these crises. Legitimation, which neither concerns individual motivation nor reflects contradictory systematic imperatives rooted in the economy or the state, is the critical social resource that capitalism cannot reproduce on its own.
This empirically based analysis of the source of capitalist crisis needed a theoretical foundation, which Habermas provided in the two-volume Theory of Communicative Action (1981).7 The linguistic turn proposed in this two-volume reexamination of the foundations of critical theory had been foreshadowed by the shift from the emancipatory interest of the individual to the social interactions that resulted in a crisis of legitimacy. While some were unhappy that in this new synthesis the philosopher seemed to have overcome the social theorist and the moralist had replaced the political thinker (as the analytic philosopher triumphed over the continental theorist), Habermas drew other conclusions and turned to other projects. He dissolved the institute at Starnberg and returned to teach in Frankfurt.
More than a decade later Habermas published Between Facts and Norms (1992).8 The book’s subtitle clarifies its focus: it offers “contributions to a discourse theory of law and democracy.” Although the original Frankfurt School had included two legal theorists (Franz Neumann and Otto Kirchheimer), their work remained on the theoretical periphery of the prewar production of the Frankfurt School. After the war, when both remained in the United States, their work did not become an essential part of the arsenal known as the Frankfurt School, whose works were becoming well known in the 1960s through pirate editions that were made necessary by the refusal of Horkheimer to allow reprints.9 While left-wing jurists in West Germany did publish a serious journal called Kritische Justiz, it was not seen as an organ of Frankfurt-style critical theory. What is significant in Habermas’s latest venture is his attempt to use the “discourse theory” developed in the study of “communicative action” in order to contribute to both law and democracy, whose interdependence recalls the earlier concern to unite theory and practice. This new project is all the more provocative because the downfall of what West Germans had come to call “really existing socialism” occurred while Habermas was working out his theory. Although he includes one appendix dating from 1990, Habermas’s project seems to have been unaffected by these events, which, one would have thought, influenced the received understanding of the nature of both democracy and law—particularly for someone who, like Habermas, had always identified himself as a Social Democrat concerned with the development of what he theorized as the public sphere.
Habermas did publish essays on the great changes that were taking place—changes that he did not hesitate to label “revolutions.” He collected a small volume of his essays in 1990 under the somewhat odd, perhaps condescending title Die nachholende Revolution.10 The title essay, which suggests that these revolutions were seeking only to “catch up” (nachholen) to the West, claims that Eastern Europe has only to realize the enlightened ideas that were put into practice at the glorious dawn of 1789. (These “ideas of 1789” are the object of a second appendix published in Between Facts and Norms.)11 Habermas’s prescription is not surprising: he admitted in an interview with the Polish former dissident Adam Michnik that he had never written on communism or even on Stalinism because he did not think they were important.12 Despite this lack of interest, the essay was concerned with more than just the “catch-up revolution”; its title refers also to “the need for a revision by the left.” That revision concerns in particular the fundamental place that must be given to both democracy and human rights in the theory and practice of those who partake of the legacy of “the ideas of 1789.” Habermas insists that these basic demands can be realized only within a certain type of liberal state—called in German a Rechtsstaat—that guarantees not just the rule of law (which need not be democratic) but ensures the maintenance of what might be called a republican or “constitutional” state (which encourages participation by means of what Habermas elsewhere calls “constitutional patriotism”). It is plausible that Habermas could have learned these lessons much earlier, from a critical engagement with the varieties of really existing socialism. But he didn’t. This makes it all the more remarkable that his conclusions are in many ways—although not in language or explicit form of argument—similar to those the French left came to learn through its critique of totalitarianism.13
The law is portrayed as an institution standing “between facts and norms.” It has a force that is both symbolic and real. A valid law in a democracy has to be able to call on the coercive force of the state to ensure its factual existence at the same time that, in everyday life, obedience is assured because citizens accept its normative character. Similarly, rights are both the expression of existing social relations, which they validate, and the articulation of normative expectations about social relations that ought to be. The polarity recalls the earlier formulations of the relation of theory to practice. But the linguistic turn has added nuance to the analysis. Now it is seen that we can distinguish between social relations as observed by the social scientist who describes a series of facts whose existence can be empirically validated or falsified and the same social relations as understood by the participant who is caught up within those same facts. In a democratic society, the participant expects the facts that are encountered as constraints also to be normatively legitimate as the result of a political process that satisfies procedural criteria that can be described empirically by an observer as present or absent. This example enriches the framework. It suggests both that analysis of the facts affects the claim to normative validity and that the assertion of normative validity can never be absent from the stance (or what Habermas, in Knowledge and Human Interests, called the “cognitive interest”) that thinks it is only describing the world as it is. In this first sense, then, Habermas remains firmly within the framework of the Frankfurt School of critical theory: he too moves constantly between facts and norms, never abandoning either, constantly concerned with their interaction.
But the old Frankfurt School was at the outset Marxist inspired, always violently critical of bourgeois society, and in its later phase quite sensitive to the destructive paradoxes of a “dialectic of enlightenment” through which Reason’s quest for purity and certainty turns into a form of self-domination and willful blindness. Habermas, on the other hand, seeks to realize the project of enlightenment, whose transformed public sphere he had criticized and then interpreted as producing an emancipatory interest before reaffirming his commitment to “the ideas of 1789” in the new book. He had explained his differences with the old school in the concluding chapter of volume 1 of The Theory of Communicative Action, which returned to the tradition of Western Marxism under the title “From Lukács to Adorno: Rationalization as Reification.” The linguistic turn that recognizes that subjectivity is always intersubjectivity permits what Habermas calls his postmetaphysical modern philosophy to recognize that the paradoxes of the dialectic of enlightenment were the result of its basic assumption that knowledge is produced by the relation of an isolated subject (or consciousness) to an objective world. This linguistic turn is developed further in Between Facts and Norms, which claims to be both a “discourse theory of law” and a “communication theory of society.” Its implication is first of all that every time we speak to someone, we make a set of “counterfactual” assumptions about the person whom we address: that she is rational, that he is not deliberately trying to deceive, that words mean the same thing for both of us, and so on. These counterfactuals are norms; if we did not assume their validity, we could and would not speak.14 The immanence of these norms in all speech acts can come to play a role similar to the immanent critique that the Frankfurt School derived from Marx’s critique of capitalism.
The interrelation of facts and norms that the linguistic turn reveals is not present only in the world of the philosopher. As noted, facts are revealed to the observer, norms to the participant, but of course in social relations each of us has to play both roles. When we turn to the law, we have to ask, what kinds of participation are necessary in order to ensure the normative validity of the observed legal facts? The answer will describe the conditions that constitute democratic participatory social relations. This democratic society can in turn become an object for observation, and the question naturally arises as to the conditions that give normative validity to that society. Presumably that legitimacy would be provided by something like what Habermas calls a “democratic culture,” but it is not clear what is meant by this concept or how it comes to exist. Its relation to the earlier concept of a public sphere is not developed. Does it refer to a society that is based on and honors liberal rights of the individual? Or does not such a democratic culture depend on the presence of a community that gives it shape and constancy? This dilemma recalls the quarrel between liberals typified by John Rawls and his communitarian or “classical republican” critics; it forms another leitmotiv of Habermas’s theory. Is it the case that individuals have rights—even if only in the form of private or negative liberties—that no political or legal measure can violate? Or do individuals have rights only because of their membership in a community, in which case the community is justified in abrogating some rights if that is judged necessary to the preservation of the sovereign community? A similar problem is posed by the question of the relation between rights as liberties and rights as social (or economic) entitlements. Habermas’s goal is to overcome these dichotomous formulations by elaborating—and illustrating by means of a condensed reconstruction of the evolution of feminist politics—what he calls a “proceduralist paradigm” that can take into account both aspects of the dual function of the law.15
What holds together a society caught between fact and validity? How can the constant oscillation from one perspective to another be overcome without having recourse to some transcendent values such as those offered in traditional societies by metaphysics, religion, or morality? In The Theory of Communicative Action Habermas had offered a double explanation of the unity of modern postmetaphysical societies: they are held together, on the one hand, by the functioning of “systems” that follow their own logic with no need for human intervention—as is the case for the market, which is steered by money, and for the bureaucracy, which is steered by power—or they maintain themselves, on the other hand, through the reproduction of an intersubjective “lifeworld” that has to be protected against “colonization” by the impersonal and instrumental logic of said impersonal systems. The place of the law in this picture was not clear: it could function as a self-contained system that can be described by an observer and whose task is to fix individual expectations and limit the burden of personal uncertainty; or law could be seen as the articulation of the intersubjective norms that underlie the lifeworld and formulate the background consensus unifying its members. The equivalent of a Marxist or critical-theoretical crisis theory could then emerge insofar as the institutions of a paternalist welfare state use legal (systemic) forms to intervene in the lifeworld, drying up its collective resources and destroying its coherence. Politics such as those of the then-vibrant “new social movements” of the period when Habermas was writing could serve as practical illustrations of this theoretical exercise in immanent critique.
Habermas’s revised approach to the law cannot be explained simply by the changed political conjuncture in which social movements are no longer so important. Yet it is worth noting that the first appendix in Between Facts and Norms is an essay written in 1990 titled “Citizenship and National Identity.” It begins from the new problems posed not only by the end of the Soviet bloc but also by the supranational institutions of what was once only a common market and now claims to be a European Community, as well as by the waves of immigration and the attendant demands for asylum that challenge the universalistic principles of constitutional democracies that nonetheless feel the need to protect their particular forms of life. Habermas appeals neither to facts nor to norms in the face of these practical difficulties. His new theory takes advantage of what he calls the “hinge” function of the law: the fact that it attaches two poles while being identical with neither. Democratic law depends on the participation in its elaboration of all those who are affected by it; in this sense it is part of the life-world, which it serves to reproduce. On the other hand, the formal structure of the law means that it must obey systemic requirements such as constancy and predictability, and in this sense it functions as a system that must run without human intervention. How do the two functions of the law relate? The opposition between the formality of the law and the demand for substantive justice could lead to what Weber called “kadi-justice,” which is able to take into account the particularity of a situation only by separating the judge from the procedural restraints needed to avoid arbitrariness. Or it could take the form of a lifeworld refusing to be “colonized” by the imposition of administrative and judicial codes. Neither reaction is modern, nor democratic in Habermas’s sense of the concept. He introduces two other metaphors to explain his proposals: democratic politics functions according to the model of a “siege” or a “sluice.” Democratic political actors do not seek to take over the state for their own purposes (as if democracy were only a means to an end distinct from it); they aim to convince the state to take into account their points of view. Since the state is a system that makes use of the medium of the legal form in order to administer society, a democratic political society has to speak to it in a language that can be “heard” by the impersonal state system. And that language is none other than the language of the law, understood now—of course—in its normative role as lived by and from the standpoint of the participants in a democratic society.
These metaphors of a “siege” and “sluices” describe an interaction that articulates the hinge function of the law at the same time that they help to explain that democratic culture about which neither liberals nor communitarians could agree. The legal language through which democratic society has to formulate its norms in order to be heard by the state provides what Habermas calls a “countersteering” that leads the society to modernize itself by adopting and elaborating institutional forms that make explicit the norms that previously only had the status of taken-for-granted (traditional or metaphysical) norms existing in the unarticulated background consensus of the lifeworld. When society is forced to articulate formally and to justify rationally to the observer the presuppositions that constitute it as a particular society—which define its own conception of the good life, so to speak—it can be said to modernize itself in the sense that what it took as unquestioned presuppositions now must be justified and can be criticized. Habermas does not identify the democratic or liberal culture that is crucial to his theory with either rights-first liberalism or the communitarian alternative. Instead he identifies the procedural means (the countersteering that replaces the dialectic of enlightenment’s dead ends) by which democratic culture can come into being and develop itself explicitly. And, significantly, his exploitation of the dual nature of law makes it clear that a democratic culture does not have to abstract from or fear co-optation by the state. The state cannot be eliminated, as some devotees of a directly democratic lifeworld would have it. The public sphere (or what is often called civil society) cannot exist on its own.
The use of the legal hinge permits Habermas to avoid a dilemma that results from his recognition of the role of the modern state (and, more generally, from his use of systems theory to account for the complexity of modern societies). It might appear that impersonal, self-reproducing systems are immune to democratization and that attempts to introduce greater social justice into state decision making or to adjust market mechanisms to ensure real equality among citizens are not just impossible but actually threatening to the smooth functioning of the social system. While it is true that Habermas’s theory rules out utopias such as workers’ self-management, its implications for progressive politics are, as he says, those of a “radical democrat” (he no longer talks about being a Social Democrat in this context). Precisely because the state or administrative or market systems must be regulated by the legal form, they can be influenced by social demands that, on their side, make their own use of the legal form in order to be heard. Indeed, the more the apparently impersonal systems that regulate society become subject to law—rather than the playthings of arbitrary decision by those in power—the greater the chances of affecting their democratic accessibility and, it can be hoped, their ability to ensure social justice.
It does not suffice to say that law is democratic simply because society or those members of society directly concerned by a decision take part in its formulation (the latter clause is necessary because one can, for example, use labor law or even the labor contract within a firm to ensure or increase its democratic nature). Indeed, there is a sense in which democracy has to be self-limiting in order to succeed in maintaining itself as democratic: this is what the practical need to speak to the powers within the system(s) in the formal language of law implied. More concretely, the state system is needed to ensure the conditions in which democracy can be realized. The republic is the precondition of a democracy, which in its turn validates or legitimates that formal republic. The point can be illustrated at the level of constitutional law as well. When the sovereign people gives itself a constitution it thereby puts limits on itself, defining the rules or norms (or procedures, as Habermas prefers to say) in terms of which laws and legal actions will be considered valid. This structure can be described factually by a political scientist or sociologist. That leaves open the question: what makes it, for the participants, normatively valid? And this is only the first step; a series of validity questions follow: How does adjudication acquire its democratic legitimacy (assuming that one does not want to accept a paternalistic or kadicourt)? How do ordinary legal discourse and adjudication relate to questions of constitutional decision making? When it comes to practical politics, we know that the law is supposed to be neutral with regard to the participants, but we know too that—as is the case with the contract between worker and capitalist, for example—some actors start with a structural advantage, such that the principle of “treating equals equally” could be interpreted as recommending a non-neutral stance, say, in questions of affirmative action.16
A critical theory of democracy, beginning from the distinction of fact and norm, must confront countless concrete problems, and Habermas takes up, regroups, and articulates more than I can even allude to here. What I should mention, however, is that the concept of a public sphere (Öffentlichkeit) that Habermas had developed in 1962 is reformulated radically by the “discourse theory” approach in order to take into account the necessarily pluralistic and complex character of modern societies. This is where Habermas’s “proceduralist paradigm” enters his argument. A brief characterization of the challenge that it poses is necessary before coming to a final reflection on what it is that makes Habermas’s theory “critical” and why that qualification is important today.17
Habermas insists on what he calls the “equiprimordiality” (Gleichursprünglichkeit) of rights and democracy. In modern postmetaphysical societies, rights are legitimate only insofar as they are posited in the democratic participatory discourse of all those concerned by their existence. Rights are not something that one has in the way one has a thing—indeed, strictly speaking (pace Locke), a thing becomes my property only through intersubjective agreement. This analogy suggests that, just as the contract through which I acquire a property may be deemed illegitimate (if it resulted from an asymmetry in the power relation between me and the previous owner or if one of us lacked some relevant information, etc.), so too the democratic participatory discourse that defines rights is itself an agreement to respect certain procedural characteristics whose definition, it should be underlined, depends in turn on the same democratic participation that it seeks to make legitimate. The interdependence of participation and procedure is only a reformulation of the hinge: procedures defined by participants at once make further participation legitimate even while the legitimate participants can agree to change the rules that made them legitimate participants (e.g., amending a constitution). We return to the oscillating structure that defined the relation of fact and norm, but now, on the basis of the discourse theory, we see why Habermas’s subtitle applied it to both “law and democracy.” Their relation now can be seen to imply that, because the legitimate presence of each as a fact is the prerequisite for the other’s normative validity, each of them is reinforced by the imperative presence of the other. And the nub of the procedural paradigm will consist in establishing the means to conserve their equiprimordiality. In this way, the liberal or democratic culture that was central to Habermas’s project is conserved, reinforced, and made more rational.
This claim poses a final question, illustrating once again the uneasy relation of Habermas to critical theory from which this discussion began. In a reply to participants in a symposium on Between Facts and Norms, Habermas writes that “even if readers do not always see the ‘end of critical theory’ in this project, they frequently think it defuses the critique of capitalism and just gives in to political liberalism.”18 This was indeed the claim that has been presented here—but with the qualification that the result of this project will strengthen liberal culture. Habermas rejects both sides of the liberalism/communitarianism polarity, even while recognizing the element of truth in each. What makes his theory critical lies at a deeper level than a practical program for social change. His inclusion of the appendix on the “ideas” of the French Revolution suggests that he does not situate his theory in the Marxist or communist historical perspective that seeks the realization of the French Revolution. The import of the French Revolution for him lies in the challenge that it posed—and still poses two centuries later. As long as critical theory is not implicitly identified with Marxist theory that is still looking for its ersatz proletariat and as long as Marxist theory is not oriented toward the realization of a revolution that will overcome opposition by uniting once and for all fact and norm, what Habermas has done is to demonstrate why and how, since 1789 and all the more after 1989, “democracy” is that which founds any theory that can claim to be critical. This simple truth may get lost in the vast and complicated (sometimes passionately exciting, at others pedantically satisfying) edifice that represents Habermas’s newest proposal for a modern and synthetic critical theory. It will be interesting to see whether the French, to whose conclusions it is so close despite its foreign conceptual language, will be able to understand it.19