In this essay, I focus on the concept of “civil society” in Habermas. I trace its development through the four phases of juridification Habermas outlines in The Theory of Communicative Action. To substantiate this development, I look backwards to Habermas’ foundation in the Hegelian and Marxist conceptions of civil society. I then turn to Habermas’ later text Between Facts and Norms, which argues for a strong relationship between the law and civil society. On the one hand, I deeply appreciate how Habermas elevates civil society, making its characteristic intersubjectivity the foundation of law. On the other hand, I worry about where this leaves civil society. In particular, I think the process presented positively in Between Facts and Norms contradicts Habermas’ own analysis of juridification in The Theory of Communicative Action. I think Habermas looks to civil society as a model because it is a space of spontaneous free interaction between autonomous subjects. But when the law assumes the functions of civil society, this space of freedom and autonomy risks disappearing. Before elaborating on this argument about Habermas, I will provide some motivation for why I see this as a risk.
My motivation for pursuing this essay comes from my own work in civil society. In particular, I’ve been a volunteer for seven years with the European Youth Parliament (EYP), a peer-to-peer non-formal education program that reaches 30 000 young people across 40 countries every year. The characteristics I see Habermas so praising in civil society are for me very evident in EYP. Our organization is fully led by the young people who are also the participants and volunteers in the program. In particular, the organization consists of 40 autonomous national chapters, which organize their own events following a common blueprint. These events focus on topics of relevance to political issues in broader society. The primary goal is not to advocate for particular positions on these issues, but rather for young people to develop their own capacities to interact in meaningful discussions. Reading Habermas for me, EYP was always on my mind as my exemplar of what he would see as genuine communicative action. One of our longest debates in EYP is our relationship to traditional politics: specifically, what it means to be “independent” and “non-partisan.” These values are particularly important because they allow us to operate in more politically fraught contexts like Turkey, Armenia, Azerbaijan, and Ukraine. The consequences of being too closely allied to politics can be dire. I have friends from Belarus who have now fled the country because KGB agents came around knocking on their doors after they organized EYP events. I think this is where my underlying suspicion of bringing civil society too close to formal politics comes from.
But now back to Habermas. He sees the emergence of civil society as coinciding with the advent of European modernity. When “early modern, occupationally structured society was transformed into a capitalist market society … ‘civil society’ was constituted, if we use this expression in the sense of Hegel’s philosophy of right” (TCA, 358). “Civil society” here has a double meaning, perhaps more evident in the German original: bürgerliche Gesellschaft. It is both a free market and a social order, undergirded by a legal order that “is supposed to guarantee the liberty and property of the private person” (358). Indeed, this is the double meaning that Hegel also refers to. In Marx, the Young Hegelians, and the Origins of Radical Social Theory, Warren Breckman notes that “Hegel exploited the dual meaning of the German term bürgerliche Gesellschaft in order thus to describe civil society as both the ‘bourgeois’ sphere of market relations and the ‘civic’ sphere of individual and communal rights” (3). On the other hand, “Marx identified ‘civil society’ narrowly with ‘bourgeois society’” (3). Habermas wants to recuperate the Hegelian richness of the term “civil society” and extend it by associating it with his concept of the lifeworld.
The Vormärz period (1815–1848) sees the emergence of the bourgeois Rechtsstaat. Civil society is strengthened by another wave of juridification: “citizens are given actionable civil rights against a sovereign — though they do not yet democratically participate in forming the sovereign will” (359). The latter step comes only with the advent of the democratic constitutional state, under which laws “come into force only when there is a democratically backed presumption that they express a general interest” (360). Habermas sees the latest development of “this line of freedom-guaranteeing juridification [italics in original]” (361) in the welfare state. But the welfare state has an ambiguous relationship to civil society. It recognizes the problems with the “emancipatory intent of … bourgeois civil law” which had “socially repressive effects on those who were forced to offer their labor power as a commodity” (362) and tries to rectify them by implementing a social safety net. But while these “guarantees are intended to serve the goal of social integration, they nevertheless promote the disintegration of life-relations” (364). For me, it is unclear whether this is a specific consequence of the welfare state or more generally the condition of civil society in a contemporary moment dominated by “power and money” (364). When I read passages like the following, I hear in Habermas a prescient criticism of neoliberalism as much as a critique of the welfare state: “the traditionalist padding of capitalist modernization has worn through and central areas of cultural reproduction, social integration, and socialization have been openly drawn into the vortex of economic growth and therefore of juridification” (367–8).
What happened to this clear-eyed analysis of “internal colonization” when Habermas wrote Between Facts and Norms? In my view, in this later work Habermas is remarkably naïve. I think he is right to see as a positive development how “law picks up structures of mutual recognition that are familiar from face-to-face interactions and transmits these, in an abstract but binding form, to the anonymous systemically mediated interactions among strangers” (448). In so doing, law basically takes over civil society: “from the standpoint of social theory, law fulfills socially integrative functions [my italics]; together with the constitutionally organized political system, law provides a safety net for failures to achieve social integration” (448). Yet at the same time as law supersedes civil society, it “is not a narcissistically self-enclosed system, but is nourished by the ‘democratic Sittlichkeit’ of enfranchised citizens and a liberal political culture that meets it halfway” (461).
This is the tension I don’t understand. How can the law both take over the functions of civil society and depend on civil society’s autonomy? Habermas is very clear that “constitutional democracy depends on the motivations of a population accustomed to liberty, motivations that cannot be generated by administrative measures … the structures of a vibrant civil society and an unsubverted political public sphere must bear a good portion of the normative expectations” (461). But surely a “vibrant civil society” runs contrary to legalistic prescriptions. I cannot imagine anything more stifling to EYP than having to run all our activities through legal mechanisms. Indeed, we’ve already seen this in action. Many states have imposed legal requirements on NGOs that have restricted their ability to operate freely and independently. Even in Cyprus, the most prominent pro-immigration rights organization, KISA, has been deregistered because of its failure to comply with legal requirements related to updating their constitution. I could bring in countless examples like this, but they all amount to the same thing: bringing the law into civil society diminishes the latter’s autonomy and vibrancy, which are precisely the traits Habermas elevates. I think Habermas’ own earlier analysis of juridification in The Theory of Communicative Action supports this point. I see the account of civil society advanced in Between Facts and Norms as based on unwarranted optimism about the juridification of civil society. We are left with a shortsighted conception of civil society. Even as it takes center stage as the model of deliberative democracy, as an actually existing sphere it is undermined by the juridification Habermas advocates.
Bibliography
Habermas, Jürgen. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Translated by William Rehg. Cambridge: Polity Press, 1996.
———. The Theory of Communicative Action, volume 2, The Critique of Functionalist Reason. Translated by Thomas McCarthy. Boston: Beacon Press, 1987.
Breckman, Warren. Marx, the Young Hegelians, and the Origins of Radical Social Theory: Dethroning the Self. Cambridge: Cambridge University Press, 1998.