1 The Unforced Force of the Better Argument: Reason and Power in Habermass Political Theory Amy Allen Dartmouth

College DRAFT please do not cite or circulate without authors permission The tension between reason and power has a long and illustrious history in political theory. It emerges prominently in Book One of Platos Republic, in Thrasymachuss challenge to Socrates to prove to him that justice is something other than the advantage of the stronger, and its line of descent runs, on the reason side, through Plato to Kant to Rawls, and on the power side, through Machiavelli to Nietzsche to Schmitt. One of the distinctive and, in my view, distinctively appealing features of the Frankfurt School of critical theory, what sets it apart from normative political philosophy, on the one hand, and empirical political science, on the other hand, is that it explicitly concerns itself with this tension between reason and power. Such a concern is evident in Max Horkheimers programmatic essay, Traditional and Critical Theory, the essay that is typically taken to mark the beginning of the Frankfurt School project. In that essay, Horkheimer argues that those who adopt the critical attitude must both identify themselves with [the social] totality and conceive it as will and reason and, at the same time, they must acknowledge that existing social reality is structured by war, oppression, and capitalism.1 The existing social world is both the critical theorists own world, a world of collective human creation of which she is a part, and not her own, but an alien world structured by unjust power relations. As a result, Horkheimer writes, the identification. of men of critical mind with their society is marked by tension, and the tension characterizes all the concepts of the critical way of thinking.2 On the one hand, critical theory and the critical theorist are rooted in, emerge out of and are shaped by existing social reality; on the other hand, the critical theorist cannot accept existing social reality as it is but must instead critique and even

2 condemn it. This dialectical character of the self-interpretation of contemporary man leads, for Horkheimer, to a critique of the Kantian conception of pure reason, for reason cannot become transparent to itself as long as men act as members of an organism which lacks reason.3 But it is at precisely this point that a version of the problem of ideology that has plagued Marxist and post-Marxist thought rears its ugly head. If reason cannot become transparent to itself so long as we are part of a social world that lacks reason, then how are we ever to know when reason is lacking in the first place? Does not the very claim that the social world lacks reason or is irrational rely on some prior assumption of reasons capacity for self-transparency, at least to some degree? Recognizing these difficulties, Horkheimer emphasizes that the difference between critical and traditional theory springs in general from a difference not so much of objects as of subjects.4 That is, what is distinctive about critical theory is its conception of the critical subject as self-consciously rooted in and shaped by the power relations in the society that she nevertheless aims self-reflexively and rationally to critique. Up to this point in the essay, Horkheimer highlights the ambivalent relationship between reason and power, and emphasizes the methodological importance for critical theory of appreciating and thinking through this ambivalence. And yet, Horkheimer goes on to say: Critical thinkingis motivated today by the effort really to transcend the tension and to abolish the opposition between the individuals purposefulness, spontaneity, and rationality, and those work-process relationships on which society is built. Critical theory has a concept of man as in conflict with himself until this opposition is removed. If activity governed by reason is proper to man, then existent social practice, which forms the individuals life

3 down to its least details, is inhuman, and this inhumanity affects everything that goes on in society.5 In this passage, Horkheimer is sanguine about the possibility and clear about the necessity of transcending the tension between reason and existing social relations and practices that are structured by power relations. The conflict between the reason proper to man and the inhuman social conditions that deform our existing practices is figured here not as an essential tension, but instead as a socially contingent one, a conflict that could be resolved through social struggle. With this move, Horkheimer seems to resolve the tension between reason and the power relations rooted in the economic structure of society in favor of reason, which is proper to man, and by whose lights existing social practices can be judged as inhuman. In my view, Horkheimers foreclosing of the tension between reason and power is highly problematic. Precisely what is so promising about critical theory as a methodological approach is its attempt to hold open the tension between reason and power and to render it productive for social and political critique. Indeed, this very tension is already apparent in most definitions of critical theory, as for example, the relatively thin (and thus hopefully non-controversial) definition recently offered by Nancy Fraser: a theory is critical, as opposed to traditional, only if it is guided by a practical, emancipatory interest in unmasking domination.6 Critical theorists must be attuned to the depressing realities of domination, including the ways in which these realities shape both the subject position of the critical theorist and the practice of critical theory itself, while still hopefully articulating the possibilities for emancipation. Resolving the tension between reason and power (in either direction) renders critical theorists unable to accomplish this dual aim.

4 In what follows I shall argue that Horkheimers problematic foreclosure of the tension between reason and power is repeated in more recent critical theory by his intellectual fellow traveler, Jrgen Habermas. Like Horkheimer, Habermas explicitly thematizes the tension between reason and power, only ultimately to foreclose it in the direction of a rationality that has been conceptually and methodologically purified of the strategic power relations that pervade social reality. In order to make this case, I will examine in detail Habermass most complex, sophisticated, and ambitious attempt to confront the tension between social facticity and normative validity, an attempt found in his magnum opus of legal and political theory, Between Facts and Norms.7 I begin by examining the conceptual framework of Between Facts and Norms, the core of which is the internal tension between facticity and validity. Habermas proposes that although this tension cannot be eliminated, it can be operationalized through the structure of the constitutional state, in particular through the role that law plays in mediating between the generation of communicative power and the administrative employment of power. This will lead me to a discussion of Habermass conception of power. My focus here will be on what I will call, following Joel Whitebook,8 the demand for purity plaguing the structure of Habermass conception of power, a demand that leads him to attempt to insulate communicative action and power from the pernicious influence of strategic power. In order to make the case that the demand that communicative power be purified of or insulated from strategic power is unreasonable and unattainable even at the conceptual level, I consider the relationship between social power and subjection. Finally, by way of a conclusion, I consider the consequences of Habermass foreclosure of the tension between reason and power for his meta-philosophical position. In the end, I argue that this line of criticism, if convincing, need not compel Habermas

5 to abandon his normative theoretical and political agenda, but that it does require him to defend that program in a more contextualist way.

The Internal Tension between Facticity and Validity Habermas begins by claiming that the tension between facticity and validity is among the fundamental concepts of the theory of communicative action. He presents this tension in terms that recall Horkheimers account, discussed above, of the tension between a reason that is proper to human beings and the actually existing unjust societies in which that reason is realized. As Habermas puts it: The theory of communicative action already absorbs the tension between facticity and validity into its fundamental concepts. With this risky decision it preserves the link with the classical conception of an internal conception, however mediated, between society and reason, and hence between the constraints and necessities under which the reproduction of social life is carried out, on the one hand, and the idea of a conscious conduct of life, on the other (BFN, 8). However, Habermas admits that this methodological strategy comes with a cost. It leaves him with the problem of explaining how the fragile bonds of communicative validity can secure the reproduction of social order, especially in post-conventional, internally differentiated, modern societies in which the integrating force of ethical and religious traditions has waned. In an effort to address this problem, Habermas turns to positive law, which, he says, offers itself as a candidate for such an explanation. Legal norms of this type make possible highly artificial

6 communities of free and equal legal persons whose integration is based simultaneously on the threat of external sanctions and the supposition of a rationally motivated agreement (ibid). In other words, the social integration made possible by positive law is based simultaneously on positive, coercive force and on a rational claim to legitimacy. Still, Habermas makes an interesting and, I think, significant terminological choice inasmuch as he tends to refer to the coercive force of law as facticity, rather than as force or violence.9 This has the effect of taming somewhat the paradoxical relationship between force or violence and law that is so prominent in contemporary debates about sovereignty,10 transforming it into a tension that is much easier (though still not easy) to dispel. Habermass terminological choice may be traced to the connection between his reflections on law and his earlier work in philosophy of language. As is exceedingly clear in his polemical attacks on Nietzsche, Heidegger, Horkheimer and Adorno, Derrida, and Foucault,11 Habermas goes to great lengths in his philosophy of language to ward off the reduction of validity to power that he sees as symptomatic of the counterdiscourse of modernity.12 To be sure, Habermas does admit that the task of justification, or, in other words, the critique of validity claims carried out from the perspective of a participant, cannot ultimately be separated from a genetic consideration that issues in an ideology critique carried out from a third-person perspective of the mixing of power claims and validity claims.13 But notice how this passage performs the very separation that it claims is impossible, by confining the ideology critique of the mixing of power and validity claims to the third-person, empirically grounded observers perspective, thereby insulating it both methodologically and conceptually from the first person, rationally reconstructive task of normative justification carried out from the participant point of view. With this move a move that we will see repeated in the theory of power as developed in

7 Between Facts and Norms Habermas simultaneously domesticates power and insulates validity from its effects. Even with his terminological transmutation of force, violence and power into the more benign sounding facticity, Habermas still faces the tall order of negotiating the tension between facticity and validity that is internal to the presuppositions of communication. This brings us to the difficult and crucial notion of the context-transcendence of validity claims, for it is here that the tension between facticity and validity is ultimately rooted. The challenge for Habermass notion of context-transcendence is to explain how validity claims are both raised from with a particular context and simultaneously overshoot that context and the local standards that govern it (BFN 15). In other words, the challenge is to envision transcendence as an innerworldly phenomenon without thereby deflating it entirely.14 Habermas puts it this way: The idea of the redeemability of criticizable validity claims requires idealizations that, as adopted by the communicating actors themselves, are thereby brought down from the transcendental heaven to the earth of the lifeworld. The theory of communicative action detranscendentalizes the noumenal realm only to have the idealizing force of context-transcending anticipations settle in the unavoidable pragmatic presuppositions of speech acts, and hence in the heart of ordinary, everyday communicative practice. Even the most fleeting of speech-act offers, the most conventional yes/no responses, rely on potential reasons (BFN 19). Validity claims are raised in specific contexts, but the validity (Gltigkeit) that is claimed for them conceptually transcends space and time; such validity is thus distinct from the mere de

8 facto validity or social acceptance (soziale Geltung) of a norm, a validity that is based merely on settled custom or the threat of sanctions (BFN, 20).15 Validity claims are, Habermas is fond of saying, Janus-faced: as claims, they overshoot every context; at the same time, they must be both raised and accepted here and now if they are to support an agreement effective for coordination for this there is no null context (BFN, 21). The tension between facticity and validity in everyday communication is, for Habermas, unavoidable and ineliminable, but it is also explosive (BFN 21). The ongoing process of submitting validity claims to discursive, critical examination means that there is an unavoidable risk of disagreement and dissension built into processes of communication (BFN 21). Moreover, from the point of view of action coordination, disagreement and dissension are quite costly inasmuch as they threaten to undermine social integration (BFN 21). Hence in order for social order to be possible, societies need to find ways of stabilizing the tension between facticity and validity inherent in linguistic communication. Habermas delineates three strategies for stabilizing this tension. The first strategy stabilizes the tension by leveling it out entirely or fusing facticity with validity. This strategy comes in two variations. The first appeals to a shared, cohesive lifeworld that acts as the sprawling, deeply set, and unshakable rock of background assumptions, loyalties, and skills against which critique crashes in vain (BFN 22), the second to an archaic and authoritarian institution that imperiously confronts us and arouses ambivalent feelings (BFN 24). Such institutions must achieve their stability below that threshold at which the coercive force of sanctions irreversibly splits off from the forceless force of plausible reasons (ibid). Hence, the validity that they secure is mere de facto validity (Geltung), a validity that retains the force of the factual (BFN 25).

9 This first stabilization strategy goes wrong, in Habermass view, by fusing together two moments that we now cannot help but consider incompatible legitimate validity, on the one hand, and the facticity of either a thick, unquestioned, shared tradition or awesome, overpowering, uncriticizable authority, on the other. However, the second type of stabilization strategy that Habermas considers, which involves giving communicative action unfettered free play, goes too far in the other direction, shifting the entire burden of social integration in modern, complex, internally differentiated societies onto communicative interaction itself. Habermas maintains that under the modern conditions of complex societies, which require self-interested and hence normatively neutralized action in broad spheres, the paradoxical situation arises in which unfettered communicative action can neither unload nor seriously bear the burden of social integration falling to it (BFN 37). Hence this turns out to be a lousy stabilization strategy since unfettered communicative action in a post-traditional context is inherently de-stabilizing. In contrast to these two strategies, Habermas interprets his third and preferred alternative, stabilization through positive law,16 as one that not only recognizes the incompatibility of genuine validity and unquestioned tradition or authority but is also better suited for large, complex, internally differentiated modern societies. Habermas interprets positive law as retaining some aspects of each of the first two stabilization strategies but incorporating them into an institutional form that also allows for each to have its own proper sphere of influence. In modern, positive law, the coercive power of the state to enforce the law offers a functional equivalent for the stabilization of behavioral expectations by spellbinding authority (BFN 37), while the free play of communication in the public sphere and in deliberative political institutions exposes all values and norms to critical testing, thus conferring legitimacy on the results of political opinion and will formation (ibid). Viewing facticity and validity as

10 intertwined but not fused, Habermas maintains that in modern law the facticity of the enforcement of law is intertwined with the legitimacy of a genesis of law that claims to be rational because it guarantees liberty (BFN 28). The key to understanding both the legitimacy and the positivity of modern law thus lies in understanding it as a mechanism that preserves unfettered communication while relieving already overburdened individuals from the onerous tasks of social integration (BFN 38). Through positive law, then, the tension between facticity and validity is behaviorally operationalized (BFN 28). The key to this institutional realization of the tension between facticity and validity is the way in which the constitutional state confines the coercive power of the state and the free play of communication to their own proper spheres of influence. These spheres of influence the administration, on the one hand, and the formal deliberative institutions plus the informal public sphere, on the other hand correspond to the distinction between administrative and communicative power, to which we now turn.

The Conceptual Structure of Habermass Account of Power The core of Habermass account of political power is his distinction between communicative and administrative power, with positive law functioning as the mediator and translator between the two. Habermas emphasizes that his primary concern at the reconstructive stage of his argument is with the internal tension between law and political power. Habermas characterizes this tension as follows: political power is not externally juxtaposed to law but is rather presupposed by law and itself established in the form of law (BFN 134). Habermas distinguishes this tension within the law from the external tension between legal norms and the real social contexts and political processes in which those norms must be discussed, legitimated

11 and applied. The external tension, then, is the tension between the legal norm and the messy social and political reality of actually existing constitutional democracies, a reality structured by asymmetrical social power relations. Habermas claims that this external tension between norm and reality is not relevant to the task of rationally reconstructing and thus conceptually legitimating the structure of the democratic constitutional state. Although he does discuss this external tension in Between Facts and Norms, he does so much later in the book, in the context of his discussion of empirical analyses of the dangers that inequalities in social power can pose for constitutional democracies. So it turns out that there are actually two kinds of tension between facticity and validity possible, an internal tension that Habermas analyzes through a normative rational reconstruction, and an external tension that he sets aside and seems to view as irrelevant for the purposes of his reconstructive project. Arguing from the internal, reconstructive perspective of a participant in modern legal orders, then, Habermas calls for a differentiation in the concept of political power. If the sources of justice from which the law itself draws legitimacy are not to run dry, he writes, then a jurisgenerative communicative power must underlie the administrative power of the government (BFN 147). Inspired by Hannah Arendts work, Habermas uses the term communicative power to refer to the political power that emerges only in undeformed public spheres and issues only from structures of undamaged intersubjectivity found in nondistorted communication (BFN 148). Habermas distinguishes this from administrative power, which refers to the instrumentally rational process of exercising power on the part of the state (BFN 149). The two are connected through but also separated from one another by law, which translates the communicative power that emerges in the public sphere and in the deliberative

12 bodies of the parliament or legislature into the administrative power exercised by the state (BFN 150). Muddying the waters of conceptual framework in ways that we will return to in a moment, Habermas also introduces the notion of social power which refers to the external rather than the internal tension between facticity and validity in the context of his reconstructive argument. In a Weberian vein, he defines social power as a measure for the possibilities an actor has in social relationships to assert his own will and interests, even against the opposition of others (BFN 175). Habermas maintains that his tripartite distinction between communicative, administrative, and social power allows us to interpret the idea of the constitutional state in general as the requirement that the administrative system, which is steered through the power code, be tied to the lawmaking communicative power and kept free of illegitimate interventions of social power (i.e., of the factual strength of privileged interests to assert themselves) (BFN 150). This interpretation generates two further requirements for the proper exercise of administrative power. First, it must not be allowed to reproduce itself without drawing on the normative resources provided by communicative power (BFN 150). Second, since administrative power is instrumentally rational, the administration must not concern itself with normative reasons or justifications. Rather, it must limit itself to drawing on the pool of normative reasons that are generated by communicative power and using these to rationalize its decisions (BFN 484).17 Indeed, Habermas maintains that the legal rationalization of the coercive power of the state through the conversion of communicative to administrative power is one of the principal tasks of the constitutional state. However, Habermas maintains that the legal rationalization of force must not be conceived as taming a quasi-natural domination whose violent core is and

13 always remains uncontrollably contingent. Rather, law is supposed to dissolve this irrational substance, converting it into a rule of law in which alone the politically autonomous selforganization of the legal community expresses itself (BFN 188-189). How is law able to perform this amazing feat of alchemy, dissolving the irrational, violent substance of coercive political power into the transparent liquid of rationality? The answer has to do with the close connection between political authority and political autonomy in democratic, constitutional states. The organization of such states ultimately serves the politically autonomous selforganization of a community that has constituted itself with the system of rights as an association of free and equal consociates under law (BFN 176). The modern constitutional state unifies practical reason and sovereign will through the principle of popular sovereignty, according to which all political power derives from the communicative power of citizens (BFN 170). Because they emerge out of communicatively structured processes of opinion- and willformation (in informal public spheres and deliberative institutions such as a parliament or legislature, respectively), legal norms can be understood as unifying the power of an intersubjectively formed will and the reason inherent in the legitimating procedure (BFN 189). Not only is Habermas concerned that administrative power might regenerate itself on its own terms, without drawing on the normative resources of communicative power that alone can render it legitimate, he is also concerned that social power might be converted directly into administrative power. This concern leads Habermas to endorse the principle of the separation of state and society, which is designed to ensure that social power cannot reach administrative power without first passing through the sluices of communicative power formation (BFN 169170). The relationship between social power and political autonomy isnt entirely negative, though, for social power can either facilitate or restrict the exercise of political autonomy.

14 Habermas maintains that social power facilitates political autonomy by providing the necessary material conditions for its exercise, and it restricts political autonomy by providing some social actors greater influence than others over the processes of opinion- and will-formation and over the actions of the administration. This seems to boil down to the rather obvious point that social power facilitates political autonomy to the extent that everyone is equally able to exercise such power, and it restricts it to the extent that there are pervasive, structural inequalities in the abilities of individuals to exercise social power. In other words, structures of domination and subordination inhibit the political autonomy of those who are subordinated and enhance the political autonomy of those who occupy positions of dominance. Hence, it is the job of civil society to absorb and neutralize inequalities and asymmetries of social power, such that social power comes into play only insofar as it facilitates the exercise of civic autonomy and does not restrict it (BFN 175). Habermas does not address the ways in which civil society can accomplish this difficult task in the context of his rational reconstruction of the basic principles and institutions of the democratic constitutional state, since this task concerns the external tension between legal validity and a social facticity plagued by widespread and deeply rooted asymmetries of power. He does return to this problem later in the book, in the context of his more empirically focused discussion of the dangers posed to the constitutional state by inequities in social power. There, he draws on the work of the German sociologist of law, Bernhard Peters, to argue that the illegitimate independence of social and administrative power vis--vis democratically generated communicative power can be ameliorated by weak public spheres that have specific capacities including the capacity to ferret out, identify, and effectively thematize latent problems of social integration and the opportunity to exercise them (BFN 358).18 But the assumption that these

15 weak peripheral public spheres as distinct from the strong central public spheres that are the deliberative institutions of the state (i.e. parliament or the legislature) have such critical capacities is problematic inasmuch as it places a good part of the normative expectations connected with deliberative politics on the peripheral networks of opinion-formation (BFN 358). This raises the difficult question of whether the opinions formed in weak public spheres are the result of practices of reason-giving and assessing or of the pernicious influence of unequal social power. Habermas admits that despite the wealth of empirical investigations, we still do not have a well-established answer to this cardinal question. But he continues, one can at least pose the question more precisely by assuming that public processes of communication can take place with less distortion the more they are left to the internal dynamic of a civil society that emerges from the lifeworld (BFN 375). I have read that last sentence many times, and I confess I still do not understand what it means. At best it seems tautological: communicative practices are less distorted the more they emerge from the undeformed public spheres that are structured by undamaged intersubjectivity (BFN 148) and hence are not distorted by the pernicious influence of asymmetrical social power. How this is supposed to help us settle the empirical question of whether opinion formation in weak public spheres is governed by communicative reason or social power is mysterious. It seems to me that Habermas ends up in this awkward spot in large part because of his ultimately quixotic attempt to keep separate the internal and external tensions between facticity and validity. To the extent that he succeeds in separating these two tensions, it becomes unclear how Habermass proposed resolution of the former through the institutionalization of modern, positive law is supposed to help us at all with resolving the latter. But, even more fundamentally, it seems worth worrying about whether or not Habermas can possibly succeed in

16 maintaining a clear distinction between the internal tension (the coercive power of the state vs. valid law) and the external tension (a social facticity structured by asymmetrical power relations and the normative validity claimed for his theoretical project). These two tensions map on to two basic distinctions in Habermass conception of power. Related to the internal tension is the distinction between communicative and administrative power, which are connected but also kept separate by the mechanism of law; related to the external tension is the distinction between communicative and social power, which are kept separate but ultimately related by the methodological distinction between the quasi-transcendental project of rational reconstruction and the empirical analysis of power. In both cases, communicative power is counterposed to a kind of strategic power (both administrative and social power are defined in instrumental and strategic terms). And in both cases, the distinctions are designed to insulate communicative reason and power from the pernicious influence of strategic power: conceptually, in the case of the internal tension, and methodologically, in the case of the external tension. At the intersection of these two sets of distinctions is social power, a hybrid normativeempirical concept that enjoys an ultimately problematic status in Habermass argument. Like administrative power, social power is understood in strategic, instrumental terms. But unlike administrative power, social power does not seem to belong to the discussion of the internal tension between the facticity of coercive state power and the validity of legitimate law. And yet Habermas introduces social power during the reconstructive stage of his argument and claims that equal social power (or at least a lack of systematic subordination) facilitates the achievement of political autonomy by providing the material conditions necessary for its exercise. This suggests that social power is relevant not only to the external tension between norm and reality but also, in a deep and consequential sense, to the internal tension, since democratically enacted

17 law cannot be presumed to be valid unless it is enacted under conditions of equal social power. Thus, the problem with social power is not just, as Bill Scheuerman argues, that Habermas lacks a robust enough account of it, although this is undoubtedly true.19 Habermass account of social power is insufficiently complex to bear all the weight that Habermas puts on it, for reasons we will explore in the next section. In addition, social power has a fundamentally ambiguous status in Habermass argument, an ambiguity that troubles the arguments basic conceptual structure. The structure of Habermass argument reflects a conceptual demand for purity. This can be seen in his operationalization of the internal tension between facticity (understood as the coercive enforcement of law) and validity (understood as the democratic genesis of law). In that case, positive law connects communicative and strategic power but also keeps them separate from one another. This demand for purity is also reflected in the attempt to keep the internal and external tensions between facticity and validity separate, and is enacted at the methodological level in Habermass distinction between the normative, conceptual project of rational reconstruction and the empirical analysis of social power. Habermas demands purity because he thinks that it is only by keeping communicative action, reason, and power purified of the effects of strategic action, rationality and power that he can distinguish genuine from merely conventional or de facto legitimacy. In other words, the assumption of purity is the only thing that enables him to break out of contextualist circle. But the ambiguous status of the notion of social power in Habermass theory suggests that such purity is unattainable even at the conceptual level. And the more we complicate Habermass overly simplistic notion of social power, the less attainable it will come to seem.

18 Social Power and Subjection Recall that Habermas defines social power as a measure for the possibilities an actor has in social relationships to assert his own will and interests, even against the opposition of others (BFN 175). As a definition of social power, this one has a rather obvious, but important, lacuna. It assumes that the will and interests asserted by social actors are genuine, that is, that they are not themselves a function of pervasive asymmetries of social power. However, given the pervasiveness, depth, and systematicity of asymmetrical social power relations along lines of class, gender, race, and sexuality, for example and given the ways in which such power relations are constitutive of the identities of their targets, this assumption seems problematic. The assumption is connected to Habermass reconceptualization of practical reason in communicative terms, for it is his faith in the power of practical reason and individual autonomy that leaves him unconcerned about what I will call, following Foucault, the problem of subjection.20 A central aim of Habermass project as a whole is to translate the Kantian conception of practical reason into communicative terms. As Habermas sees it, this move has the advantage of allowing him to defend a proceduralized version of reason from charges of essentialism while escaping the dead ends of contextualism and the post-Nietzschean denial of reason. In his view, communicative rationality is not a capacity of the individual subject but instead is expressed in a decentered complex of pervasive, transcendentally enabling structural conditions of communication (BFN 4). The normative force of communicative action is thus the force of a weak transcendental necessity whereby a set of unavoidable idealizations forms the counterfactual basis of an actual process of reaching understanding, a practice that can critically turn against its own results and thus transcend itself (ibid). Although communicative rationality

19 inheres in the practice of communication rather than in the individual subject, as a practice, it is still dependent on the formation of communicatively competent, autonomous subjects who are capable of engaging in the ongoing exchange and critically reflexive evaluation of reasons. As Habermas points out repeatedly, his normatively demanding models of morality and politics depend upon a rationalized lifeworld that meets them halfway by promoting the requisite forms of cultural and political socialization. For individuals who have been so socialized, reasons owe their rationally motivating force to an internal relationship between the meaning and the validity of linguistic utterances. This makes them double-edged from the word go, because they can both reinforce and upset beliefs (BFN 35). But is it not the case that all beliefs must be assessed in light of some standards of rationality that we take to be given for the purposes of that assessment? In that case, would there not be some bedrock beliefs or assumptions that cannot be upset by reason? In a concession to contextualists such as Rorty, Habermas acknowledges that reasons count only against the background of context-dependent standards of rationality, but, he insists, reasons that express the results of context-altering learning processes can also undermine established standards of rationality (BFN 36). The difficulty for Habermas is this: even if the rationally motivating power of what we take to be good reasons is derived from internalized standards of rationality, those internalized standards are themselves not internalized for good reasons. Indeed, they are not internalized for any reasons whatsoever because the creature that internalizes them is not yet reasonable, but only becomes so by virtue of internalizing those very standards. Moreover, as Habermas himself admits in the context of his social theory, the only way to get unruly toddlers to internalize those standards of rationality is through the mechanisms of punishment, guilt and shame, that is, through a healthy dose of repression and

20 authoritarianism.21 This suggests that not all of the irrational substance of coercive power can be dissolved in the acid of communicative rationality. To some extend, Habermas acknowledges this point in his account of the socially stabilizing and integrating functions of modern, positive law, though he is overly sanguine about its implications. Methodologically, Habermas argues that legal orders can be analyzed both from above (that is, from the point of view of an idealized philosophy of justice that views law solely in normative terms) and from below (that is, from the point of view of a cynical sociology of law that views law as a mechanism for social control) and that a reconstructive sociology of law must do justice to both perspectives (BFN 69). In his attempt to view law from above and below at the same time, Habermas builds on the work of Durkheim and Weber. From Durkheim, he takes the idea of the socially integrative force of the internalization of moral norms. By translating Kants principle of autonomy into sociological terms, Durkheim sought to explain how actors who are free in their decisions bind themselves to norms at all, that is, let themselves be obligated by norms to realize the corresponding values. However gentle it may be, the force of normative claims will be experienced by actors as externally imposed coercion, unless they make it their own as moral force, that is, unless they convert this force into their own motivations (BFN 67). This conversion from the coercive force of an external moral authority to the internal motivational force of self-controlled moral insight occurs via the internalization of the values incorporated in the communitys norms. Habermas concedes that this internalization process is usually not repression-free; but it does result in an authority of conscience that goes hand in hand

21 with a consciousness of autonomy (ibid). In the context of his social theory, Habermas does hedge the point as he does here; he admits that repression is necessary for this process, but insists that the process cant be the result of repression alone. Following Weber, however, Habermas argues that modern, complex social orders can not be based solely on this intrapsychic mechanism of internalized norms (BFN 68). Indeed, the principal reason we need positive law in postconventional, highly complex, internally differentiated modern societies is that the intrapsychic mechanisms of guilt and shame are no longer sufficient for securing compliance to norms. As Habermas puts it, A morality that depends on the accommodating substrate of propitious personality structures would have a limited effectiveness if it could not engage the actors motives in another way besides internalization, that is, precisely by way of an institutionalized legal system that supplements postconventional morality in a manner effective for action (BFN 114). Law thus unburdens the modern, postconventional moral actor in three senses. From a cognitive perspective, law complements morality by relieving the individual of the cognitive burdens of forming her own moral judgments (BFN 115); from a motivational perspective, it supplements motivational indeterminacy by providing a strong incentive for norm-conformative behavior (BFN 116); and from an organizational perspective, it takes the place of traditional legitimating institutions (such as thick ethical traditions, archaic institutions, or shared religious beliefs). In other words, the social integration that Habermas views as necessary for stability depends upon a double repression. First, there is the repression that leads to internalization of moral norms, the internalization of the superior power and authority of parent, who stands in for and transmits the demands of the community or society. According to the terms of Habermass own account of individuation through socialization, this process takes place prior to child being

22 able to critically assess whether that authority is legitimate, indeed, as a precondition for its having the capacity to make that critical assessment. Second, there is the repression of coercive positive law, which relieves subjects who have not sufficiently internalized the power and authority of the parent of the burden of having to decide for themselves what is the right thing to do. A surprising amount of force thus lies behind and undergirds the unforced force of the better moral and legal argument. As Nietzsche put it, ah, reason, seriousness, mastery over the affects, the whole somber thing called reflection, all these prerogatives and showpieces of man: how dearly they have been bought! how much blood and cruelty lie at the bottom of all good things.22 In light of this double repression, it is interesting how much methodological weight Habermas puts on the rational reconstruction of the normative demands of our modern law and democracy from the internal, participant point of view. Habermas maintains that from that point of view, participants cannot consider either morality or the law as merely a system of coercion; rather, such a cynical view of can only be offered from a disinterested, third person, observer point of view. But Habermas does not seem to appreciate fully even as his own argument presupposes the ways in which our internal participant perspectives are themselves shaped by the deeply asymmetrical relations of social power that structure the lifeworlds into which we are socialized. To what extent is our own internal participant perspective, and thus the project of rational reconstruction itself, distorted by these relations of power? Recall Horkheimers observation that the difference between critical and traditional theory is a difference not so much of objects as of subjects. Given that difference, shouldnt critical theory remain committed to trying to answer this question (even if we admit that it can never be answered once and for all)?

23 By shunting the discussion of power off to the third person, observer perspective, Habermas not only fails to offer an answer to this question, he makes it difficult even to pose the question. Of course, Habermass could respond to this line of criticism by claiming that autonomy gives us the ability to reflect critically on the very processes of subjection and repression that have made us who we are. As Habermas puts it in the context of his recent reflections on human nature, [adolescents] can retrospectively compensate for the asymmetry of filial dependency by liberating themselves through a critical reappraisal of the genesis of such restrictive socialization processes.23 So even if individual subjection is necessary for the achievement of individual autonomy, just as political subjection (to the coercive force of law) is necessary for the achievement of political autonomy (the production of valid law through democratic means), insofar as this doubly repressive process yields autonomy in the end, whats the problem? The problem is, I think, that Habermass faith in autonomy is overblown, especially given the role that he admits that power and repression necessarily play in the formation of the autonomous subject. We have to internalize the standards of rationality that hold sway in our culture standards that may well be connected to broad and deep asymmetries of power as a precondition for being in a position to submit those standards to rational, critical assessment. This doesnt mean that such assessment is impossible, nor does it mean that we should deny reason altogether (whatever that might mean). But it does mean that we must be exceedingly mindful of the ways in which, as Judith Butler has put it, power pervades the very conceptual apparatus that seeks to negotiate its terms, including the subject position of the critic.24 At best, Habermas seems uninterested in the process of subjection, hence his insistence that the process of individuation through socialization takes place only in the medium of action oriented toward reaching understanding [i.e., of communicative action].25 At worst, he is highly skeptical of

24 the very idea of subjection, hence his claim that Foucaults account of subjection can only lead to an image of the individual as a mechanically punched out copy.26 And even when acknowledges that power does play a role in the formation of the subject, by acknowledging that the internalization of the authority of the parent is necessary for the formation of individual autonomy and that the coercive force of law is necessary for achieving social integration in postconventional societies, he remains overly sanguine about the implications of this. This is the point at which Habermas forecloses the tension between reason and power, coming down ultimately on the side of reason, and downplaying accordingly the role that power plays in the formation of the practically rational, communicative subject. This foreclosure is motivated by the same demand for purity that informs the basic structure of argument in Between Facts and Norms. Habermas needs to keep the autonomous subject separate from the genetic power-laden processes that form her, the communicative power that emerges out of rational process of debate and deliberation separate from the strategic power utilized by the administration, and the methodology of the rational reconstruction of normative frameworks separate from the empirical investigation of social power relations, in order to maintain the strong universalism of his moral and political project. But it is precisely the concept of social power, especially when filled in with the notion of subjection, that collapses under the weight of this structural edifice, and takes us back to the ambivalent relationship between reason and power with which we began.

Conclusion In conclusion, let me first recapitulate my argument. Although Between Facts and Norms attempts to address the tension between reason and power in human social and political

25 life, Habermas lowers the bar for himself somewhat by referring to the coercive power of law in terms of facticity rather than violence or force. The basic structure of Habermass argument turns around two separations the conceptual separation of communicative from administrative power and the methodological separation of normative rational reconstruction from empirical analysis both of which evince a demand for conceptual and methodological purity. But the hybrid concept of social power, by the confines of this conceptual and methodological structure, reveals this to be an impossible demand. In the end, Habermass account of social power is too simplistic to bear all the weight that he puts on it, but the attempt to complicate it further with the notion of subjection makes Habermass demand for purity seems even less attainable. In the preface to Between Facts and Norms, Habermas notes that the stakes of his inquiry are quite high. After a century that, more than any other, has taught us the horror of existing unreason, he writes, the last remains of an essentialist trust in reason have been destroyed. Yet modernity, now aware of its contingencies, depends all the more on a procedural reason, that is, on a reason that puts itself on trial (BFN xli). The stark inhumanity of the catastrophes of the 20th century may have shaken our faith in the power of reason, but they have produced no viable substitute. Hence, Habermas presents his proceduralist version of a reason that interrogates and cross-examines itself as the only palatable alternative to the brash denial of reason altogether (BFN, 3). I do not wish to deny reason, brashly or otherwise, nor do I think that the desire to highlight without foreclosing the tension between reason and power commits me to such a denial. But I do think that Habermas could successfully respond to the line criticism that I have pursued in this paper by another option that he considers but rejects, namely, by endorsing a more contextualist version of his project.

26 Habermas explains that although contextualism is an understandable response to the failures of the philosophy of history and philosophical anthropology, it never gets beyond the defiant appeal to the normative force of the factual (BFN, 2). Thus, in his view, it doesnt do justice to the tension between facticity and validity, since it ultimately collapses this tension in the direction of the mundane facticity of our social practices and beliefs. Although this may be true of the most nave forms of relativism, it isnt obviously true of more principled forms of contextualism that continue to appeal to the context-transcending (rather than the contexttranscendent) force of claims to validity. Such forms of contextualism hold on to the claim to context-transcending validity as an ideal that emerges out of and remains bound to the context of late Western modernity. As Thomas McCarthy puts this point: Our culture is permeated with transcultural notions of validity. If, in the absence of any Gods eye view, we have to start from where we are for instance, to use the forms of justification actually available to us this will involve, in many pursuits at least, offering arguments that claim validity beyond the confines of our culture.27 The guiding insight of this contextualized version of Habermasian critical theory is this: Many of the objectionable features of the classical critique of reason can be overcome by deabsolutizing ideas of reason through stressing their relations to social practice and building deconstructive concerns into reconstructive endeavors from the start.28 Such an approach stands a much better chance of keeping open and doing justice to the essential tension between reason and power by enabling us both to posit context-transcending ideals and to unmask their rootedness in contexts structured by social power.
1

Max Horkheimer, Traditional and Critical Theory, in Horkheimer, Critical Theory: Selected Essays (New York: Continuum, 1972), 207. 2 Ibid., 208. 3 Ibid. 4 Ibid., 209.

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5 6

Ibid., 210. Fraser, Identity, Exclusion, and Critique: A Response to Four Critics, European Journal of Political Theory 6(3): 305-338, p. 322. 7 Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: MIT Press, 1996). Henceforth cited parenthetically in the text as BFN. 8 Joel Whitebook, Perversion and Utopia: A Study in Psychoanalysis and Critical Theory (Cambridge: MIT Press, 1995). 9 For these alternative formulations, see Walter Benjamin, Critique of Violence, translated Edmund Jephcott, in Benjamin, Selected Writings, vol. 1, 1913-1926, ed. Marcus Bullock and Michael W. Jennings (Cambridge: Harvard University Press, 1996), and Jacques Derrida, Force of Law: The Mystical Foundation of Authority, trans. Mary Quaintance, Cardozo Law Review 1989/90: 921-1045. 10 See, for example, Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005), and Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998). 11 Habermas, The Philosophical Discourse of Modernity: Twelve Lectures, trans. Frederick G. Lawrence (Cambridge: MIT Press, 1987). 12 I discuss this issue in more detail in Allen, The Politics of Our Selves: Power, Autonomy and Gender in Contemporary Critical Theory (New York: Columbia University Press, 2008), ch. 6. 13 Habermas, Philosophical Discourse of Modernity, pp. 323-324. 14 See Habermas, Transcendence from Within, Transcendence in this World, in Habermas, Religion and Rationality: Essays on Reason, God, and Modernity, ed. Eduardo Mendieta (Cambridge: Polity Press, 2002), p. 91. For an excellent discussion of the difficulties inherent in Habermass notion of context-transcendence, see Maeve Cooke, Re-presenting the Good Society (Cambridge: MIT Press, 2006). I discuss this issue in more detail in chapter 6 of The Politics of Our Selves. 15 In connection with this distinction, it is worth noting that the German title of Habermass book Faktizitt und Geltung is at the very least misleading (perhaps even unintentionally selfundermining?). Given the central role played by the tension between ideal normative validity and real empirical facticity in the book, the title should be Faktizitt und Gltigkeit. 16 Habermass emphasis on stability is interesting, and indicative of the fundamentally conservative (in the classical political theory sense of that term) nature of this work. This might explain why so many critical theorists were so disappointed by this book. For an example of a critique along these lines, see William Scheuerman, Between Radicalism and Resignation: Democratic Theory in Habermass Between Facts and Norms, in Peter Dews (ed), Habermas: A Critical Reader (London: Blackwell, 1999). 17 But, as Habermas explains later, on this view, rationalization signifies more than mere legitimation but less than the constitution of political power (Habermas, Three Normative Models of Democracy, in Habermas, The Inclusion of the Other: Studies in Political Theory, ed. Ciaran Cronin and Pablo de Greiff (Cambridge: MIT Press, 1998), p. 250). 18 For critical discussion of Habermass use of Peters work, see Scheuerman, Between Radicalism and Resignation. 19 Ibid. It is also unclear whether the Weberian definition of social power that Habermas offers is suitable for developing such an account. I come back to this issue in the next section.

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20

For Foucault, subjection refers to the double-edged process whereby an individual becomes a subject endowed with the capacity to think and act only by being subjected to power relations. See Foucault, Afterword: The Subject and Power, in Hubert Dreyfus and Paul Rabinow, 2nd edition (Chicago: University of Chicago Press, 1983). See also Judith Butler, The Psychic Life of Power: Theories in Subjection (Stanford, CA: Stanford University Press, 1997), and Allen, The Politics of Our Selves, chs 3 and 4. 21 I discuss the relationship between autonomy and subjection in Habermass social theory in Allen, The Politics of Our Selves, chs 5 and 6. 22 Friedrich Nietzsche, On the Genealogy of Morals, trans. Walter Kaufmann and RJ Hollingdale (New York: Vintage, 1989), p. 62. 23 Habermas, The Future of Human Nature (Cambridge: Polity Press, 2003), p. 62. 24 Judith Butler, Contingent Foundations: Feminism and the Question of Postmodernism in Seyla Benhabib, Judith Butler, Drucilla Cornell, and Nancy Fraser, Feminist Contentions: A Philosophical Exchange (New York: Routledge, 1995), p. 39. 25 See Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge: MIT Press, 1990), p. 102. 26 See Habermas, The Philosophical Discourse of Modernity, p. 293. 27 David Hoy and Thomas McCarthy, Critical Theory (London: Blackwell, 1994), p. 40. For a similar view, see Cooke, Re-Presenting the Good Society. 28 Ibid, p. 14.