On the Death of Jurgen Habermas

A Day to Mourn, A Hero to Celebrate

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Jurgen Habermas died today, near Munich. He was one of the titans.

In sports, you might say, with a certain tone of voice: Magic, or MJ, or LeBron. In philosophy, or academia more generally, you say, with that same tone of voice: Habermas.

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A long time ago, as a young law professor, I was walking with John Rawls. (What a privilege; surreal.) He asked me, “Who do you think is the greatest thinker about democracy?”

If there was a thought bubble over my head, it would have said, “John Rawls has just asked you to name the greatest theorist of democracy. You must be hallucinating, or dreaming. Wake up!”

I resisted the urge to run away. I mumbled something and asked him what he thought. He said, with a degree of gravity: “Habermas.” Then he paused and noted, with some emotion, that Habermas was German and grew up under Nazism.

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I was privileged to meet Habermas on several occasions. He was so curious, and so generous. He was a bit formal, but so kind. He seemed like the world’s best listener. Know the Bob Dylan song, “Forever Young?”

Habermas seemed like that to me, in his openness and appreciation of others. He was deeper than all of us, of course, and he knew infinitely more, but he never gave a sense that he knew that.

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I would much like to write something new about Habermas, but his death has hit me like a ton of bricks, and so instead, here’s a reproduction of most of a long NY Times review I did of one of his greatest books, Between Facts and Norms, back in (wow) 1996).

The review wasn’t up to the occasion, of course, but I did my best.

You can find the full review here: https://www.nytimes.com/1996/08/18/books/democracy-isnt-what-you-think.html

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Most people know that the Constitution’s First Amendment provides the rights to freedom of speech and to the free exercise of religion. But in the first Congress some people seriously proposed that the First Amendment should contain another right: the right on the part of constituents ‘’to instruct’‘ their representatives how to vote. The first Congress ultimately rejected the proposal. Roger Sherman made the central argument against it. In Sherman’s view, representatives had a ‘’duty to meet others from the different parts of the Union, and consult. . . . If they were to be guided by instructions, there would be no use in deliberation.’‘ A right to instruct would destroy the object of the meeting.’‘

By rejecting the right to instruct, the first Congress affirmed a distinctive concept of politics. It favored what might be called a deliberative democracy, in which representatives would be accountable to the people but also operate as part of a process that prized discussion and reflection about potential courses of action.

Jurgen Habermas is one of the most important political philosophers of the 20th century; he has been preoccupied for much of his life with the problem of political legitimacy. Under what circumstances is it legitimate for political authorities, mere human beings, to exercise power over other human beings? It is unsurprising that a German philosopher - in his teens during the Nazi period and a witness to countless other atrocities since - should direct his attention to this question. Mr. Habermas thinks that the question is especially urgent in an era that is ‘’postmetaphysical,’‘ in the sense that it has lost the sense that we have wholly external foundations by which to ground our judgments and choices. Whether or not we believe that God exists, it seems clear that as citizens in a heterogeneous society we must proceed on the understanding that our choices are our own. But even as he insists on this point, Mr. Habermas draws a line against modern irrationalists, many of them - like Michel Foucault and Jacques Derrida - influential within the modern academy. Mr. Habermas says, tellingly, that those who oppose reason and the Enlightenment can give no account of the basis for their own rhetoric, which seems inspired by the Enlightenment commitment to human liberation.

In his influential past work, Mr. Habermas offered a ‘’theory of communicative action’‘ whose centerpiece is the ‘’ideal speech situation.’‘ In the ideal speech situation, all participants have equal power, attempt to reach understanding, do not act manipulatively or strategically, and understand their obligation to offer reasons. In this situation, outcomes depend on what he calls ‘’the unforced force of the better argument.’‘

This is abstract stuff, and for many years Americans, Germans and many others have been interested in the real-world implications of Mr. Habermas’s work. For example: Can we derive a set of rights from those ideas? Real-world politics is far from the ideal speech situation; might that notion bear on the obligations of the mass media, on issues of race and sex, on campaign finance law? Mr. Habermas’s new book, ‘’Between Facts and Norms,’‘ is both the culmination of a lifetime of thought about political legitimacy and his effort to bring his argument closer down to earth by developing new understandings of law, democracy and the relationship between them.

Much of Mr. Habermas’s analysis turns on an exploration of two accounts of democracy, which he labels ‘’liberal’‘ and ‘’civic republican.’‘ Under the liberal account, rooted in the work of Thomas Hobbes, politics is a process of bargaining, a matter of aggregating private interests. Liberals define citizens as holders of negative rights against the state. In the liberal view, politics is a struggle among interest groups for position and power. The civic republican account, rooted in Aristotle and Rousseau, is very different: politics is not a mere matter of protecting our selfish interests but instead an effort to choose and implement our shared ideals. Civic republicans see rights not as negative constraints on government, but as promoting participation in political practices through which citizens become authors of their own community. Consider the right to free speech and the right to vote. For civic republicans, politics is a matter of discussion and self-legislation, in which people participate not in bargaining and compromise but in forms of reflection and talk.

The organizing theme of the book is Mr. Habermas’s rejection of both views and his effort to defend instead what he calls ‘’deliberative politics’‘ or deliberative democracy.’‘ This is emphatically a procedural ideal. It is intended to give form to the notion of an ideal speech situation. Like civic republicans, deliberative democrats place a high premium on reason-giving in the public domain. But like liberals, they favor a firm boundary between the state and the society, and they insist on a robust set of constraints on what the government can do. Mr. Habermas sees majority rule not as a mere statistical affair, an effort to tally up votes, but instead as a large social process by which people discuss matters, understand one another, try to persuade each other and modify their views to meet counterarguments. In this way we form our beliefs and even our desires.

The deliberative conception of democracy anchors Mr. Habermas’s theory of political legitimacy. For him, democracy does not exist to secure rights with which we have been endowed by our Creator; nor is it simply a way to allow us to throw the rascals out; nor is it a mechanism for processes of accommodation, compromise and the exercise of power. Democracy, ideally conceived, is a process by which people do not implement their preferences but consult and deliberate about what values and what options are best.

Mr. Habermas’s argument sees constitutional law as institutionalizing the presuppositions of a system of discussion by which legitimate lawmaking is made possible. Thus his account of fundamental rights includes the right to ‘’equal opportunities to participate in processes of opinion- and will-formation in which citizens exercise their political autonomy and through which they generate legitimate law.’‘

Mr. Habermas thinks that the principal goal of a court, interpreting a constitution, should be to protect the procedural preconditions for deliberative democracy. The point suggests an especially aggressive role for courts when democratic processes do not fit with the aspirations to deliberation and democracy - for example, when people are excluded from politics, or when outcomes reflect power and pressure rather than reason. This is how Mr. Habermas tries to reconcile the tension between law and democracy, seeing them not as opposed but instead as mutually supportive. Law can create the preconditions for democracy, by insuring freedom of speech, voting rights, political equality and so forth. Democratic ideals can inform the appropriate content of law.

. . .

For those interested in a deliberative approach to democracy, much future work lies not in abstractions but in more concrete thinking designed to help with concrete problems. American democracy, for example, is far from deliberative, and we might ask how to make it more so. Can the mass media - even the Internet - be harnessed to promote political deliberation? How can a deliberative democracy operate when there are huge disparities in both wealth and education? What sorts of constraints should be imposed on the permissible substance and form of public talk? Should we strengthen local democracy? Mr. Habermas does not much take up these issues.

But this is a work of political philosophy, dealing with the foundations of democratic theory, and as such it has great value, above all because of its careful exposition of deliberative democracy and the potential for productive interactions between democracy and law. The 20th century is ending at a time when democratic aspirations are proliferating throughout the globe; Jurgen Habermas has provided one of the best and, I think, most enduring accounts of the values that underlie those aspirations.

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Rest in peace, Professor Habermas. We’re in your debt. We celebrate you. We’ll not see your like again.