Deconstructing Habermas by Lasse Thomassen

Author:Lasse Thomassen [Thomassen, Lasse]
Language: eng
Format: epub
ISBN: 9780415541169
Barnesnoble:
Publisher: Taylor & Francis
Published: 2013-03-21T00:00:00+00:00

4 Civil disobedience within the limits of deliberative reason alone

INTRODUCTION: CIVIL DISOBEDIENCE AS LITMUS TEST

In a piece on civil disobedience, Jürgen Habermas suggests that we take the treatment of civil disobedience as a litmus test of the maturity of the political culture of a constitutional democracy.1 ‘Every constitutional democracy that is sure of itself’, he writes, ‘considers civil disobedience as a normalized—because necessary—component of its political culture’.2 In this chapter, I take Habermas’s treatment of civil disobedience as a litmus test of the way he deals with the imperfectness of a deliberative, constitutional democracy. Civil disobedience precisely points to a lack in the legitimacy of the law. I am interested in what Habermas’s writings on civil disobedience tell us about his notion of deliberative, constitutional democracy ‘before the revolution’, to quote the title of a recent paper on deliberative democracy and civil disobedience by Archon Fung.3

Civil disobedience takes place in the gap between legality and legitimacy. This gap results from the absence of autonomy understood as rational self-legislation; hence, civil disobedience is linked to the absence of rational law and rational consensus. In this way, the question of civil disobedience is linked to issues raised in the first three chapters: civil disobedience, for Habermas, implies a tension between rational consensus and majority rule; it must, according to Habermas, contain a reference to the content of the constitution and the public character of lawmaking; and the relationship between the state, or the majority, and the civil disobedient is also one of tolerance. Insofar as civil disobedience is connected to the absence of rational law, we can use civil disobedience as a litmus test of the way Habermas responds to the absence of autonomy and rational law: what are the implications of taking seriously Habermas’s claim that civil disobedience is a necessary and normal part of a mature constitutional democracy? What are the implications for Habermas’s attempts to provide a rational theory of constitutional democracy? These questions are all the more important since Habermas and other deliberative democrats are often accused of idealism and rationalism. My argument is that civil disobedience exposes an ambiguity in Habermas’s work. It can be described as a tension between two possible readings of his writings on democracy and law. On one reading, rational law and the reconciliation of legality and legitimacy are possible, at least in theory. On another reading, there is a constitutive gap between legality and legitimacy so that autonomy and rational law can never be realized, whether today or at some point in the future. I will suggest that the imperfectness of democracy is constitutive, and that we must integrate the constitutive imperfectness and the ineradicability of disagreement into our conception of democracy. Further, if, as we saw in chapter 1, rational consensus can never be reached and rational discourse is never transparent, the decision to carry out an act of civil disobedience and to tolerate such an act cannot be dissolved in what Habermas calls the ‘subjectless forms of communication’ of citizens’ public use of reason.

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