To overcome the gap between norms and facts, Habermas appeals to the
medium of law, which gives legitimacy to the political order and provides the system with
its binding force. Legitimate law-making itself is generated through a procedure of public
opinion and will-formation that produces communicative power. In its turn, communicative
power influences the process of social institutionalization.
I will argue that the revised notion of power as a positive influence
that is produced in communicative space, runs contrary to Habermas’ original concept
of power in his theory of communicative action where power is understood as a coercive
force that has to be avoided in order for the discursive situation to prevail. As such, I
believe that the introduction of communicative power and its close tie to "legitimate
law" and political system greatly reduces our critical ability in respect to
political systems as exercised in liberal-democratic states. In addition, I will argue
that this revision alludes to a redrawing of the boundaries between the life-world
and the system in favour of the latter, and consequently indicates a shift to the right in
Habermas’ latest work.
The treatment of the role and meaning of the concept of
"power" within the theory of Jurgen Habermas, as it was elaborated in the two
volumes of The Theory of Communicative action and later in Moral Consciousness
and Communicative Action,(1)
has undergone some significant changes in his latest work: Between Facts and Norms.(2)
In this new book he introduces the term Communicative power which has to be seen in
the context of his ambitious project of theorizing deliberative democracy, or, in his
words "government by law". (BFN, p.132) According to the advocates of
deliberative democracy, citizens’ participation in the democratic process has a
rational character. Deliberative democracy explains the process of opinion and
will-formation as a public discursive activity where citizens are engaged in argumentation
that is aimed at promoting the more generalizable interests by the force of a better
argument. View in this light, Habermas’ present project is an imposing attempt to
overcome the charges of emptiness and ineffectiveness, leveled against his "discourse
ethics" that results from the gap between the normative and the empirical, by drawing
out the political, legal, and institutional implications of the theory. Habermas’
solution, as stated at the end of both TCA and MCCA, is that discourse
ethics needs to be complimented by a theory of socialization that accounts for the
institutionalization of discourse ethics. (TCA, Vol. II, p.173-74; MCCA,
p.209) He believes that,
With the discourse ethics as a guiding thread, we can indeed
develop the formal idea of a society in which all potentially important decision-making
process are linked to institutionalized forms of discursive will-formation.(3)
In Between facts and Norms, Habermas presents a social theory
that addresses the tension between moral norms and practical context by legal
institutionalization that is based on discursive procedures.
The tension between facticity and validity—as the German title of
the book Faktizitat und Geltung suggests—appears at different levels. The internal
aspect of this tension can be seen between law as demarcating the range of one’s
actions and choices, which are social facts, and law as connected with a universalizable
principle of rights, which is the source of law’s legitimacy. To ensure an impartial
justification of norms in establishing an account of a legitimate legal system, or civil
society, the discourse principle "D" states: "Just those action norms are
valid to which all possibly affected persons could agree as participants in rational
discourse." (BFN, p.107)(4) According to
Habermas, this principle is a norm that applies to a broader set of actions than moral
actions. The discourse principle is, then, followed by the principle of universalizability
"U" and the principle of democracy. Adopting a Kantian perspective Habermas take
U to refer to individual autonomy and rights that function as a normative basis for moral
argumentation, and principle of democracy(5) to sate that
"only those statutes may claim legitimacy that can meet with the assent (Zustimmung)
of all citizens in a discursive process of legislation that in turn has been legally
constituted." (BFN, p.110) But unlike Kant, who subordinates the legal norms
to moral ones(6), Habermas sees the relation between the
legal norms and moral ones as co-original; that is to say, he sees them as
equiprimordially presupposing each other.
The principle of discourse can assume the shape of a principle of democracy
through the medium of law only insofar as the discourse principle and the legal medium
interpenetrate and develop into a system of rights that brings private and public
autonomy into a relation of mutual presupposition. (BFN, p.128)
Hence, legitimate lawmaking is understood as a result of
institutionalized procedures that convert citizens’ practice of self-determination in
the form of communicative and participatory rights into the binding decision of political
power. Habermas sees modern law as a system of rights comprised of a set of abstract
rights recognized by all citizens in the form of a constitution or moral codes. Viewed as
system of rights, modern law brings together popular sovereignty and human rights, showing
the co-originality of private and public autonomy. So Habermas writes,
By securing both private and public autonomy in a balanced
manner, system of rights operationalizes the tension between facticity and validity, which
we first encountered as a tension between the positivity and legitimacy of law. (BFN,
p.129)
This guarantee, Habermas contends, would avoid the mistake
characteristic of both the liberal and civic republican tradition each tending to
emphasize one form of autonomy as the basis of legitimacy while ignoring the other. In his
reconstruction of legitimate law, rather than reducing one aspect of autonomy to the
other, human rights and popular sovereignty are equiprimordially juxtaposed. The medium of
law, then, maintains the tension between the concrete context of claims of reason and
their context-transcending idealization, without allowing the tension to be resolved in
favour of either of the two poles. In light of such a construct of modern law, the central
claim of the book comes to the fore: there is an internal relation between the rule of law
and democracy. (BFN, p.449)
According to Habermas modern societies exhibit a tension between
validity claims of legal order expressed by constitutional and democratic institutions and
different forms of social and political power that intervene and interrupt the exercise of
legitimate lawmaking. This tension is another aspect of the tension between facticity and
validity, one that refers to "the internal relation between law and politics". (BFN,
p.133) Confronting this tension, the task of the theory is to provide an account "of
the legitimacy of a political order and legitimation of the exercise of political
power." (BFN, p.132) In this context, state power is seen as what reinforces
the system of rights that governs the interaction of equal citizens. Habermas believes
that the analysis of the relation between law and power will not bear fruit unless it is
connected to an account of public reason. For him,
[t]his latter account must ultimately refer to democratic
process of "opinion and will formation" in the public sphere. As a formation of
opinion and will, public discourse is not merely a cognitive exercise but mobilizes
reasons and arguments that draw on citizen’s actual source of motivation and
volition. It thereby generates a "communicative power" that has a real impact on
the formal decision making and action that represent the final institutional expression of
political "will". (BFN, p. xxviii)
Therefore, in analysing the internal tension of the rule of law,
Habermas supplements the account of state power and legal procedures with an account of
public discourse. This account is designed to connect "the informal discursive
sources of democracy with the formal decision making institutions." (BFN, p.
169) Hence, there is a circular and reciprocal relation among communicatively generated
power, legitimate law, and state power that, Habermas believes, are co-originally
juxtaposed. In his words,
Informal public opinion-formation generates
"influence"; influence is transformed into "communicative power"
through the channels of political elections; and communicative power is again transformed
into "administrative power" through legislation.(7)
This influence, carried forward by communicative power, gives law its
legitimacy, and thereby provides the political power of the state its binding force.
According to Habermas the co-originality of legitimate law and
political power suggests that there is a functional connection between them. After they
serve their intrinsic functions—realization of collective goals
or maintenance of the system for power, and stabilization of behavioral expectation for
law—, power functions for law as the political
institutionalization of law, and law functions for power as the legal organization of the
exercise of political power. The functionalist codes of both law and power, then, suggest
that they have different perspectives: "Law requires a normative perspective, and
power an instrumental one". (BFN, p. 482) This difference leads Habermas to
propose a distinction in the concept of the political itself which is constant with the
duality of normative and instrumental perspective. He thus distinguishes between communicative
power and administrative power. (BFN, p.483)
The introduction of this distinction, I believe, indicates a redrawing
of the boundary between the life-world and system in favour of the latter. I will shortly
elaborate on this revision, but first we need a brief description of Habermas’
reconstruction of the notion of communicative power. In constructing the concept of
communicative power, he relies on Hannah Arendt’s view of "power as the
potential of a common will formed in noncoercive communicative" (Macht),
that is opposed to power as in "violence" (Gewalt). (BFN,
p.147-48)
In light of this description, it appears that what Habermas used to
call "power" is now called "violence" as the imposition of one’s
will to manipulate or coerce another. What was previously known as a "discursive
situation", freed from external constraints that amounted to intersubjective
agreement, is now referred to as "communicative power" that mobilizes public
opinion and will-formation, influencing the process of institutionalization and hence
determining the legitimacy of law. The important consequence of this distinction is that
it aligns power with legitimate law. Habermas draws the following implication,
Here the law arising from renunciation of natural violence
serves to channel a legitimate force identified with power. Arendt’s distinction
between power and violence negates the classical task of finding a substitute for resource
of justice that once flowed from a self-legitimating natural law. (BFN, p. 149)
The meaning of communicative power has thus been far removed from the
negative connotation of the original concept of power. As a legitimizing force behind
administrative power, communicative power is positive, necessary, and co-original with
administrative power and legitimate law. It is apparent at this point that there has a
significant move from the original concept of power as influence that distorts the
discursive situation—which was to be avoided—to the
constructed notion of communicative power. Communicative power is again described as a
sort of influence which is the fruit of agents’ consensual interaction rather
than the result of their conflictual relation. Now, in respect to the possible
implications of this new characterization of power I would like to rise the two following
points.
I
The first question we need to ask is whether Habermas’ theorizing
has closed the gap between the normative and the empirical as he intended. In the first
glance it seems that his distinction between power and violence that allows for a
legitimate use of power in the life-worldly domain is an improvement over his original
treatment of power. He believes that his differentiation between power as generated
communicatively and power as coercive influence or violence is capable of
discriminating between a power which deserves to be esteemed and a power which deserves
to be disparaged.(8) However, even, on Habermas’ own
account, it is only the legitimate law-making as engendered by communicative power that
enjoys a normative perspective, while the perspective of political power remains an
instrumental one steered by the media of money and repressive power. Hence, in the end it
still seems that in so far as the question of normativity goes, it still pertains to the
communicative domain of life-world separated from the economic and political subsystems.
And in so far as the question of the repressive nature of power goes, it is still the
steering mechanism behind the systemic domain of political power. In other words, the
original gap remains unbridged. In this sense, one can say that despite the change of
terms the content of what Habermas meant by power remains the same, namely, in order for
democracy and justice to prevail the communicative process of public and will and
opinion-formation should not be guided by any influence but the force of better
argument. This ideal could be reached in the life-worldly domain but not in the systemic
domain.
However, if we read the introduction of communicative power and its
close connection to administrative power via the medium of law to suggest that the
systemic domains of politics too can be oriented towards understanding and be separated
from the influences of the coercive forces of money and power, then we are witnessing a
significant change in the thrust of Habermas critical theory. To suggest that the
political subsystems can be governed normatively alludes to rethinking of his original
position that, as I mentioned earlier, pertains to redrawing of the boundary between the
life-world and system. This revision brings us to my second point.
II
Having realized, in his Structural Transformation of the Public
Sphere, that the derivation of the source of legitimacy for Western democracies from
the specific characteristics of political public sphere of late capitalism is too
exclusionary and restricting, Habermas has moved towards grounding democratic legitimacy
in the institutionalization of discursive interaction. To achieve this end, he constructs
the concept of communicative power as what possesses the best of both worlds (i.e. the
life-world and system): it is democratically generated and aimed at reaching an agreement,
while exercising influence over the processes of political decision-making giving
them legitimacy. Consequently, in aligning communicative power, legitimate law, and state
power, Habermas’ approach seems to have legitimized the political power as exercised
in Western democracies. But, in doing so, Habermas risks robbing us of our critical
ability. For, tying the existing political and legal orders so closely to communicatively
generated power as their source of legitimacy seems to immunize the political power to
criticism. In seeing the principle of opinion and will-formation as underlying
presupposition of both political system and the life-world by overstepping its boundary.
However, if one, like Habermas, believes that "law has a legitimating force only so
long as it can function as a resource of justice," (BFN, p. 145) then having
already attributed legitimacy to political powers of Western societies leaves no room for
the test of justice.
The implication of this change is sever because it suggests that, in so
far as we live in Western liberal-democratic states, there is no illegitimate use of
power; an assumption that ultimately disarms us of our critical ability to reproach the
system. This is why I venture to say that Habermas’ BFN marks a shift to the
right because it results in legitimating the political system of capitalist economy. This
would be a costly shift, for if the goal of political action in deliberative democracies
is to reach consensus –around the more generalizable interests—as its ultimate telos,
then the voices of difference in today’s pluralist societies, which are less
generalizable or not generalizable at all, cannot be heard and hence are excluded from the
democratic process of opinion and will-formation.
Given Habermas’ dedication and commitment to the issue of justice,
however, it is obvious that he could not accept the above implication. As a response, he
would draw attention to the reflexivity of discursive situation, which involves the
self-critical character of communication. The reflexive nature of discourse refers to the
ideal supposition that all validity claims in discourse are subject to critical
evaluation. Habermas believes that the constitutional courts in liberal-democratic states
are best suited to play this reflexive role.(9) Hence,
according to the reflexive character of deliberative democracy, everyone is able to
challenge and contest the accepted norms and traditions in the public sphere. The problem,
however, is that while discourse’s reflexive mechanism allows to critique the
normalizing effect of the generalizable interests, it does not provide a procedure through
which the less generalizable interests of the weaker voices and minorities generate any influence
over legal and political institutions, for even in discursive terms, these kinds of
interests cannot amount to an all encompassing agreement. It is simply naïve to think
that in the process of opinion and will-formation the communicative power of the lobby
groups and that of minority groups exercises the same influence. Like any abstract
moral construct, the legitimate law remains incapable of animating the citizens of modern
societies to engage discursively and deliberate in the procedures of legal and political
decision-making. The ideal of communicative power is generated and injected from the
bottom. In order for it to exercise influence over the system, it needs proper
institutions that secure its emergence. But, institutionalization is organized and
legislated from the top. Due to this gulf between facts and norms, their reciprocal need
for each other is never satisfied, and like a dog chasing its tail, it always remains one
step behind.
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