Abstract
The purpose of the present paper is to offer a Foucauldian critique of Habermas’s theory of law and democracy. Quite famously Habermas viciously attacked Foucault’s positions on law and power in modernity. Those attacks will be taken into consideration here in order to show some deficiencies in Habermas’s own reading of modern law and democracy. My suggestion is that the formal nature of Habermas’s communicative approach fails to take into adequate consideration the question of subjectivity formation. More precisely I will demonstrate that Habermas’s own works show a troublesome ambivalence with regards to the possibility that individuals can participate as ‘unencumbered selves’ to the public life of their community. As a consequence his account turns a blind eye to certain dynamics of power in our society that a Foucauldian approach seems more apt to frame and explore.
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Notes
“Lucas Papademos sworn in as Greece's prime minister”, 11.11.2011, available at http://www.guardian.co.uk/world/2011/nov/11/lucas-papademos-greece-prime-minister; “Italy races to install Monti government”, 13.11.2011, available at http://www.ft.com/cms/s/0/f8106b1a-0e21-11e1-91e5-00144feabdc0.html#axzz1mRlQM52U (last accessed on 14.02.2012).
As Bob Jessop summarises ‘Foucault stressed three themes in his “nominalist” analytics of power: it is immanent in all social relations, articulated with discourses as well as institutions, and necessarily polyvalent because its impact and significance vary with how social relations, discourses and institutions are integrated into different strategies’ (Jessop 2007, p. 35).
To stress this concept of activation of the subject that implies a positive working of power, not repressive but creative, a conception that is entirely Foucauldian in nature, we would like to suggest the neologism ‘subjectivation’.
Foucault first mentioned ‘governmentality’ in the 1st of February 1978 Lecture at the Collége de France which was subsequently published in the Italian journal Aut–Aut, no. 167–168. Sept. Dec. 1978.
Discipline and governmentality, notwithstanding their differences, were seen by Foucault as parts of a common dynamics of power that, focusing on the biological, aimed at managing the subject both as a single individual and as a member of the social body (Foucault 1979, 135 ff.). Together they surrounded the subject forcing her to internalise standards of practice, behaviours, ideology and giving rise to a dynamics of normalisation where abidance to rational norms was of paramount importance (Foucault 2003, p. 253). The emergence of a new technique of normalisation during the late eighteenth and the nineteenth century has therefore to be seen as the completion of a unitary surrounding manoeuvre around the body, the final stage of a siege that puts in check the man understood as a biological machine: “We are, then, in a power that has taken control of both the bodies and life or that has, if you like, taken control of life in general—with the body as one pole and the population as the other” (Foucault 2003, p. 253).
‘If law is essentially constituted by a tension between facticity and validity—between its factual generation, administration, and enforcement in social institutions on the one hand and its claim to deserve general recognition on the other—then a theory that situates the idealizing character of validity claims in concrete social contexts recommends itself for the analysis of law. This is just what the theory of communicative action allows, without the metaphysical pretensions and moralistic oversimplification we find in Kant’ (Rehg 1996, p. xii).
Habermas recognises as necessary five groups of rights: “(1) Basic rights that result from the politically autonomous elaboration of the right to the greatest possible measure of equal individual liberties; (2) Basic rights that result from the politically autonomous elaboration of the status of a member in a voluntary association of consociates under the law; (3) Basic rights that result immediately from the actionability of rights and from the politically autonomous elaboration of individual legal protection; (4) Basic rights to equal opportunities to participate in processes of opinion-and will-formation in which citizens exercise their political autonomy and through which they generate legitimate law; (5) Basic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded, insofar as the current circumstances make this necessary if the citizens are to have equal opportunities to the civil rights listed in (1) through (4)” (Habermas 1996, pp. 122–123).
It must be stressed, however, that Foucault does not adopt a ‘power-determined’ vision of the subject. Rather he sees the individual as intrinsically enmeshed with the discourses of power/knowledge (Oksala 2005, p. 95). To this extent ‘Foucault’s interest is in showing the extent to which subjects are the effects of discourses or [sic] power by bracketing the relative autonomy of the subject’ (Kelly 2009, p. 89).
Habermas sees that the national state is caught in a double envelopment both internally and externally: ‘Globalization forces the nation-state to open itself up internally to the multiplicity of foreign or new, forms of cultural life. At the same time, globalization shrinks the scope of action for national governments, insofar as the sovereign state must also open itself externally, in relation to international regimes’ (Habermas 2001, p. 84).
‘We will be able to meet the challenges of globalization in a reasonable manner if the postnational constellation can successfully develop new forms for the democratic self-steering of society’ (Habermas 2001, p. 88).
After acknowledging the bloody and tragic history of Europe, Habermas depicts the Old Continent in such rosy tones: “In happier moments […] conflicts have acted as a spur toward the decentering of perspectives; as an impulse toward critical reflection on, and distancing from, prejudices and biases; as a motive for the overcoming of particularisms, towards tolerance and the institutionalization of disputes. These experiences of successful forms of social integration have shaped the normative self-understanding of European modernity into an egalitarian universalism that can ease the transition to postnational democracy’s demanding contexts of mutual recognition for all of us—we, the sons, daughters, and grand children of a barbaric nationalism” (Habermas 2001, p. 103). Looking back at recent European history, however, we cannot be so cheerful. Indeed we are experiencing a time of relative European peace and prosperity, but we must not forget the violent tensions that have shaken and still strain Europe. The political revolt of ’68, the Italian and German terrorism of the ’70s and ’80s, the Yugoslavian Civil war and the Kossovo War, and the more recent (2005) French banlieu unrest remind us of a less harmonic European history.
Habermas’s latest book ‘Zur Verfassung Europas’ is not yet available in its English translation (Habermas 2012) as I write. Excerpts from the book have, however, appeared on the international press. See ‘Democracy is at stake’, 27.10.2011, available at http://www.presseurop.eu/en/content/article/1106741-juergen-habermas-democracy-stake (consulted on 14.02.2012); ‘Europe's post-democratic era’, 10.11.2011, available at http://www.guardian.co.uk/commentisfree/2011/nov/10/jurgen-habermas-europe-post-democratic (both URLs were last accessed on 14.02.2012).
The only self-critical comment he has publicly offered does not go beyond the level of matter-of-factness: ‘Sometime after 2008 I understood that the process of expansion, integration and democratization doesn't automatically move forward of its own accord, that it's reversible, that for the first time in the history of the EU, we are actually experiencing a dismantling of democracy. I didn’t think this was possible. We've reached a crossroads’ (‘A Philosopher's Mission to Save the EU’, 25.11.2011, available at http://www.spiegel.de/international/europe/0,1518,799237-2,00.html (last access on 14.02.2012).
Tilly (1996, p. 7) defines identity in the following terms: ‘an actor’s experience of a category, tie role, network, group or organization, coupled with a public representation of that experience; the public representation often takes the form of a shared story, a narrative’.
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Martire, J. Habermas Contra Foucault: Law, Power and the Forgotten Subject. Law Critique 23, 123–139 (2012). https://doi.org/10.1007/s10978-012-9099-4
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DOI: https://doi.org/10.1007/s10978-012-9099-4