Structure or Sentiment? Habermas, Hegel, and the Conditions of Solidarity

Abstract

Jurgen Habermas prefaces his recently published philosophy of law, Faktizitat und Geltung,' by announcing that he will make virtually no reference to Hegel. This acknowledgement is curious, for while Habermas in fact makes scarcely any reference to Hegel, his projects reaffirms many components of Hegel's approach to legal and political theory. Like Hegel, Habermas seeks to fashion a philosophy of right, or law, that surmounts the oppositions of empirical and normative considerations-of reason and reality, philosophical right and positive law, facticity and validity. Like Hegel, he presents right as a principle that cuts across spheres of economicadministrative and political-communicative forms of rationality. Like Hegel, he regards law as a principle-indeed the distinctly modern principle-of societal cohesion and institutionalized public rationality. Like Hegel, Habermas advances an account of solidarity that not only does not ignore modern complexity but builds upon it. And like Hegel, he fashions a concept of law that seeks to surmount many of the dichotomies that traditionally have plagued legal and political theory: e.g., private liberty and public autonomy, liberal constitutionalism and civic selforganization, liberalism and communitarianism, formal governmental institutions and informal sphere of political will-formation, representative and popular notions of political participation. For his part, Habermas adduces several reasons for not according Hegel greater attention.2 Most important is his contention that Hegel's Philosophy of Right, like the practical philosophy of his predecessors, rests on the assumptions of a philosophy of consciousness or philosophy of the subject, assumptions that do justice neither to the requirements of a comprehensive theory of law nor the realities of modern social life.3 Commitment to a philosophy of the subject cedes primacy either to the individual legal subject or a state-social macro-subject, a state of affairs which eliminates the possibility of reconciling public and private autonomy, the liberty of the ancients and the liberty of the modems. Similarly, a philosophy of the subject entails commitment to a view of public life centered in political-state organization, a state of affairs that cannot accommodate a notion of sovereignty that doesjustice to the diverse forms of social integration characteristic of a differentiated social world. Finally, a philosophy of the subject lays special emphasis on the virtuous sentiment of citizens in accounting for solidarity and social cohesion, a state of affairs that likewise ill accords with the realities of modern life. Thus to accommodate the requirements of a normative legal philosophy under contemporary conditions, Habermas turns to a discoursetheoretic approach to law, one that scrutinizes the phenomenon of law, not from the standpoint of the individual or communal subject, but in terms of the underlying rules and procedures governing communication and public deliberation. This "retreat into the discursive structure of public communication"4 is significant because it furnishes a framework that can accommodate an internal relationship of public and private autonomy. Moreover, it allows for a decentered concept of sovereignty, one that does not require identifying the public will with a collective social subject.5 And by adverting to the integrating power of the "subjectless," "anonymous," or "impersonal" structures that govern the process of deliberation, Habermas' theory accommodates a conception of solidarity and social cohesion that does not overtax the capacity of citizens for public engagement.b All these exemplify Habermas' break with the philosophy of consciousness, a break that has rendered unnecessary elaborate consideration of a theory like Hegel's which, whatever its merits, remains hopelessly ensnared by the philosophy of subjectivity. In what follows I question Habermas' reception (or lack thereof) of Hegel's philosophy of law. …