Rights are nowadays central to the political vocabulary and important for emancipatory struggles. For this reason, there is much theorising about what rights make possible. Less considered are usually the limitations of rights with regard to emancipation . However, in the tradition of the modern critique of law , from Hegel and Marx onwards, this question is central. In this study, I draw on this tradition for problematising Jürgen Habermas’ conception of law and democracy.
In Between Facts and Norms, Habermas (1992) argues that by outlining a system of rights , he formulates the modern promise of self-legislation by citizens in ways that are adequate for functionally differentiated societies. The system of rights is supposed to resolve fundamental issues about the relations between private and public autonomy and the constitutional principles of human rights and popular sovereignty. Moreover, the reconstruction of the basic features of constitutional democracy has an emancipatory aim, reflecting on the conditions of the possibility of ‘emancipated forms of life about which the participants themselves must first reach an understanding’ (Habermas 1992 [1996]: xli).
Stating that we should elaborate on these conditions through the legal medium is not self-evident. To be sure, that law is the language for autonomy is an understanding that several political philosophers and social theorists have advanced. The legal subject and the basic idea of legal equality of persons are central for much of the theorising of freedom and equality in modern societies. The understanding of the political community as a legal community has played a key role in much of modern thinking about politics. Moreover, the understanding of reason as ‘legislative’, strongly influenced by Kant, is a key idea in modernity. However, we also find much criticism of these ideas in what we can call the modern critique of law . To some extent, this tradition goes back to Hegel . Often, the criticism that rights lead to an atomised conception of the political community stands at the centre of the critique that draws on Hegel. Even though this study relies on certain themes in the Hegelian tradition, more important is the critique that draws on Marx . Often associated with the Marxian tradition is the criticism of law as ideology , but what I find both most interesting and convincing in this tradition is the analysis of the dialectic of law . This entails that law is condition for both emancipation and domination (Buckel 2007, 2009a; Fine 1984; Menke 2013, 2015; Zabel 2015).
Marx acknowledged that legal equality is emancipatory, releasing individuals from status hierarchies and dependencies. Modern law played a key role in emancipation from feudal relations and institutionalising another societal order (Fine 1984). A key element of this order is that legal equality is an attribute of all human beings. Modern legal personhood, in contrast to Roman law, therefore, does not depend on status, whereby was implied the difference between the legal person and the slave: ‘Hence in Roman law, even personality itself is only a certain standing or status contrasted with slavery’, as noted by Hegel (1821 [1952]: § 40 (39)). Unlike this relative freedom, the freedom expressed by legal personality is the infinite and universal freedom enjoyed by every human being. However, capitalist exploitation is also part of this new order, which for Marx pointed to intrinsic limitations to rights as vocabulary of emancipation . In Marx’ case, the reason for suspecting these limitations arose from his observation that capitalist exploitation was compatible with legal equality. Not only are they compatible, but also they seem related to each other. It seems that legal equality plays a crucial role in enabling exploitation because the latter builds on ‘free’ labour power. Contractual freedom is condition for the possibility of capitalist exploitation (see Buckel 2007, 2009a; Fine 1984; Menke 2013). Thus, Marx criticised the vocabulary of rights, not because he did not ‘believe’ in rights but because he regarded legal equality and capitalist exploitation as connected in intrinsic ways.
For this reason, Marx thought that modern law is highly ambivalent. He was hesitant to think of emancipation from capitalist exploitation in legal terms. While rights claims were certainly important to labour movements, it was also widely acknowledged that winning rights would not mean the end to exploitation. For instance, Friedrich Engels and Karl Kautsky (1887) argued in their discussion about ‘juridical socialism’ (Juristen-Sozialismus) that the legal perspective is inadequate for formulating the societal transformations that labour movements seek to accomplish. Others followed in their footsteps, notably Otto Kirchheimer (1928), who thought that legal framing of labour relations neutralised and distorted class conflicts (Buckel 2009a; Loick 2014a; Teubner 1993).
Kirchheimer is of interest because Habermas (1981, vol. 2: 524) mentions him as source of inspiration in The Theory of Communicative Action when addressing welfare state law as example of the reification he analyses as the colonisation of the lifeworld. Unlike Marx, who focused on private law , Habermas focuses on welfare state law. This is not surprising of course. The welfare state developed out of private law liberalism , dominant at the time of Marx. This involved changes of the relation between private and public law . In the early twentieth century, the democratic constitution was given priority over private law. Public utility, welfare and social and economic equality, articulated in public law, took precedence over private ordering (Habermas 1992: 482ff; Jansen and Michaels 2007; Merryman 1968). 1 Habermas notes that welfare state law is emancipatory in several ways but also normalises in various respects, for instance, forcing individuals to adapt to ‘normal’ behaviour at work, in family relations, etc. (Habermas 1981, vol. 2: 530ff; Habermas 1992: Sect. 9.2). In The Theory of Communicative Action, Habermas (1981 [1987], vol. 2: 364) argues that welfare state law is intrinsically dilemmatic:
The dilemmatic structure of this type of juridification consists in the fact that, while the welfare-state guarantees are intended to serve the goal of social integration, they nevertheless promote the disintegration of life-relations when these are separated, through legalized social intervention, from the consensual mechanisms that coordinate action and are transferred over to media such as power and money.
Habermas’ analysis of the dilemmatic structure of juridification in the welfare state builds on his conceptualisation of society in terms of systems and lifeworld , looking at welfare state normalisation as an example of system colonisation of the lifeworld. Habermas (1986) later abandons the colonisation analysis and in Between Facts and Norms; he argues that it was too rash to characterise welfare state law as dilemmatic as such (Habermas 1992: 502). Instead, he now understands the problem of guaranteeing and taking away freedom as following from the dialectic of legal and factual equality central to the welfare state. With this dialectic, Habermas has in mind the familiar struggles around the relation between de jure and de facto equality, in particular, relating to material conditions for equality. Habermas (1992 [1996]: 416) describes this in the following way:
[M]aterialized law is stamped by an ambivalence of guaranteeing freedom and taking it away, an ambivalence that results from the dialectic of legal and factual equality and hence issues from the structure of this process of juridification . Still, it would be rash to describe this structure itself as dilemmatic.
The problem that welfare state law both guarantees and takes away freedom thus remains a problem for Habermas, but the understanding of this problem has changed. He now argues that the proposed reconstruction of private and public autonomy allows for formulating an ‘intuitive standard’ for judging whether measures and regulations promote or reduce autonomy (Habermas 1992 [1996]: 417).
There are several reasons for Habermas’ change, discussed more in-depth in the following chapters of this book. In relation to this change, I focus on two questions.
The Focus of the Study
The first question concerns the dialectic of law , law being condition for both emancipation and domination. This dialectic involves a reversal of how law is condition for emancipation . However, law is simultaneously condition for the possibility of domination. Domination unfolds on the basis of law. Marx’ analysis of the relations between legal equality, contractual freedom, and capitalist exploitation is an example. Capitalist exploitation is the opposite of equality, but legal equality is also basis for exploitation. Habermas’ analysis of welfare state as dilemmatic is another example. Welfare state law enables emancipation, for instance, through the recognition of social rights . However, these rights are simultaneously condition for the possibility of normalisation . When discussing the dialectic of law, it is central to keep both dimensions in mind. Law is condition for both emancipation and domination.
Habermas’ analysis of welfare state law in The Theory of Communicative Action takes this dialectic of law into account in ways that he does not in Between Facts and Norms. I think this is a problem, in particular, when assuming, as Habermas does, that the legal medium is condition for the possibility of emancipation. In my view, there are reasons for addressing the dialectic of law in the context of Habermas’ theorising of law and rights. We need to understand the limitations of the legal medium in order to properly assess its possibilities. This is part of an enlightenment process. Habermas argues in Between Facts and Norms that there are no functional equivalents to positive law when addressing how democracy is possible in modern societies. However, Habermas claims much more in favour of the legal mediu...