File spoon-archives/marxism-thaxis.archive/marxism-thaxis_1998/marxism-thaxis.9802, message 276


Date: Fri, 13 Feb 1998 11:10:29 +0000
From: James Heartfield <James-AT-heartfield.demon.co.uk>
Subject: M-TH: Habermas and decentred subjects


Following the posts from Ralph and Kenneth, I realised that my reading
is fairly unorthodox. So in answer to those  posts I'm reproducing a
review of his latest (in English) book on law at the bottom of this
mail, that I wrote for LM a few months ago.

On the more specific point of 'decentring the subject' Ken raises

In message <ECS9802121304A-AT-utoronto.ca>, Kenneth MacKendrick <kenneth.ma
ckendrick-AT-utoronto.ca> writes
>
>A defence of the static, universal, unchanging subject (the 
>generalized other) is equally disturbing for the same reasons. 
> Defending the white, male, heterosexual, and christian 
>understanding of the subject is just as authoritarian as the 
>liquidation of the subject.


I suppose the simple answer would be, 'who's Defending the white, male,
heterosexual, and christian understanding of the subject', since my
point is that all adults should be recognised as subjects.

But what I think you mean is that the very notion of the autonomous
subject is implicated in the narrow viewpoint of 'white, male,
heterosexual, and christian'. And that is the viewpoint I reject.

The fact that rights were restricted to core social groups does not for
me mean that rights are in themselves a bad thing. In fact, I would
suggest that the movements for women's emancipation, against slavery,
for black voting rights in the US, or 'one man one vote' in S Africa,
all indicate that marginalised groups largely aspire to equal rights
with the privileged core, ie the extension of rights to embrace all
adults.

It seems pretty despicable to me (sorry, I don't mean that you are
despicable, just the idea) that because rights are denied some in
society then those rights are not worth having. The consequence of that
is not as radical as it seems: it only means that unequal rights are
justified on the sour grapes principle.

There is nothing about the _concept_ of right that means that it is
necessarily restricted to the white, male, heterosexual, and christian,
as is ably demonstrated by the actual extension of rights beyond that
coterie. I find it perverse argumentation that refuses to acknowledge
that in many respects, formal and legal discrimination has been reduced.
It is no longer the case in the US and Europe, for example, that women
are chattels of their husbands, or that black people are slaves. The
extension of voting and property rights I hold to be a considerable
social advance, but by your argument it would be merely the
consolidation of
>the white, male, heterosexual, and christian 
>understanding of the subject


---------------------
Law without right

Between Facts And Norms: Contributions To A Discourse Theory Of Law And
Democracy
Jurgen Habermas, Polity Press, 14.95 pbk

Politics: The Central Texts
Roberto Mangabeira Unger, Verso, 15 pbk

As the law is extended into more and more areas of everyday life, James
Heartfield challenges some recent attempts to rationalise legal activism 


New laws are being drafted every day. Take a look at the book of British
statutes, and you will be surprised to see that the legislation drafted
since 1979 takes up as many volumes as that drafted in the entire
history of English law up to then. Passing laws seems to be the only
thing that governments do. If there is seen to be a problem, the first
instinct will be to pass a law, or institute a new regulation about it. 

It is not only governments that are keen on passing laws. Legal activism
is a growing arena of political life. All kinds of campaigning groups
and public institutions are lobbying for new restrictive laws to be
passed. Women's groups have lobbied for new laws on harassment and for
changes to the law on rape. Black activist groups have campaigned for
the new law of racially motivated assault. Environmental groups lobby
for new restrictions on pollution. So what is really driving the
increasing juridification of everyday life? 

Two people who have thought about the law as a radical resource are
Roberto Unger and Jrgen Habermas. The Brazilian Unger is Professor of
Law at Harvard University, whom Perry Anderson called 'a philosophical
mind out of the Third World turning tables to become a synoptist and
seer of the First'. Jrgen Habermas is Germany's foremost sociologist
and a lifelong champion of 'communication ethics' a theory of human
cooperation on the basis of mutual respect. Both of these authors are
concerned with state power, since both have come from the left of
politics, and both were disillusioned by the traditional left's
programmes of state-led reform. And yet despite being critics of the
extension of state power as advocated by socialism in the past, both
here seek more state intervention by way of legal activism. 

Habermas in particular is aware that he is changing his view of the
state. Worried that he is giving up too much to the law, he tries to
work out some guarantees that new laws will not involve a loss of
personal autonomy. The way he does that is to reconstruct the ideal
theory of the law in his mind. Without getting too involved in
particular laws, Habermas wants to work out what the general theory of
law is, and the way that it relates to freedom. That way he has a
measure against which he can test the new kinds of laws to see if they
clash with the basic idea of freedom. Habermas' general theory of the
law is very good, and well worth looking at here - especially because
the points at which he gets it wrong are very revealing. Looking at
traditional theories of law and the state, Habermas tidies them all up
into one general theory, but when he puts his own ideas in they stick
out like a sore thumb. 

Habermas looks at two different sides of the law. The first is the civil
rights that people have, their independence, and their right to strike
deals with one another. As Habermas rightly sees it, these rights derive
their authority from the individuals themselves. In the adjudication of
contracts, the law does not seem to impose a decision from outside. It
only enforces the decisions that you yourself have made. You might
regret it now, but when you signed your soul to the Devil you embodied
your will as an enforceable contract. Consequently, you have nobody but
yourself to blame, when he comes to collect. 

Things are different with the 'system of rights' that exists in any
country, principally as its written laws and its political constitution.
Unlike civil rights, the laws of the land are not meant to derive from
self-interest. Instead they exist to ease the intercourse of society as
a whole. More often than not, these laws have been understood in a very
different way from the civil rights between people. Instead of being
'rights' they are seen as 'goods'. That means that they are not open-
ended and they do not say you can do what you want to do, so long as you
don't interfere with anybody else. Instead they have said 'this is the
proper way to behave'. 

The proper way to behave could mean all sorts of things, such as
saluting the flag in school, or raising a good Christian family or
caring for the poor and sick. In any event, these 'goods', or morals are
not supposed to be selfish goals. They do not derive their authority
from the will of individuals seeking their own benefit. Instead they are
directed at the good of society as a whole. 

Habermas argues that these moral justifications of the laws of the state
have generally been based on tradition. Traditions like the British
monarchy, or the American Flag, or the destiny of the German volk,
underpinned the authority of the state. These traditional beliefs
trumped individual rights. It is as if to say 'America - love it or
leave it', or 'that's not Cricket', whenever somebody crosses the line
by putting self-interest before the established order. But Habermas
argues that these trad-itions have lost their authority today. We live,
he says, in a post-traditional age. The days when Johnny Appleseed would
tug his forelock to the American flag are long gone. For that reason
Habermas rejects the attempts by communitarian thinkers to artificially
reconstruct the idea of a good society as well-intentioned, but doomed. 

Instead, says Habermas, we must found our ideas of the system of rights
on a different liberal tradition, of popular sovereignty and the social
contract. Habermas understands that the perennial conflict between those
who emphasise individual rights, and those who emphasise collective
responsibilities, is based on a confusion. As he says, the basis of
civil rights and the political state are not as hostile as they seem.
Underlying them is the same ruling principle of free choice. That seems
silly to those who think that individuals choose, but states dictate.
But the idea of a modern state is based on the principle that the state
acts on the basis of the choices of the people. Just as under civil
rights we all make our own choices, so in the idea of the modern
democratic state, we choose as a collective individual, a 'people', 'the
voters' or 'the nation' decides. 

When you strip away all the traditional justifications of state
authority, says Habermas, you are still left with this liberal
proposition that the state is a social contract, that derives its
authority from the sovereign will of the people, in a similar way to
that in which a contract between two parties derives its authority from
the decided will of those parties. 

Anybody who is thinking that this is a load of hogwash, should think
again. Of course it is reasonable to protest that the state purports to
be acting on our behalf, but somehow ends up favouring the rich and
powerful. Equally it is reasonable to point out that the contract
between employee and employer is far from equitable, because employees
have only enough money to live on, while employers have control over the
wage fund. They may be formal equalities that fall short of substantial
equality, but that in itself is not an objection to the rights enshrined
in the law. On the contrary, these rights are impressive gains, that put
a premium on human decision-making, and should not be rubbished lightly.
The sentiment behind US politician Al Smith's aphorism that there's
nothing wrong with democracy that more democracy can't fix is a good
one. But more importantly, it would be a mistake to throw away civil or
political rights when they are not the problem. If anything our problem
today is the opposite, that freedom, even in the restricted form
available in a market society, is seen as a dangerous thing. 

However, good as Habermas' reconstruction of the classical theory of
rights and the law is, it is impossible not to notice an underlying
caution on his part. There is one word that sticks in his throat, which
is a problem because it is the word for the thing that the entire theory
of rights rests on - 'the subject'. 

The essence of the argument outlined above is that subjectivity is the
principle which combines civil and political rights. The contract is
made by an individual subject, the social contract by a collective
subject. Because the state claims to derive its power from the will of
the people it is an act of self-determination, just as the freedom to
strike a bargain is a small act of self-determination. God knows there
are enough qualifications placed upon the freedom of choice, both at the
individual level and at that of political representation, but the
principle itself is a great one. 

Habermas, however, sees things differently. For him the idea of the
sovereign subject is a dangerous one. He is thinking of his experiences
as a young man in Hitler's Germany, when the politics of subjective
choice appeared to be concentrated in one source of authority, the
Fhrer. Habermas has often explained his hostility to the politics of
subjectivity, and does so again here. 'To the extent that we become
aware of the inter-subjective constitution of freedom, the possessive-
individualist illusion of autonomy as self-ownership disintegrates', he
writes cryptically. What he means is that we are only free individuals
because we live in a society that can support our different ambitions
and projects. The freedom to buy Coke or Pepsi rests on extensive social
networks that produce and distribute the product, the money to buy it
with, the laws that uphold the right of ownership and so on. 

To that extent, Habermas' point is not different from one that was often
made by the better theorists of rights, such as Rousseau, Hegel and T H
Green - that individuals do not become individuals because nature makes
them that way. Rather, they become individuals through society. Where
Habermas goes further is in taking this to mean that individual
subjectivity alone is a bad thing, and consequently misunderstands the
claim of liberal societies. Not subjectivity, but inter-subjectivity is
the basis of freedom, he says, where inter-subjectivity means the
negotiation between subjects, rather than the will of subjects. It is a
distinction that can appear to be a bit pedantic, but in the development
of his ideas it makes more sense. Habermas is saying that the thing we
should value is not our free will, but the way that the clash of many
wills prevents any one will from taking precedence. He means that the
rules we all observe to get along are more important than what any one
of us wants. This is a theory that puts a premium not on subjectivity,
but on the constraint of subjectivity, meaning more laws to govern our
behaviour. 

Habermas goes even further in arguing for the restraint of the
collective subject of a sovereign people. He considers the collective
subject as a dangerous development of the principle of subjectivity.
Like Unger, he thinks that the collective subject in power will tend
towards dictatorship, and must be constrained by constitutional devices
that frustrate majority rule. People's choices in Habermas' sociological
theory, whether they are the individual choices of civil rights, or the
collective choices of political rights, are something to be feared and
constrained rather than welcomed. And with that distrust of subjectivity
it is difficult to see what remains of the liberal theory of rights that
Habermas purports to support. 

Substantially, Habermas' overriding concern is not freedom, but order.
Like the university professor he is, who once chided his radical
students for occupying the college (only to change his mind when he saw
that they were all pretty respectable people really), Habermas wants
everything to proceed in an orderly fashion. He supports civil rights
because he thinks these are the best guarantee of order. It is not that
he values individual freedom in its own right, but that he thinks that
we will not accept the social order without that concession. His view of
political rights is similarly qualified. In proposing that the laws of
the land must be derived from collective decision-making, he is not
saying that he values collective decision-making. Rather he sees it as a
price worth paying for people to grant the law legitimacy. It is the
legitimacy of the social order, not its actual derivation from the
popular will that he wants. 

Habermas' overriding concern is to see people obey the law, not to see
them make it. He is prepared to put up with them being formally
consulted in the making of the law, if that is the best way to get them
to obey it. His goal is not freedom, but consensus. In the end Habermas'
conditional support for freedom of choice leads him away from the
classical view of rights that he says he is defending, and towards a
greater degree of legalistic regulation of everyday life. 

In contrast to Habermas, and interestingly for a Harvard law professor,
Roberto Unger is a bit of a wild man. His over-arching view is that
society is a human artefact, and that being made by men, it can be
remade in whatever way we see fit. His activism leads him to the view
that any consideration of the objective restraints upon action is just
an excuse for hanging back or, worse still, a justification for
entrenched power. In this at least, Unger is refreshingly free of the
viewpoint that nothing can be done. However, when we look at what he
thinks should be done, it is evident that the activism he has in mind is
principally about putting legal constraints upon society. His iconoclasm
is reserved for traditional ideas of freedom, but in his self-
consciously utopian strategies, he is most concerned to restrain power
rather than use it. 

Unger spills a fair bit of ink attacking the traditional idea of the
separation of powers - the distribution of power between different state
bodies such as the legislature, executive and judiciary - as a trick by
conservatives to keep radical hands off of the levers of power. However,
his own proposals for 'empowering democracy' seem designed to go even
further in the disaggregation of power. Unger looks forward to a
multiplication of the 'number of branches in government' so as 'to
prevent any section of society from gaining a lasting stranglehold over
the material or human resources that can be used to generate the future
of society'. Well, you know what he means - capitalist monopolies - but
this is a strangely cautious view. For somebody who started out saying
that we can change the world, his principal ambition seems to be to stop
anybody changing it. 

In particular, Unger wants to see the law intervene in new areas of
social life, that traditional theories of the market are resistant to:
'The adjudication of localised disputes over the boundaries of rights
may best be conducted by officials removed from the pressures of
conflict over uses of governmental power and expert in the entire body
of law.' From reshaping the world Unger has rapidly gone to handing
power to bureaucrats and lawyers, to resolve the intractable problems
that we mere folk are insufficiently expert in the law to resolve. At
least that will ensure that his students will get jobs, though quite
what it has to do with democracy is anybody's guess. 

Interestingly, this is the direction that Habermas' conditional view of
freedom leads him as well. Returning to his old problem that the welfare
state tends to take away people's personal freedom and responsibility,
he proposes a series of safeguards for that eventuality: 'class action
suits or community complaints, as well as the creation of ombudspersons
[sic], arbitration boards, and such, will counteract the disempowerment
of overburdened clients only if collective legal protection...involves
them in the organised perception, articulation and assertion of their
own interests.' As well as the alarming growth of bureaucratic
regulatory bodies, Habermas advocates a quite different model of popular
sovereignty than the one he started with. This is not the people's
choice, it is a consultation procedure, 'involving people' (involve:
include, or entangle, according to my thesaurus), designed to give the
appearance of legitimacy, rather than the fact of popular control. 

Of course, Habermas has no loyalty to the principle of free subjectivity
as such, only to the principle that we all should get along. With that
outlook he is well placed to articulate the changing role of the law,
from a discourse that derives its authority from the free will of
subjects, to a system of social regulation that engages in consultation
exercises to rubber-stamp its regulative system. A recent example is the
imposition of the curfew upon young people on a Glasgow housing estate.
The curfew was the 'proposal' of a people's jury of respectable
citizens, who were of course, wholly uninfluenced by the fact that the
Glasgow police have been lobbying for a curfew for years. But more to
the point, what was in fact an incursion on the rights of young people
could be dressed up as an exercise in freedom instead of an
authoritarian extension of state power. The authority of this citizen's
jury is entirely artificial, having no representative power or mandate
from the local community, but it is 'consultation' all the same. 

Habermas affects to worry that this kind of quasi-legal social
regulation is an incursion upon rights, but his purpose is only to
undermine the case against. He has defined rights in such a mealy-
mouthed way that he can readily demonstrate the democratic case for
immigration controls (p165) and the war against Iraq (p444). In
particular he leans on the idea of the 'security state', quoting Erhard
Denninger to say that 'a society produces so many security risks that it
is able to protect threatened constitutional values only by considerably
expanding the surveillance apparatus'. 

In Germany where the traditional justification of the security forces
has been undermined by the role of the secret police under the Nazis,
there is a decidedly post-traditional renaming of the security forces as
the Office for the Protection of the Constitution. But what exactly is
it that makes the German state so insecure that it demands these special
measures to defend its constitution? Successively, the constitution has
been defended against East Germany's Romeo spies, a handful of skinheads
who are laughably denounced as a return to the Third Reich, and Kurdish
asylum-seekers. One could be forgiven for thinking that it wasn't a very
robust constitution. 

At the core of the legal activism that Habermas and Unger champion is
not an extension of individual rights or popular sovereignty, but the
extension of a kind of legalistic framework for regulating society.
Interestingly, this is not a case for the extension of the law - at
least not extension of a law based on freedom of choice or popular
sovereignty - but for a quasi-legal system of public administration by
lawyers and civil servants. Chillingly Habermas insists that the problem
with these new forms of social regulation is not they are anti-
democratic or unaccountable, but only that they are 'insufficiently
institutionalised'. 
-- 
James Heartfield


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