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Law Critique (2012) 23:123139

DOI 10.1007/s10978-012-9099-4

Habermas Contra Foucault: Law, Power


and the Forgotten Subject
Jacopo Martire

Published online: 4 April 2012


 Springer Science+Business Media B.V. 2012

Abstract The purpose of the present paper is to offer a Foucauldian critique of


Habermass theory of law and democracy. Quite famously Habermas viciously
attacked Foucaults positions on law and power in modernity. Those attacks will be
taken into consideration here in order to show some deficiencies in Habermass own
reading of modern law and democracy. My suggestion is that the formal nature of
Habermass communicative approach fails to take into adequate consideration the
question of subjectivity formation. More precisely I will demonstrate that Habermass own works show a troublesome ambivalence with regards to the possibility
that individuals can participate as unencumbered selves to the public life of their
community. As a consequence his account turns a blind eye to certain dynamics of
power in our society that a Foucauldian approach seems more apt to frame and
explore.
Keywords Democracy  European crisis  Foucault  Habermas  Identity 
Law  Power  Subjectivity

Habermass Interpretation of Law: A Foucauldian Critique


The FoucaultHabermas debate represented a heated intellectual confrontation
between two of the most important thinkers of our times and their respective
followers (Ashenden and Owen 1999; Kelly 1994). It invested questions as diverse
as power, epistemology, democracy, and subjectivity, pitting against each other two
distinctively philosophical approaches.
Foucaults death, among other things, prevented the full development of the
dispute, but its theoretical implications extend their reach to our very present day
J. Martire (&)
School of Law, Kings College London, Strand, London WC2R 2LS, UK
e-mail: jacopo.martire@kcl.ac.uk

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and some pressing contemporary issues. With regards to the current status of turmoil
that Europe is experiencing as a consequence of the global financial crisis, for
example, Habermas has boldly restated the case for his approach to law, legitimacy
and democracy. The substitution first of the Greek and then of the Italian
democratically elected governments in favour of technocratic ones that could
better meet the stringent austerity demands of the so-called Troika represented by
the European Union, International Monetary Fund and European Central Bank is
just the clearest evidence of the extent to which the logic of the market has
colonised the political dimension.1 The European ideological bastions of democratic
sovereignty and legitimacy are dangerously vacillating in front of the economic
imperative, exposing the weaknesses and inconsistencies of the EU political project.
Against the background of such a disheartening predicament, Habermas, in a
recent book (Zur Verfassung Europas to be published in English with the title The
crisis of the European UnionHabermas 2012) and in several public appearances,
has vehemently attacked the increasing European institutions democratic deficit.
To overcome the current crisis, the German philosopher urges a new investment in
the democratic process, relying on his communicative paradigm as a way forward
and professing optimismalbeit with some shadows of doubtfor the political
future of Europe. Such unrelenting faith in the force of democracy is certainly
refreshing, but is it sufficiently justified? Is not the trust in the apparently failing
democratic principles an idealistic call, detached from the dire circumstances of our
present condition and the overall liberal declination of those principles? To what
extent do Habermass thoughts on legitimacy, communication and human
interaction provide us with an accurate description of our society and suggest a
feasible path of progress?
My intention, here, is not to discuss Habermass recent proposals on how to
survive the current European crisis (which, in comparison to techno-financial
solutions, easily appear as a better political alternative). Rather the purpose of the
present article is to go back to the FoucaultHabermas debate as a valuable means to
unearth some deep-seated critical points in Habermass theory which, as the current
European political crisis shows, are now more theoretically important than ever.
One point of friction between Foucault and Habermas, in particular, seems useful
for this purpose, and it is represented by their distinctive understanding of modern
law and democracy. While Habermas depicted contemporary constitutional
democracies and their systems of rights as an historical step in the direction of
personal freedom and autonomy, Foucault had a more sceptical take on the legal and
democratic landscape. Although he never quite developed a comprehensive
interpretation of law and democracy his works expressed some heavy criticism
with regards to the liberating nature of our times. Quite famously, he argued,
modern society is marked by distinctive disciplinary and governmental dynamics,
which have made powers penetration into everyday life much more pervasive than
in any preceding era. As a consequence, and differently from traditional liberal
1

Lucas Papademos sworn in as Greeces prime minister, 11.11.2011, available at http://www.


guardian.co.uk/world/2011/nov/11/lucas-papademos-greece-prime-minister; Italy races to install Monti
government, 13.11.2011, available at http://www.ft.com/cms/s/0/f8106b1a-0e21-11e1-91e5-00144feabdc0.
html#axzz1mRlQM52U (last accessed on 14.02.2012).

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readings, he negated that the individual in modern society was freer than in the
past (Foucault 2008, pp. 6263). He downplayed the role of law in defending a
personal sphere of independence in order to emphasise how certain practices and
institutions (sometimes directly linked with the legal dimensione.g. the prison)
operated on the individual. Foucaults researches thus attempted to show how
power, manipulating the beliefs and behaviours of a person, played a fundamental
part in constituting her as a subject. It was precisely such lack of focus on law as an
important and self-standing element in shaping todays society that drew upon
Foucault some of the most virulent attacks by Habermas, fuelling a harsh theoretical
conflict.
In the following pages, it is my intention to take in those attacks and to analyse
them critically in order to show some deficiencies in Habermass own reading of
modern law and democracy. My suggestion is that the formal nature of Habermass
communicative approach fails to take into adequate consideration the question of
subjectivity formation. More precisely I will demonstrate that Habermass own
works show a troublesome ambivalence with regards to the possibility that
individuals can participate as unencumbered selves to the public life of their
community. As a consequence his account turns a blind eye to certain dynamics of
power in our society that a Foucauldian approach seems more apt to frame and
explore.

Foucaults Concept of Modernity: Power and Subjectivity


According to Foucault power is not a tool that can be owned and used but rather a
dynamic, the name that one attributes to a complex strategic situation in a
particular society (Foucault 1979, p. 92). It is embodied in a set of practices
routinised and reiterated processes understood as programs of conduct which have
both prescriptive effects regarding what is to be done [] and codifying effects
regarding what is to be known (Foucault 1991, p. 75)that work as a logical
ensemble.2 Power is therefore not seen by Foucault as an object or a quality that one
has or has not, rather is seen as an omnipresent field [that] is produced from one
moment to the next, at every point, or rather in every relation from one point to
another and is everywhere not because it embraces everything but because it
comes from everywhere (Foucault 1979, p. 92).3 Moving from the belief that power
in modernity is not simply repressive of deviant behaviours or actions but positively
productive in terms of individualities and socialities he favoured a bottom-up
approach that, moving from practices of subject-formation themselves, could map
broader power networks (Jessop 2007, p. 36). Within this context the place that the
2

Foucault defines this ensemble a dispositif, that is a structure of flexible and contingent but
nonetheless relatively stable relationships between practices (Penner et al. 2002, p. 960). See also
Agamben (2009).

As Bob Jessop summarises Foucault stressed three themes in his nominalist analytics of power: it is
immanent in all social relations, articulated with discourses as well as institutions, and necessarily
polyvalent because its impact and significance vary with how social relations, discourses and institutions
are integrated into different strategies (Jessop 2007, p. 35).

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individual occupies in the play of power is crucial as she ceases to be opposed to its
working but becomes integral to its mechanisms:
The individual is not to be conceived of as a sort of elementary nucleus, a
primitive atom, a multiple and inert material on which power comes to fasten
or against which it happens to strike, and in doing so subdues or crushes
individuals. In fact, it is already one of the prime effects of power that certain
bodies, certain gestures, certain discourses, certain desires, come to be
identified and constituted as individuals. The individual, that is, is not vis-a`-vis
of power; it is, I believe, one of its prime effects. (Foucault 1980, p. 98)
Following from this, power (or at least power within the horizon of modernity) is
not seen in opposition to freedom but coextensively to it. Power, constituting the
individual, also takes it as its main vector, as the means of its propagation. Internalised
by the subject, power does not subjugate completely the individual, rather it activates
certain patterns of behaviour and thinking that will implement powers own discourse
and that need a certain space of freedom to flourish and to be effective:
Power is exercised only over free subjects, and only insofar as they are free.
[F]reedom may well appear as the condition for the exercise of power (at the
same time its precondition, since freedom must exist for power to be exerted,
and also its permanent support, since without the possibility of recalcitrance,
power would be equivalent to a physical determination). (Foucault 2002,
p. 342)4
But how does the subject become in practice an integral part of the web of
power? Foucault suggested that modern power came to envelop the individual by
means of two distinctive, yet interconnected, phenomena that he termed respectively
discipline and governmentality.
With regard to the first he argued that between the end of the seventeenth and the
whole eighteenth century, a vast array of techniques to manipulate the individual
emerged focusing on enhancing the bodys productive force (Foucault 2003,
p. 242). In Discipline and Punish, the most systematic study that he dedicated to the
topic, Foucault delineated the contours of disciplinary societies, arguing that
societies came to be informed by an anatomo-politics that is a micro-physics of
power (Foucault 1977). Through a complex and multi-layered system of surveillance, hierarchy, inspections and reports upon the object of the bodysuddenly
understood as a powerful tool of production itselfdisciplinary techniques were
conceived and implemented. This disciplinary power is born within various
heterogeneous institutionsthe prison, the asylum, the factory, the armyas a
dispersed set of norms and practices thatmodelled around a principle of
economycoupled perfectly with the rising capitalistic mode of production that
was imposing its effectiveness and efficacy. Such a configuration of power thus
insisted on the single body of the person in order to create her as a docile
4

To stress this concept of activation of the subject that implies a positive working of power, not
repressive but creative, a conception that is entirely Foucauldian in nature, we would like to suggest the
neologism subjectivation.

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individual; a subject that would be well integrated in societal mechanisms


internalising standard norms of conduct. As Foucault puts it:
The historical moment of the disciplines was the moment when an art of the
human body was born, which was directed not only at the growth of its skills,
nor at the intensification of its subjection, but at the formation of a relation that
in the mechanism itself makes it more obedient as it becomes more useful, and
conversely. (Foucault 1977, pp. 137138)
From the second half of the eighteenth century onwards, Foucault saw another
technology of power that did not exclude or substitute disciplines but that, installing
itself on the substrate formed by them, operates at a different level using different
instruments (Foucault 2003, p. 242). The object of this emerging technique is not
the single body of the individual anymore but, more abstractly, the life of men itself.
As Foucault says it is a new body, a multiple body, a body with so many heads that,
while they might not be infinite in number, cannot necessarily be counted (Foucault
2003, p. 245). This body has the name of population. The problems arising along
with this new object of power are of a statistical nature, and probabilities, series and
aleatory circumstances are the kind of events affecting it. The mechanisms
characterising this new technique of power make use of the biological body as a
disciplinary technique but they follow a completely different path as they do not
deal anymore with the taming of the body of the single individual but take into
account the global entirety of a species: hence they do not discipline but regulate.
Within this context he suggested that the evolution of the modern state should be
scrutinised from the point of view of the development of such a new technology of
power that he named governmentality, a term that is a synthesis between
government and rationality (Foucault 1991).5 Attempting to show that the modern
sovereign state and the modern autonomous individual co-determined each others
emergence (Lemke 2010, p. 33) he turned to the original meaning of the word
government. Government, in the sixteenth century, did not refer just to the political
management of the state but also to the more general problem of individual conduct
(Foucault 1991, p. 87). With the individuation of the field of governmentality,
therefore, Foucault attempted to study all those activities that could concern the
relation between self and self, private interpersonal relations involving some form of
control or guidance, relations within social institutions and communities and, finally,
relations concerned with the exercise of political sovereignty (Gordon 1991, pp. 23).6
5
Foucault first mentioned governmentality in the 1st of February 1978 Lecture at the College de France
which was subsequently published in the Italian journal AutAut, no. 167168. Sept. Dec. 1978.
6

Discipline and governmentality, notwithstanding their differences, were seen by Foucault as parts of a
common dynamics of power that, focusing on the biological, aimed at managing the subject both as a
single individual and as a member of the social body (Foucault 1979, 135 ff.). Together they surrounded
the subject forcing her to internalise standards of practice, behaviours, ideology and giving rise to a
dynamics of normalisation where abidance to rational norms was of paramount importance (Foucault
2003, p. 253). The emergence of a new technique of normalisation during the late eighteenth and the
nineteenth century has therefore to be seen as the completion of a unitary surrounding manoeuvre around
the body, the final stage of a siege that puts in check the man understood as a biological machine: We
are, then, in a power that has taken control of both the bodies and life or that has, if you like, taken control
of life in generalwith the body as one pole and the population as the other (Foucault 2003, p. 253).

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His thesis was that at a certain point in history, the state ceased to be derived
from the divine order of the universe and started to be conceived as an object with
its own autonomous rationality of government and concerned mainly with the
correct management of the productive life of its population (Gordon 1991, p. 8 ff.).
This marked a profound shift in the art of government as it moved from the
administration of a territory with its population to the administration of men in
their relations, their links, their imbrication with those other things which are
wealth, resources, means of subsistence, the territory men in their relation to that
other kind of thing, customs, habits, ways of acting and thinking lastly, men in
their relation to that other kind of thing, accidents and misfortunes such as famine,
epidemics, death, etc. (Foucault 1991, p. 93, 95). The plays of power, in other
words, abandoned the dynamics of a pure repressive sovereignty or the limited focus
of disciplines to surround the individual and the population as a whole within a
triangle formed by sovereignty-discipline-government (Foucault 1991, p. 102),
aiming at an efficient and rational management of the national community. The
modern state has thus to be seen as the product of this new network of practices and,
according to Foucault, the history of the modern Western society is fundamentally
one of governmentalisation of the state (Foucault 1991, p. 104).
As a consequence Foucault claimed that
we should [not] consider the modern state as an entity which was developed
above individuals, ignoring what they are and even their very existence, but on
the contrary, as a very sophisticated structure, in which individuals can be
integrated, under one condition: that this individuality would be shaped in a
new form and submitted to a set of very specific patterns (Foucault 2002,
p. 334).
In developing his theoretical frameworkof which we have offered a very
coarse outlineFoucault apparently paid little attention to law as an element
actively shaping society. His supposed lack of regard for the role of law in the
modern plays of power even earned him the accusation of having expelled law
from the locus of power, in favour of the obscure machinations of disciplinary and
governmental apparatuses.7 Such claims have recently received some powerful
rebuttals that cast in a new light Foucaults understanding of the legal field and the
very possibility of a Foucaldian theory of law (Golder and Fitzpatrick 2009; Tadros
1998; Ewald 1990). It is not my intention, however, to engage with this debate.
Rather I would like to use Foucaults ideas to evaluate critically the theory of law
and democracy of Habermas, which is taken here as one of the most sophisticated
interpreters of the liberal tradition. By analysing Habermass positions my aim is to
point towards some limits present in liberal thinking in order to suggest that
Foucaults approach to power, focusing on practices of subjectivation, might
provide us with a better insight into the workings of law and its current political
crisis.
7

Hunt and Wickham (1994), are the main proponents of such argument. Likewise critical of Foucaults
seeming underestimation of law as a fundamental tool in stirring society are Kennedy (1993), Hirst
(1986), Fine (1984), and Poulantzas (1980).

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Habermass Attack on Foucault


Habermas proposes a full-scale critique to a Foucauldian approach to power and
law. Taking into consideration Discipline and Punish, Habermas claims that
Foucaults understanding of the changes in penal practice around the close of the
eighteenth century as the inception of a disciplinary turn in the dynamics of power is
false in its generality (Habermas 1994, p. 100). According to Habermas, Foucault
can propose his thesis only by moving from the premises of a theory of power for
which the normative structures of the development of law remain elusive
(Habermas 1994, p. 100). As a result Foucault disregards the normative impact that
philosophies like utilitarianism and the Kantian theory of morality and lawwhich
he sees connected with the emergence of disciplinehave had on modernity. He
simply does not go into the fact that these in turn serve the revolutionary
establishment of a constitutionalized state power, which is to say, of a political order
transferred ideologically from the sovereignty of the prince to the sovereignty of the
people (Habermas 1994, pp. 100101). In Habermass opinion, Foucault
precisely because of his normative hollow theory of powerneglects the
development of normative structures in connection with the modern formation of
power (Habermas 1994, p. 101). Within this perspective the modern discourse of
law is heavily underestimated with regards to its internal rational content:
whereas the sovereign power of classical formations of power is constituted in
concepts of right and law, this normative language game is supposed to be
inapplicable to the disciplinary power of the modern age; the latter is suited
only to empirical, at least nonjuridical, concepts having to do with the factual
steering and organization of the behavioural modes and the motives of a
population rendered increasingly manipulable by science (Habermas 1994,
p. 101)
Overall, in Habermass interpretation, the entire object represented by modern
law is overlooked in Foucaults grim account of the modern penal system. Foucault
is bound to disregard it otherwise:
he would have to submit the unmistakable gains in liberality and legal
security, and the expansion of civil-rights guarantees even in this area, to an
exact interpretation in terms of the theory of power. However his presentation
is utterly distorted by the fact that he also filters out the history of penal
practices itself as aspects of legal regulation. In prisons, indeed, just as in
clinics, schools, and military installations, there does exist those special
power relationships that have by no means remained undisturbed by an
energetically advancing enactment of legal rights. (Habermas 1994, p. 102)
Habermas, in other words, accuses Foucault of ignoring the normative dimension
of law to subscribe to a grim vision of the modern legal phenomenon. Law is
understood as a mere spectacle for the manipulating play of a fathomless power and
Foucault is consequently unable to recognise the development of legal rights as a
limit to the influence of power and as an instrument for individual and collective
self-determination.

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In contrast, Habermas proposes a sophisticated liberal interpretation of modern


law. In a series of books and articles Habermas has suggested that modern law is
constituted by a normative and a factual dimension. Law is, in fact, a set of
commands backed by sanctions and at the same time a series of rules of action that
demands compliance on the basis of its legitimacy (Habermas 1996, pp. 3841,
447). This tension, according to Habermas, was already present in Kant but was
resolved solely on metaphysical and moral grounds (Habermas 1996, pp. 2832).
That kind of reasoning is of very limited use in our contemporary society that is
characterised by secular thinking and moral relativism (Habermas 1992). Habermas,
trying to overcome these limitations through the application of his theory of
communicative action (Habermas 19841987), attempts to provide an interpretation
that would be both normatively attractive and sociologically sound.8
The central foundation for such an ambitious project is represented by
Habermass discourse-principle which states: [j]ust those action norms are valid
to which all possibly affected persons could agree as participants in rational
discourses (Habermas 1996, p. 107). The application of this principle to the legal
context would lead to a situation where only those [regulations] may claim
legitimacy that can meet with the assent of all [parties] in a discursive process of
legislation that in turn has been legally constituted (Habermas 1996, p. 110). This
system provides a powerful scheme of legitimisation. Granting the parties a space of
communicative freedom where they would be able to coordinate their action
plans on the basis of a consensus that depends in turn on their reciprocally taking
positions on, and intersubjectively recognizing, validity claims (Habermas 1996,
p. 119).
In order to make possible such a dynamic every democratic legal system must
work out a basic system of rights that would guarantee the equal and fair
participation of every citizen to the legal and political discourse (Habermas 1996,
pp. 121136). Every single citizen would, in this way, have the possibility to
participate actively in the construction of democracy. The political discourse would
be supported by a broad, inclusive, spectrum of reasons (Habermas 1996, p. 460),
bringing within the public arena citizens actual interests and values. The outcome is
a communicative power that has a real impact on formal decision making and
action that represents the final institutional expression of political will (Rehg
1996, p. xxviii). In this context law has the fundamental function of a transformer
or a transmission belt that picks up the political directions coming from society
and, through the administrative system of the state, organises society according to
those very directions (Habermas 1996, pp. 448449).
To fulfil this task law will have to endorse a system of rights understood as a
minimal but absolutely necessary constitutional structure for any democratic state

If law is essentially constituted by a tension between facticity and validitybetween its factual
generation, administration, and enforcement in social institutions on the one hand and its claim to deserve
general recognition on the otherthen a theory that situates the idealizing character of validity claims in
concrete social contexts recommends itself for the analysis of law. This is just what the theory of
communicative action allows, without the metaphysical pretensions and moralistic oversimplification we
find in Kant (Rehg 1996, p. xii).

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(Habermas 1996, pp. 122123).9 Negative liberties, membership rights and dueprocess rights guarantee the private autonomy of the individual. Rights of political
participation and social-welfare rights, on the other hand, guarantee the formal and
substantial aspects of public autonomy. It must be noted that these rights do not
stand in any hierarchical relationship and each side is indispensable for the other.
They are, in other words, coextensive and form the conditions of existence of
deliberative democracy (Habermas 1999, p. 261).
Under these conditions law will be valid from a double perspective: a formal one
since there is a fundamental sphere of autonomy that cannot be invaded by law itself
(we would call this the negative legitimation of law); and a substantial one that
stems from the fact that law becomes a reason for action once it has come about
through a democratic process of opinion and will formation that can justify the
presumption that outcomes are rationally acceptable (Habermas 2001, p. 779).
Within this context the rule of law, basic rights and constitutional restraints play
a crucial role in channelling a democratic practice; in addition, they are backed by a
substantial practice of ethical and political communication and interaction. Law and
democracythe very characteristics that we have earlier used to define the modern
stateare thus interpreted as mutually enforcing and depending and, as a result,
they are capable of reaching a double goal: on the one hand they stand out as a
mechanical tool for social coordination eventually backed by coercive sanctions; on
the other hand, they work as a vehicle of political integration for they are
instrumental in achieving a meaningful rational understanding and acceptance
between diverging normative positions.

The Problems of Habermass Liberal Theory: The Ambivalence Towards


the Subject
Habermass description of law appears, at first, to be a more accurate account of the
modern legal-political situation than that suggested by Foucault. However a closer
scrutiny will demonstrate that the above liberal picture presents certain inconsistencies that a Foucauldian approach seems better suited to grasp. It is generally
recognised that at the emergence of the modern state, liberal theory was in itself
insufficient to create a framework of ethical recognition and political integration.
Habermas himself, among many others (see, for example, Gellner 2006; Smith
2001; Miller 2000), shows that, historically, constitutional rights guaranteeing
private and public autonomy were not enough to hold together the new socio9

Habermas recognises as necessary five groups of rights: (1) Basic rights that result from the politically
autonomous elaboration of the right to the greatest possible measure of equal individual liberties; (2)
Basic rights that result from the politically autonomous elaboration of the status of a member in a
voluntary association of consociates under the law; (3) Basic rights that result immediately from the
actionability of rights and from the politically autonomous elaboration of individual legal protection; (4)
Basic rights 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; (5) Basic rights
to the provision of living conditions that are socially, technologically, and ecologically safeguarded,
insofar as the current circumstances make this necessary if the citizens are to have equal opportunities to
the civil rights listed in (1) through (4) (Habermas 1996, pp. 122123).

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political communities of modern states. The idea of nation10 was necessary for the
formation of a common identity for the whole population. It helped to create a sense
of belonging; overcoming social, cultural and economic differences among citizens
and the weak that were too often solely formal; and equality and freedom under
general and abstract laws. As such the notion of national identity is both a modern
object and an artefact-object. In this regard Zygmunt Bauman observes:
The idea of identity, and a national identity in particular, did not gestate
and incubate in human experience naturally, did not emerge out of that
experience as a self-evident fact of life. That idea was forced into the
Lebenswelt of modern men and womenand arrived as a fiction. It congealed
into a fact, a given, precisely because it had been a fiction, and thanks to the
painfully felt gap which stretched between what that idea implied, insinuated
or prompted, and the status quo ante (the state of affairs preceding, and
innocent of, human intervention). The idea of identity was born out of the
crisis of belonging and out of the effort it triggered to bridge the gap between
the ought and is and to lift reality to the standards set by the ideato
remake the reality in the likeness of the idea. (Bauman 2004, p. 20)
Here we can immediately draw a first observation concerning the liberal account
of the rise of the modern state. The dynamic of power that led to the formation of
national stateand in general any dynamic of poweroperated not only at the level
of law and democracy but also at the level of individual subjectivity, shaping
personal identities and ingraining them within its mechanisms. Therefore, as the
case of the rise of modern states shows, an historical account of law, democracy and
state cannot neglect a careful analysis of practices of subjectivation. Any
interpretation of the development of the liberal complex must be accompanied by
a thorough description of how the deep interstice between the general and abstract
legal subject and the single, concrete individual has been filled by the substance of
common, artefact identities. National identity was certainly one of the most
important versions of this connective substance, but what about other practices?
What about all the other dynamics of subjectivation that through the decades and the
centuries have told the individual how to act, live and think? The national sentiment
seems just one of these dynamics and an attentive scrutiny attempting a holistic
understanding of the workings of law cannot be satisfied by this dimension alone.
Quite the contrary, it has to address the various powers, discourses of knowledge,
disciplines, norms and institutions that have activated the subject of liberalism and
helped to shape and channel her concrete subjectivity. This is something that a
liberal understanding of law seems to neglect but that is central in a Foucauldian
analytical framework (Foucault 2003, pp. 2930).11
The need for an alternative take on law that would take more seriously the
question of subjectivity emerges even more clearly in relation to the looming
10

Often construed along lines of pure fiction see Anderson (2006) and Hobsbawm (1992).

11

It must be stressed, however, that Foucault does not adopt a power-determined vision of the subject.
Rather he sees the individual as intrinsically enmeshed with the discourses of power/knowledge (Oksala
2005, p. 95). To this extent Foucaults interest is in showing the extent to which subjects are the effects
of discourses or [sic] power by bracketing the relative autonomy of the subject (Kelly 2009, p. 89).

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problems of our contemporary multicultural times which are proving testing for the
whole liberal legal-political structure. Addressing this issue Habermastaken as
one of the most sophisticated interpreters of liberalismsuggests that the idea of
nation and nationalism are not tenable any longer. He recognises lucidly the
immense transformations that our society is undergoing in the present day and he is
aware that the traditional legal and political structure of the nation state is at odds
with an economic globalisation that conjures the image of overflowing rivers,
washing away all the frontier checkpoints and controls and ultimately the bulwark
of the nation itself (Habermas 2001, p. 67).12 More precisely Habermas sees that
globalisation puts into danger three fundamental pillars of the modern state:
territorial sovereignty, democratic self-determination and democratic political
legitimation (Habermas 2001, pp. 6365). Nonetheless, against the gloomy visions
of postmodernists and neoliberals, he rejects the end of politics in favour of a
renewed effort towards political normativity.13
Within this context, the progressive development of the European Union as a
supranational democratic environment has long represented for Habermas the
(problematic) embodiment of his political ideal. Taking the European Union as an
example of democratic regimes to come, he suggests that what is needed in order to
create a new politics that would go beyond national borders is not a technocratic
institutionalisation of economic markets but the fostering of a new civil solidarity.
Such solidarity, once limited to the national dimension, should expand to include
all citizens of the union, so that, for example, Swedes and Portuguese are willing to
take responsibility for one another (Habermas 2001, p. 99). Against the so-called
no-demos thesis,14 Habermas argues that the old social and cultural artefact of
national identitythat made possible the establishment of solidarity among the
citizens of the new-born statesis not needed anymore (Habermas 2001, p. 102).
Quite the contrary, in a multicultural society the solidarity of citizens is shifted
onto the more abstract foundation of a constitutional patriotism (Habermas 2001,
p. 74).
Taking into consideration these suggestions we can now offer a broader criticism
of Habermass vision of modern law. One cannot help but notice that according to
Habermas, during the first emergence of national states, the construction of a
fictional identity that could join together a population restructured in comparison
with medieval times was something necessary. In the globalised dynamics of our
contemporary world, however, Habermas seems to be forgetful of the role that
identity formation plays in our society. Calling the modern citizen to a discursive
endeavour he is implicitly taking the modern subjects as an unencumbered self.
12
Habermas sees that the national state is caught in a double envelopment both internally and externally:
Globalization forces the nation-state to open itself up internally to the multiplicity of foreign or new,
forms of cultural life. At the same time, globalization shrinks the scope of action for national
governments, insofar as the sovereign state must also open itself externally, in relation to international
regimes (Habermas 2001, p. 84).
13
We will be able to meet the challenges of globalization in a reasonable manner if the postnational
constellation can successfully develop new forms for the democratic self-steering of society (Habermas
2001, p. 88).
14

About the no-demos thesis see Grimm (1995). For a reply: Habermas (1995), Weiler (1995).

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Within our times Habermas sees the idea of nation as a worn out carapace now
useless for a community of individuals that have reached normative, political and
communicative adulthood and that are engaged in a pure rational mutual
understanding. Certainly the idea of nation, once fundamental for the working of
the state, is fading away as the centre of individual identity, notwithstanding certain
recurring ethnic regurgitations. But Habermas simply assumes that this demise
(together with the emergence of a universal system of rights) has set free the rational
nature of the modern individual and plainly disregards the contemporary issue of
identity (how is identify formed? What are the power discourses that impinge on
it?). Why the question of subjectivation, which, as Habermas himself acknowledges,
is so fundamental to comprehend the political history of the last 300 years, should
be abruptly abandoned in our day?
Fully embracing the paradigms of Enlightenment Habermas treats nationalism as
an historical epiphenomenon of the rational discourse of modernity, an instrumental
occurrence with no substantial meaning. The issue of identity and subjectivity has a
similar contingent and transient character if compared with the march of
communicative power in the world. Confronted with the challenges of globalisation
and the unfulfilled goal of integration of modernity Habermas candidly suggests a
renewed commitment towards the unfinished project of modernity. It is unclear,
however, why we should finally see in the contemporary time recognition and
integration based on law and rights alone and disregard the thorny issue of how the
subject is shaped and channelled. It is far from proven that the understanding of
democracy and of the state can now proceed solely on consideration of law alone
(constitutional patriotism being our social glue), without any inquiry into the actual
concrete existential condition of the subject. The liberal vision of modern
democracy thus seems unsubstantiated as a framework beyond systemic crisis that
can self-referentially work out its own problems.
The result of such unfailingand to a certain extent uncriticalsupport for the
classic edifice of modernity causes Habermas to be quite vague with regards to
particular dynamics of power insisting on the individual. When he argues in favour
of the project of modernity as enshrined in constitutional patriotism, his seems a
little more than a normative cry and not a reflection on the future of politics, as he
does not bolster his position with any empirical study or structured evidence. As a
matter of fact phenomena such as the resurgence of nationalist movements across
the globe (Antonisch 2009; Kaldor 2004; Delanty and OMahony 2002) and the
blighting of the public sphere of deliberation embodied by the state in favour of
opaque transnational dynamics of power and regulation (Strange 1996) appear to
contradict directly Habermass hypothesis.
The stern support for politico-institutional experiments such as the European
Union, notwithstanding their enduring inability to achieve a true social and political
cohesion,15 in this sense, is particularly telling of Habermass almost idealistic
position. Habermas has long downplayed or reframed in a pan-European optimistic
perspective the problem of an ethical communitarian bond that would unite different
15
It must be noted that Habermas is fully aware of Europes shortcomings in terms of actual integration
(Habermas 2009, 2007).

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populations in a post-national constellation,16 but it is in relation to the current


fiasco of the EUs politico-institutional mechanisms that his trust in the liberal
model of democratic participation is most openly unjustified. His remarks on the
planned strengthening of executive bodies in the EU institutional framework as a
reaction to the current crisis have been unsurprisingly negative.17 Hardly shaken in
his convictions by the crumbling of the European democratic project he stubbornly
insists in his theoretical scheme. In a worried tone he has suggested that the only
way out from the present European predicament is to be found in a renovated
commitment towards the democratic process. Against solutions that would lead the
EU in the direction of techno-financial governance, Habermas raises his voice in
favour of a stronger political union among European states that could foster a deeper
democratic integration. Disregarding the fact that todays political crisis of Europe
and its submission to the rule of the market has been reached notwithstanding the
progressive establishment of a democratic practice such as suggested by his theory,
Habermas maintains that only that very practice could save us from the depths of
our situation. Defending the post-national European model of democracy he is
largely uncritical about his own understanding of liberal democratic practices.18 In
his call to arms to rescue the European project, he attacks the perverted
mechanisms of the markets, the political class for its short-term electoral-driven
strategies, and the media for their failure in supporting a truly communicative
environment, but he does not seem to identify any structural problem in the
democratic liberal scheme which he supports. Habermass solution, apart from a
virulent reprimand against certain sectors of society for not abiding by the rules of

16

After acknowledging the bloody and tragic history of Europe, Habermas depicts the Old Continent in
such rosy tones: In happier moments [] conflicts have acted as a spur toward the decentering of
perspectives; as an impulse toward critical reflection on, and distancing from, prejudices and biases; as a
motive for the overcoming of particularisms, towards tolerance and the institutionalization of disputes.
These experiences of successful forms of social integration have shaped the normative self-understanding
of European modernity into an egalitarian universalism that can ease the transition to postnational
democracys demanding contexts of mutual recognition for all of uswe, the sons, daughters, and grand
children of a barbaric nationalism (Habermas 2001, p. 103). Looking back at recent European history,
however, we cannot be so cheerful. Indeed we are experiencing a time of relative European peace and
prosperity, but we must not forget the violent tensions that have shaken and still strain Europe. The
political revolt of 68, the Italian and German terrorism of the 70s and 80s, the Yugoslavian Civil war
and the Kossovo War, and the more recent (2005) French banlieu unrest remind us of a less harmonic
European history.
17
Habermass latest book Zur Verfassung Europas is not yet available in its English translation
(Habermas 2012) as I write. Excerpts from the book have, however, appeared on the international press.
See Democracy is at stake, 27.10.2011, available at http://www.presseurop.eu/en/content/article/
1106741-juergen-habermas-democracy-stake (consulted on 14.02.2012); Europes post-democratic
era, 10.11.2011, available at http://www.guardian.co.uk/commentisfree/2011/nov/10/jurgen-habermaseurope-post-democratic (both URLs were last accessed on 14.02.2012).
18
The only self-critical comment he has publicly offered does not go beyond the level of matter-offactness: Sometime after 2008 I understood that the process of expansion, integration and democratization doesnt automatically move forward of its own accord, that its reversible, that for the first time in
the history of the EU, we are actually experiencing a dismantling of democracy. I didnt think this was
possible. Weve reached a crossroads (A Philosophers Mission to Save the EU, 25.11.2011, available
at http://www.spiegel.de/international/europe/0,1518,799237-2,00.html (last access on 14.02.2012).

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democracy as he sees them, amounts to a more central role for the European
Parliament in the decision-making process.
Broadly speaking, Habermas, while he is able to provide a convincing description
of the theoretical principles and dynamics of modern law and democracy, seems to
fall short in accounting for certain of their most troublesome and dangerous
dilemmas and potential crises. He comes short of explaining why, after a first
successful period of inclusiveness and integration, liberal democracy is now
increasingly plagued by conflicts, by centrifugal forces, and generally wanting in
legitimacy.19
In Habermass vision, law is meant to guarantee coordination between subjects
through communicative action, but one must recognise that communication itself
occurs between individuals that have been already touched and shaped by power.
Habermass line of argument disregards the influence of various discourses of power
on the formation of the (supposed) pre-political individual. As Habermas himself
argues, the identity of an individual is not something spontaneous or natural. It is on
the contrary a complex object that is largely shaped by a dominant narrative in
society.20 Within democratic systems and in the context of modern laws
development, such narrative has been greatly reshaped as compared with the
Middle Ages. In that era the concept of the individual was rigid, fixed, reflecting a
metaphysical order (Patterson 1991). Modern society has certainly gone a long way
from that model pointing instead towards a more egalitarian conception of mankind
and emphasising the free agency of the individual.
Nonetheless, it seems hard to maintain that this transformation has had an
absolute liberating effect on the self. The rigid identity typical of the Middle Ages
had a very thick substance, a viscous condition from which it was almost
impossible to escape. The belonging of an individual to a particular segment of the
communitye.g. the peasantryfixed her role within society both from a legal and
existential point of view; it limited greatly her development as a human being and
determined, to a large extent, her way of thinking and being in the world (Bloch
1961). This thick identity was slowly substituted through the centuries at a
political level by a more thin one that apparently left the individual freer in
comparison with earlier times. In modernityas Habermas himself has shown well
(Habermas 1989)the reframing of the conditions of participation to the public and
political discourse of society has caused more inclusive frameworks and dynamics.
But this liberation of identity was largely a legal one and it would not be possible to
substantiate a claim that it led automatically to the emergence of an unencumbered
existential personal self. Not surprisingly, sympathetic readers of Habermass
works, like Sheyla Benhabib, have warned us against liberalisms tendency to see
the individual as a generalized Otheras an abstract legal subject that does not
19
Beyond the current European crisis, the rise of xenophobic movements across the globe and especially
in advanced liberal democracy is just one of the many examples of such worrying tendencies. See Roemer
et al. (2007). Separatism is also a relevant (and growing) issue, see Laible (2008).
20
Tilly (1996, p. 7) defines identity in the following terms: an actors experience of a category, tie role,
network, group or organization, coupled with a public representation of that experience; the public
representation often takes the form of a shared story, a narrative.

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reflect the colourful multiplicities of each single individual lifeand to question


more deeply the political perspectives of liberalism (Benhabib 1992).

Conclusions
The question of how the individual has been subject to a cultural and intellectual
reshaping at the substantial level of identity must be taken in consideration if we
want to achieve a satisfactory understanding of the modern legal phenomenon. We
cannot assume that, since the legal subject has become freer (and we must
remember that it did so in a slow, patchy and contrasted way), this was also the
unqualified case for the concrete person. Quite the contrary, we must focus on this
decoupling between the legal and concrete subject. We must realise that in
modernity there are these two levels of identity and that law cannot be studied in
isolation from the concrete existential dimension of individuals.
What we need to take into consideration, in other words, is that in modernity the
separation between the substantive concrete individual and the general and abstract
legal subject should lead us to understand that law is part of a concatenation that
includes specific dynamics of subjectivation. In this perspective a Foucauldian
perspective could prove particularly useful. Focusing on the ways in which modes
of subjectivation shape the individual it certainly seems a promising framework for
investigating how the concrete subject is modelled by various discourses of power/
knowledge. It will show how the discourse of law is always dialoguing with other
discourses, how the legal subject can never be taken as an unencumbered self but,
on the contrary, it is always to be seen as connected with a substantial individual
whose mind and body are continuously under the gaze of power. Contrary to
Habermass assertions, Foucault did not see power as a normatively hollow space.
Rather he attempted to unearth their contours genealogically as a normative space
by questioning at the fundamental level of subjectivity the paradigms of their
workings. Maybe, in consideration of todays challenges of integration and
recognition which our globalised society is facing, Foucaults thinking should not be
seen as an absolute critique of the unfinished project of modernity based on the
liberal ideal, but as a useful sounding board to reflect critically on that very project.

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