Critical Encounters with Habermas' Legal Theory

FRIDAY, MAY 26

1:00 – 1:30                   Welcome / Reception

1:30 – 1:45                   Introductory Remarks

1:45 – 4:00                   Panel 1

William Scheuerman   
“Democratic Theory after Between Facts and Norms: What’s Left?”

David Ingram             
“Democratic Theory’s Existential Crisis: Between Discourse and Partisan Empowerment”

Phillip Hansen and Brian Caterino
“Between Facts and Norms at 30: Habermas, Neoliberalism, and Radical Democracy”

4:00 – 4:15                   Break

4:15 – 5:30                   Keynote Address

Seyla Benhabib
“The Specter of Sovereignty in Habermas’ Between Facts and Norms”

SATURDAY, MAY 27

9:30 – 9:45                   Coffee

9:45 – 12:00                 Panel 2

Cristina Lafont
“Is Democratic Legitimacy Purely Procedural? An Institutional Account of the Legitimacy of Democratic Decision-Making"

Rurion Melo
“On the Heuristic Potential of the Habermasian Concept of the Public Sphere”

Isabelle Aubert
“Between Facts and Norms and the Threat of Pseudo-democracy”

12:00 – 1:00                 Lunch

1:00 – 3:15                   Panel 3

Matthew Dimick
“Habermas’ Between Facts and Norms and the Content of the Legal Form”

John Abromeit
“Historicizing Habermas Between Facts and Norms:  A Critique from the Perspective of Early Frankfurt School Critical Theory”

3:15 – 3:30                   Break

3:30 – 5:15                   Panel 4

Erin Pineda
"Policing the Public Sphere"

Matthew Specter
“Cosmopolitan Dreaming? Historicizing the Habermas Reception of the 1990s in International Relations and International Political Theory”

5:15 – 5:30                   Concluding Remarks

Between Facts and Norms at 30: Habermas, Neoliberalism, and Radical Democracy
Brian Caterino and Phillip Hansen

In our paper we attempt to address the twin aims of the conference. That is, we both explore the relation of Habermas’ liberal democratic legal theory in  Between Facts and Norms to Frankfurt School critical theory and seek to put the work into historical perspective. The two themes intersect and cross over on the issue of radical democracy, its key elements and prospects. Thus, we attempt to situate the account in BFN in the face of the triumph of neoliberalism during the thirty years since the original publication of the book and pose the question of how effectively Habermas’ position meets that challenge. At the same time, we also appraise the critical potential of this position in the context of need for a critical theory of the present that both offers a critique of domination and identifies emancipatory possibilities in the face of those forces imperiling democracy in the contemporary period. But we have to be clear about the precise nature of such forces. Much academic and journalistic writing highlights so-called authoritarian populism. We believe that for a number of reasons this is too narrow and limited a focus. In BFN Habermas provides potential resources for expanding this focus but does not sufficiently develop them. Thus, the book falls disappointingly short of achieving its potential as a critical theory of the present, even as Habermas professed, and continues to profess, a commitment to a radical theory of democracy.

Democratic Theory after Between Facts and Norms: What’s Left?
William E. Scheuerman

This paper revisits my 1999 critique (“Between Radicalism and Resignation: Democratic Theory in Habermas’ Between Facts and Norms”) of Habermas’ most important contribution to political and legal theory. In hindsight, it now seems clear to me that some of criticisms stemmed from a failure to address the book’s complicated attempt to navigate between “facts” and “norms,” and thus Habermas’ vision of “rational reconstruction.” Nonetheless, at the obvious risk of intellectual stubbornness, I suggest that some key elements of my original criticism not only remain pertinent, but that they can help us understand certain lacunae within Habermas’ most recent contributions to a critical theory of politics. First, my worries about Habermas’ apparent marginalization of systematic Kapitalismuskritik, I fear, have been corroborated by his more recent writings, despite his many eloquent criticisms of neoliberalism and obvious interest in its deplorable impact on democratic politics. Second, there is no question that BFN borrowed heavily from the democratic theory developed by Bernhard Peters, an important interlocutor for Habermas in the Frankfurt legal theory study group he coordinated during the late 1980s and early ‘90s. Since the publication of BFN Habermas’ debts to Peters have continued to shape his thinking. While they have helped Habermas pursue some productive analytic paths, others, unfortunately, have consequently been neglected.

Democratic Theory’s Existential Crisis: Between Discourse and Partisan Empowerment
David Ingram

How accurate is Between Facts and Norms (BFN) as a normative reconstruction of liberal democracy today? Normative theories by their very nature run the risk of being abstract and partial. I will argue that, however limited BFN might have been in explaining the political dynamics of liberal democracy in the aftermath of the Soviet collapse, it is arguably even more limited today, with the rise of highly partisan forms of populism. Nonetheless, despite its departure from Habermas’s earlier writings on crisis and partisanship, BFN correctly theorizes a normative practice that must meet partisan struggles half-way if liberal democracy is to be possible. The descriptive and normative prioritizing of communicative action, social cooperation, and rational conciliation of differences in Habermas’s discourse theoretical account of law and democracy privileges competences that are suitable to forms of deliberation oriented toward pragmatic problem solving. In a rationalized lifeworld, ordinary citizens and legislators acting in the public sphere who are ostensibly guided by an ideal conception of legal legitimacy and discursive civility, either by intention or institutional design, are supposedly encouraged (rationally compelled) to adopt a self-critical attitude toward their parochial ethical attachments.

In rationalized lifeworld that is not convulsed by existential crises and hyper-partisanship, political agents who would otherwise desire to achieve power over their opponents might well be more disposed toward modifying their behavior in the direction described by Habermas’s theory. Perhaps such a setting prevailed in the aftermath of the collapse of the Soviet Union, when the wave of democratic constitution-making that followed in Eastern Europe coincided with an unprecedented revival of human rights politics within a unipolar global pax Americana.

This setting is harder to duplicate in today’s liberal democracies, for reasons that Habermas himself has noted. The intensification of globalization and especially economic destabilization wrought by the emergence of a neo-liberal (and now fully digital) form of financialized capitalism has exacerbated poverty, inequality, and social upheaval beyond what a stripped-down, revenue-starved welfare state can handle. The existential polarization of government options catapults the achievement of raw political power ahead of impartial deliberation on common interests. So, despite Habermas’s subsequent efforts to supplement his ideal theory with contemporary observations on digital mass media, global economic crisis, and political fragmentation, it is the non-ideal theory of his critics that arguably better describes the normative dynamics of today’s hyper-partisan populist movements.

I contend that this dismissive judgment is at best partly true. It is partly true because Habermas’s ideal theory of deliberative democracy privileges a partial standpoint that is no longer in the ascendance, namely, that of a “Brahman class,” to borrow Thomas Picketty’s pointed description of a highly educated generation of pragmatic progressives. To the extent that these Brahmans are economically immune from the existential cataclysms shaking the working class, they are inclined to frame the former’s identity crisis in the less polarized vocabulary of pragmatic problem solving, thereby foregoing plebian ethical-existential debate for the sake of expert- manufactured consensus. On the other hand, Habermas himself observes that the reduction of politics to manageable issue politics, shorn of partisan ethical-existential identity politics and other ideological struggles for recognition, poses the danger of fragmentation and, I would add, the weakening of political parties. By a dialectical turn of fate, the weakening of parties as organized associations of deliberation focused on political ideology and problem solving, prepares the way for a populist politics that has abandoned intra- and extra-mural discourse for authoritarian identity politics---a politics about which a political theology along the lines proposed by Carl Schmitt seems more applicable. If this were true, then not just the theoretical accuracy of BFN would be cast in serious doubt but democracy as such. Hence, ending on a more optimistic note, I argue that the fate of both BFN and democracy depends on the real possibility of revitalizing the kind of politics that ideal theory takes as approximately normal. This possibility, of course, depends on the changing dynamics of contemporary capitalism and its corresponding digital sub-culture.

Is Democratic Legitimacy Purely Procedural? An Institutional Account of the Legitimacy of Democratic Decision-Making
Cristina Lafont

In Between Facts and Norms Habermas defends a complex view of democratic legitimacy that aims to account for both the procedural and substantive dimensions of legitimacy. However, his account of the relationship between these dimensions is too proceduralist to be plausible (I). Against this view, I defend an institutional account of the legitimacy of democratic decision-making. I argue that this alternative approach helps provide a more convincing account of the interplay between procedural and substantive aspects of democratic legitimacy which in turn illuminates the intricate relationship between public deliberation and decision-making procedures such as voting (II). This account also enables us to see what is wrong with interpreting the legitimacy of majoritarian and non-majoritarian institutions in terms of an alleged conflict between popular sovereignty and rights protections. In opposition to this view, I argue that the proper standard for judging the democratic legitimacy of both majoritarian and non-majoritarian institutions is whether they enable an ongoing recursive process of deliberative contestation or whether they generate antidemocratic shortcuts instead (III).

Between Facts and Norms and the Threat of Pseudo-democracy.
Isabelle Aubert

When Habermas published Between and Facts Norms, three years after the fall of the Berlin Wall and shortly after the collapse of the USSR, much hope was placed in the development of the democratic rule of law at a national and transnational level. The book has carefully reconstructed the balance needed between legal and political institutions on the one hand and civil society on the other hand to sustain a true democracy. Halfway between political liberalism and republicanism, Habermas’ discourse theory offered a solid basis for understanding legitimate expectations of modern political societies. Nevertheless, behind this reconstruction and against a naive enthusiasm, the fear of the democratic deficit haunted Habermas’s book. In this presentation I would like to focus on the diagnosis that Between Facts and Norms makes of the pathologies of democracy and its responses. The main question is the extent to which Habermas’s discourse theory of law and democracy provides the
means to respond to the past and present pathologies of Western democracies, or fails to do so.

On the Heuristic Potential of the Habermasian Concept of the Public Sphere
Rúrion Melo

In Between facts and Norms, Jürgen Habermas elaborates on a concept of the public sphere that should not be understood in purely normative terms, but rather as a socially constituted point of departure for the understanding of political processes and the reconstruction of critical categories. Keeping the methodological concern with the practical genesis of the concept, we show how the concept of the public sphere is constituted together with a process of circulation of power that allows us to critically diagnose the democratization of the political system put in motion by social conflicts. This text seeks to highlight both the heuristic potential of the concept as a tool for understanding and diagnosing open political processes, and the possibility of thinking beyond the limits of the formulations found in Between facts and norms.

Habermas’ Between Facts and Norms and the Content of the Legal Form
Matthew Dimick

As Kirchheimer observed, “Law is in and of itself a form, an empty form,” and it can serve
many conceivable purposes, reactionary or radical, conservative or liberal (Scheuerman
1994, 42). This view no doubt expresses the dominant view of the law, especially since the
legal-realist revolution in the United States, namely, that the law is a mere tool that can
serve any number of indeterminate ends. Habermas of course agrees with this view,
especially insofar as it is meant to reject the radical antilegalism of various critics of the
law (including the early Kirchheimer). Indeed, Between Facts and Norms is so unabashedly
enthusiastic about law’s potential for securing democratic legitimacy and social integration
that he never really pauses to consider whether the legal form itself, regardless of which
ends or purposes it serves, may really be so “empty.” Yet, as various Hegelian authors have
recognized, including Marx, form and content are not so indifferent to one another, and any
particular form expresses some kind of content. This paper will explore the idea that the
legal form is a historically specific form for the regulation of social relations that achieves
its consummate expression under capitalism. Understanding this relationship makes ideals
like the “rule of law” intelligible and explains their co-emergence with liberal democracy.
The legal form can of course sustain various, politically-opposed, and radically-divergent
contents. But it also generally and simultaneously sustains the market dependency of all
(legally-recognized) actors that is the hallmark of the capitalist mode of production. This
“content” of the legal form is unrecognized because of the commodity’s fetishism, as
diagnosed by Marx. Finally, the legal form undermines various legislative efforts whenever
they, at least, impinge on the logic of capital. The paper will illustrate these claims by
examining a handful of landmark US Supreme Court decisions addressing Title VII of the
Civil Rights Act of 1964. This will give us an occasion to assess Habermas’s attempt to
reconcile the “law-as-tool” practice of law with a loftier, moral theory of the law. Habermas
concluded that the “law defined through a system of rights domesticates, as it were, the
policy goals and value orientations of the legislator through the strict priority of normative
points of view” (BFN, 256, emphasis in original). However, a brief look at any area of post-
WWII legislation raises skepticism about whether “as legal norms, basic rights are, like
moral rules, modeled after obligatory norms of action—and not after attractive goods”
(ibid.).

Historicizing Habermas’s Between Facts and Norms: A Critique from the Perspective of Early Frankfurt School Critical Theory
John Abromeit

Habermas’s Between Facts and Norms (BFN) can be read as an attempt to redress a
deficit of liberal-democratic political and legal theory in the tradition of Marx and the early
Frankfurt School. Published in 1992, BFN was written during the collapse of Soviet communism,
which was interpreted by many commentators at the time as the death knell of the Marxist
theoretical tradition as a whole. Although Habermas himself rejected triumphalist declarations
of “the end of history,” his primary focus in BFN on reestablishing the theoretical foundations
of liberal democracy reflected the transition from communist authoritarianism to democracy
not only in Eastern Europe. It also represented a continuation of Habermas’s earlier work,
which had been shaped by the transition from fascist authoritarianism to democracy during the
post-WWII period in West Germany. Habermas’s theory of democracy was timely, it addressed
a genuine deficit in the Marxist tradition (up to and including early Frankfurt School Critical
Theory), and it can still guide us in defending basic democratic principles. At the same time,
historical developments since 1992 have made more visible some of the ways in which BFN was
a product of its time. The paper will argue that BFN is more appropriate as a liberal-democratic
critique of administrative power than as a democratic-socialist critique of capitalism. To assess
the strengths and limitations of BFN, I reconstruct in the first half of the paper Habermas’s
foundational concept of law, which provides both legitimacy and social integration. In the
second half of the paper, I turn to Habermas’s theory of modernization as the differentiation of
value spheres and to his concept of civil society. Examining both critically from the perspective
of the critical Hegelian-Marxism of the early Frankfurt School, I argue that Habermas’s
normative approach uncritically naturalizes modern bourgeois society and problematically
posits neat separations between different “value spheres” that fail to reflect the real history of
modern capitalist societies. Despite his efforts to rescue a procedural concept of democratic
will formation as transcending different value spheres, BFN does not provide us with historically
mediated concepts which could help us grasp real social tendencies – such as neoliberal
capitalism and right-wing populism – that have gained strength in the past three decades and
that threaten to undermine democracy from within.

Habermas, Civil Disobedience, and the American Exemplar
Erin Pineda

Habermas' theory of civil disobedience is, in some sense, a thoroughly and specifically
German theory. First articulated in his 1989 [1985] essay "Civil Disobedience: Litmus Test for
the Constitutional State" and later elaborated as part of the discourse theory of democracy
presented in Between Facts & Norms (1996 [1992]), Habermas was writing in response to a
wave of protests against NATO's deployment of nuclear missiles in West Germany and the
ensuing public and legal controversy over the "right to resist" enshrined in German Basic
Law. As Matthew Specter has argued, Habermas' writings on civil disobedience are part of a
broader set of reflections about "the nature of West Germany's link to the West"--reflections
that are "political interventions" in particular West German debates of the late Cold War era
as much as they are "philosophical account[s] of modernity" (Specter 2010, 24-25). Yet,
heavily influenced by the account of civil disobedience in John Rawls' A Theory of
Justice (translated into German in 1975), the American example lurks in the background
of Habermas’ theory. This essay will argue that US constitutional culture becomes an object
of desire for Habermas and—behind the scenes—shapes his account of a form of civil
disobedience both motivated and limited by constitutional patriotism. Contrary
to Habermas’ intentions and in spite of his own commitments to radical democracy and the
“wild,” “anarchic” nature of the informal public sphere out of which disobedience emerges,
recourse to the American exemplar (in its Rawlsian variant) disciplines Habermas’ theory of civil disobedience.

Cosmopolitan Dreaming? Historicizing the Habermas Reception of the 1990s in International Relations and International Political Theory
Matthew Specter

Stephen Hopgood has pronounced our era the “endtimes” for human rights as
a global political language of advocacy and social change. Critics and
defenders of the contemporary human rights project look back to the 1990s as
the high watermark of expansive hopes for a global politics of human rights
promotion and institutionalization. Scholarship on cosmopolitanism, global
democracy, and global constitutionalism thrived in the decade-long window
between the end of the Cold War and the advent of the War on Terror as never
before-- or since. This paper examines Habermas’s Between Facts and Norms as a double landmark in the recent history of human rights. First, it contextualizes the text within the historiography of the revolutions of 1989 and German
reunification. This contextualization captures the “mood” of the text,
reiterating the claim of Specter (2010) that the work, composed from 1985-
1991 was not written in a spirit of resignation to neoliberalism ascendant.
Second, it asks to what extent, the text was an influence on overly optimistic
prognoses for the globalization of human rights, democracy and
constitutionalism in the 1990s. It proposes that the reception of Habermas’s
political theory (and social theory) by scholars of international relations in the
1990s constitutes evidence of this pattern of influence. Thus, it uses these
discourses to locate Habermas’s Between Facts and Norms as an event within
the history of globalization. Finally, it addressed the question about the
relationship of Critical Theory to Habermas’s discourse theory of democracy
by assessing the strengths and weaknesses of Habermasian IR theory as a
critical social theory of international relations.