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Reading between the lines

Law without right

  • Between Facts And Norms: Contributions To A Discourse Theory Of Law And Democracy
    Jurgen Habermas, Polity Press, £14.95 pbk

  • Politics: The Central Texts
    Roberto Mangabeira Unger, Verso, £15 pbk

As the law is extended into more and more areas of everyday life, James Heartfield challenges some recent attempts to rationalise legal activism

Law without right

New laws are being drafted every day. Take a look at the book of British statutes, and you will be surprised to see that the legislation drafted since 1979 takes up as many volumes as that drafted in the entire history of English law up to then. Passing laws seems to be the only thing that governments do. If there is seen to be a problem, the first instinct will be to pass a law, or institute a new regulation about it.

It is not only governments that are keen on passing laws. Legal activism is a growing arena of political life. All kinds of campaigning groups and public institutions are lobbying for new restrictive laws to be passed. Women's groups have lobbied for new laws on harassment and for changes to the law on rape. Black activist groups have campaigned for the new law of racially motivated assault. Environmental groups lobby for new restrictions on pollution. So what is really driving the increasing juridification of everyday life?

Two people who have thought about the law as a radical resource are Roberto Unger and Jürgen Habermas. The Brazilian Unger is Professor of Law at Harvard University, whom Perry Anderson called 'a philosophical mind out of the Third World turning tables to become a synoptist and seer of the First'. Jürgen Habermas is Germany's foremost sociologist and a lifelong champion of 'communication ethics' a theory of human cooperation on the basis of mutual respect. Both of these authors are concerned with state power, since both have come from the left of politics, and both were disillusioned by the traditional left's programmes of state-led reform. And yet despite being critics of the extension of state power as advocated by socialism in the past, both here seek more state intervention by way of legal activism.

Habermas in particular is aware that he is changing his view of the state. Worried that he is giving up too much to the law, he tries to work out some guarantees that new laws will not involve a loss of personal autonomy. The way he does that is to reconstruct the ideal theory of the law in his mind. Without getting too involved in particular laws, Habermas wants to work out what the general theory of law is, and the way that it relates to freedom. That way he has a measure against which he can test the new kinds of laws to see if they clash with the basic idea of freedom. Habermas' general theory of the law is very good, and well worth looking at here - especially because the points at which he gets it wrong are very revealing. Looking at traditional theories of law and the state, Habermas tidies them all up into one general theory, but when he puts his own ideas in they stick out like a sore thumb.

Habermas looks at two different sides of the law. The first is the civil rights that people have, their independence, and their right to strike deals with one another. As Habermas rightly sees it, these rights derive their authority from the individuals themselves. In the adjudication of contracts, the law does not seem to impose a decision from outside. It only enforces the decisions that you yourself have made. You might regret it now, but when you signed your soul to the Devil you embodied your will as an enforceable contract. Consequently, you have nobody but yourself to blame, when he comes to collect.

Things are different with the 'system of rights' that exists in any country, principally as its written laws and its political constitution. Unlike civil rights, the laws of the land are not meant to derive from self-interest. Instead they exist to ease the intercourse of society as a whole. More often than not, these laws have been understood in a very different way from the civil rights between people. Instead of being 'rights' they are seen as 'goods'. That means that they are not open-ended and they do not say you can do what you want to do, so long as you don't interfere with anybody else. Instead they have said 'this is the proper way to behave'.

The proper way to behave could mean all sorts of things, such as saluting the flag in school, or raising a good Christian family or caring for the poor and sick. In any event, these 'goods', or morals are not supposed to be selfish goals. They do not derive their authority from the will of individuals seeking their own benefit. Instead they are directed at the good of society as a whole.

Habermas argues that these moral justifications of the laws of the state have generally been based on tradition. Traditions like the British monarchy, or the American Flag, or the destiny of the German volk, underpinned the authority of the state. These traditional beliefs trumped individual rights. It is as if to say 'America - love it or leave it', or 'that's not Cricket', whenever somebody crosses the line by putting self-interest before the established order. But Habermas argues that these trad-itions have lost their authority today. We live, he says, in a post-traditional age. The days when Johnny Appleseed would tug his forelock to the American flag are long gone. For that reason Habermas rejects the attempts by communitarian thinkers to artificially reconstruct the idea of a good society as well-intentioned, but doomed.

Instead, says Habermas, we must found our ideas of the system of rights on a different liberal tradition, of popular sovereignty and the social contract. Habermas understands that the perennial conflict between those who emphasise individual rights, and those who emphasise collective responsibilities, is based on a confusion. As he says, the basis of civil rights and the political state are not as hostile as they seem. Underlying them is the same ruling principle of free choice. That seems silly to those who think that individuals choose, but states dictate. But the idea of a modern state is based on the principle that the state acts on the basis of the choices of the people. Just as under civil rights we all make our own choices, so in the idea of the modern democratic state, we choose as a collective individual, a 'people', 'the voters' or 'the nation' decides.

When you strip away all the traditional justifications of state authority, says Habermas, you are still left with this liberal proposition that the state is a social contract, that derives its authority from the sovereign will of the people, in a similar way to that in which a contract between two parties derives its authority from the decided will of those parties.

Anybody who is thinking that this is a load of hogwash, should think again. Of course it is reasonable to protest that the state purports to be acting on our behalf, but somehow ends up favouring the rich and powerful. Equally it is reasonable to point out that the contract between employee and employer is far from equitable, because employees have only enough money to live on, while employers have control over the wage fund. They may be formal equalities that fall short of substantial equality, but that in itself is not an objection to the rights enshrined in the law. On the contrary, these rights are impressive gains, that put a premium on human decision-making, and should not be rubbished lightly. The sentiment behind US politician Al Smith's aphorism that there's nothing wrong with democracy that more democracy can't fix is a good one. But more importantly, it would be a mistake to throw away civil or political rights when they are not the problem. If anything our problem today is the opposite, that freedom, even in the restricted form available in a market society, is seen as a dangerous thing.

However, good as Habermas' reconstruction of the classical theory of rights and the law is, it is impossible not to notice an underlying caution on his part. There is one word that sticks in his throat, which is a problem because it is the word for the thing that the entire theory of rights rests on - 'the subject'.

The essence of the argument outlined above is that subjectivity is the principle which combines civil and political rights. The contract is made by an individual subject, the social contract by a collective subject. Because the state claims to derive its power from the will of the people it is an act of self-determination, just as the freedom to strike a bargain is a small act of self-determination. God knows there are enough qualifications placed upon the freedom of choice, both at the individual level and at that of political representation, but the principle itself is a great one.

Habermas, however, sees things differently. For him the idea of the sovereign subject is a dangerous one. He is thinking of his experiences as a young man in Hitler's Germany, when the politics of subjective choice appeared to be concentrated in one source of authority, the Führer. Habermas has often explained his hostility to the politics of subjectivity, and does so again here. 'To the extent that we become aware of the inter-subjective constitution of freedom, the possessive-individualist illusion of autonomy as self-ownership disintegrates', he writes cryptically. What he means is that we are only free individuals because we live in a society that can support our different ambitions and projects. The freedom to buy Coke or Pepsi rests on extensive social networks that produce and distribute the product, the money to buy it with, the laws that uphold the right of ownership and so on.

To that extent, Habermas' point is not different from one that was often made by the better theorists of rights, such as Rousseau, Hegel and T H Green - that individuals do not become individuals because nature makes them that way. Rather, they become individuals through society. Where Habermas goes further is in taking this to mean that individual subjectivity alone is a bad thing, and consequently misunderstands the claim of liberal societies. Not subjectivity, but inter-subjectivity is the basis of freedom, he says, where inter- subjectivity means the negotiation between subjects, rather than the will of subjects. It is a distinction that can appear to be a bit pedantic, but in the development of his ideas it makes more sense. Habermas is saying that the thing we should value is not our free will, but the way that the clash of many wills prevents any one will from taking precedence. He means that the rules we all observe to get along are more important than what any one of us wants. This is a theory that puts a premium not on subjectivity, but on the constraint of subjectivity, meaning more laws to govern our behaviour.

Habermas goes even further in arguing for the restraint of the collective subject of a sovereign people. He considers the collective subject as a dangerous development of the principle of subjectivity. Like Unger, he thinks that the collective subject in power will tend towards dictatorship, and must be constrained by constitutional devices that frustrate majority rule. People's choices in Habermas' sociological theory, whether they are the individual choices of civil rights, or the collective choices of political rights, are something to be feared and constrained rather than welcomed. And with that distrust of subjectivity it is difficult to see what remains of the liberal theory of rights that Habermas purports to support.

Substantially, Habermas' overriding concern is not freedom, but order. Like the university professor he is, who once chided his radical students for occupying the college (only to change his mind when he saw that they were all pretty respectable people really), Habermas wants everything to proceed in an orderly fashion. He supports civil rights because he thinks these are the best guarantee of order. It is not that he values individual freedom in its own right, but that he thinks that we will not accept the social order without that concession. His view of political rights is similarly qualified. In proposing that the laws of the land must be derived from collective decision-making, he is not saying that he values collective decision-making. Rather he sees it as a price worth paying for people to grant the law legitimacy. It is the legitimacy of the social order, not its actual derivation from the popular will that he wants.

Habermas' overriding concern is to see people obey the law, not to see them make it. He is prepared to put up with them being formally consulted in the making of the law, if that is the best way to get them to obey it. His goal is not freedom, but consensus. In the end Habermas' conditional support for freedom of choice leads him away from the classical view of rights that he says he is defending, and towards a greater degree of legalistic regulation of everyday life.

In contrast to Habermas, and interestingly for a Harvard law professor, Roberto Unger is a bit of a wild man. His over-arching view is that society is a human artefact, and that being made by men, it can be remade in whatever way we see fit. His activism leads him to the view that any consideration of the objective restraints upon action is just an excuse for hanging back or, worse still, a justification for entrenched power. In this at least, Unger is refreshingly free of the viewpoint that nothing can be done. However, when we look at what he thinks should be done, it is evident that the activism he has in mind is principally about putting legal constraints upon society. His iconoclasm is reserved for traditional ideas of freedom, but in his self-consciously utopian strategies, he is most concerned to restrain power rather than use it.

Unger spills a fair bit of ink attacking the traditional idea of the separation of powers - the distribution of power between different state bodies such as the legislature, executive and judiciary - as a trick by conservatives to keep radical hands off of the levers of power. However, his own proposals for 'empowering democracy' seem designed to go even further in the disaggregation of power. Unger looks forward to a multiplication of the 'number of branches in government' so as 'to prevent any section of society from gaining a lasting stranglehold over the material or human resources that can be used to generate the future of society'. Well, you know what he means - capitalist monopolies - but this is a strangely cautious view. For somebody who started out saying that we can change the world, his principal ambition seems to be to stop anybody changing it.

In particular, Unger wants to see the law intervene in new areas of social life, that traditional theories of the market are resistant to: 'The adjudication of localised disputes over the boundaries of rights may best be conducted by officials removed from the pressures of conflict over uses of governmental power and expert in the entire body of law.' From reshaping the world Unger has rapidly gone to handing power to bureaucrats and lawyers, to resolve the intractable problems that we mere folk are insufficiently expert in the law to resolve. At least that will ensure that his students will get jobs, though quite what it has to do with democracy is anybody's guess.

Interestingly, this is the direction that Habermas' conditional view of freedom leads him as well. Returning to his old problem that the welfare state tends to take away people's personal freedom and responsibility, he proposes a series of safeguards for that eventuality: 'class action suits or community complaints, as well as the creation of ombudspersons [sic], arbitration boards, and such, will counteract the disempowerment of overburdened clients only if collective legal protection...involves them in the organised perception, articulation and assertion of their own interests.' As well as the alarming growth of bureaucratic regulatory bodies, Habermas advocates a quite different model of popular sovereignty than the one he started with. This is not the people's choice, it is a consultation procedure, 'involving people' (involve: include, or entangle, according to my thesaurus), designed to give the appearance of legitimacy, rather than the fact of popular control.

Of course, Habermas has no loyalty to the principle of free subjectivity as such, only to the principle that we all should get along. With that outlook he is well placed to articulate the changing role of the law, from a discourse that derives its authority from the free will of subjects, to a system of social regulation that engages in consultation exercises to rubber-stamp its regulative system. A recent example is the imposition of the curfew upon young people on a Glasgow housing estate. The curfew was the 'proposal' of a people's jury of respectable citizens, who were of course, wholly uninfluenced by the fact that the Glasgow police have been lobbying for a curfew for years. But more to the point, what was in fact an incursion on the rights of young people could be dressed up as an exercise in freedom instead of an authoritarian extension of state power. The authority of this citizen's jury is entirely artificial, having no representative power or mandate from the local community, but it is 'consultation' all the same.

Habermas affects to worry that this kind of quasi-legal social regulation is an incursion upon rights, but his purpose is only to undermine the case against. He has defined rights in such a mealy-mouthed way that he can readily demonstrate the democratic case for immigration controls (p165) and the war against Iraq (p444). In particular he leans on the idea of the 'security state', quoting Erhard Denninger to say that 'a society produces so many security risks that it is able to protect threatened constitutional values only by considerably expanding the surveillance apparatus'.

In Germany where the traditional justification of the security forces has been undermined by the role of the secret police under the Nazis, there is a decidedly post-traditional renaming of the security forces as the Office for the Protection of the Constitution. But what exactly is it that makes the German state so insecure that it demands these special measures to defend its constitution? Successively, the constitution has been defended against East Germany's Romeo spies, a handful of skinheads who are laughably denounced as a return to the Third Reich, and Kurdish asylum-seekers. One could be forgiven for thinking that it wasn't a very robust constitution.

At the core of the legal activism that Habermas and Unger champion is not an extension of individual rights or popular sovereignty, but the extension of a kind of legalistic framework for regulating society. Interestingly, this is not a case for the extension of the law - at least not extension of a law based on freedom of choice or popular sovereignty - but for a quasi-legal system of public administration by lawyers and civil servants. Chillingly Habermas insists that the problem with these new forms of social regulation is not they are anti-democratic or unaccountable, but only that they are 'insufficiently institutionalised'.

Read On

  • The Peopling Of Africa: A Geographic Interpretation
    James L Newman, Yale University Press, £10 pbk

This fascinating book sacrifices a lot of politically correct sacred cows, especially the one that sees African heritage as entirely separate from the rest of human culture. Starting from the very beginnings of mankind three million years ago, and using linguistic tracing techniques as well as the fossil record, Newman shows that there is no unique African culture to speak of. Foodstuffs like the banana and the cassava came from Asia and Latin America; the counterweighted lift-bucket, or shaduf, vital for the irrigation of the Nile valley also came from Asia, as did the camel; finally, the Phoenicians introduced iron-smelting during the first half of the last millennium BC.

Iron-making eventually trickled down from north Africa and enabled the Bantu, a small group originally from present-day Cameroon, to fan out and influence almost the whole of central and southern Africa. Newman makes the point that blacksmiths were 'frequently the featured actors in creation myths, and thus we can hypo- thesise that at least a few ethnolinguistic identities crystallised around them' (p109). Later on, slaving by the Arabs and then by the Europeans also helped to form ethnic groups among the then disparate primitive communities that populated the continent. The presence of slavers acted as a stimulus to tie people to definite areas either as a measure of defence, or to derive material benefit from slaves passing through those territories. Hence, in the Congo valley during the seventeenth century, the Likuba, the Likwala and the Bonga 'were formed of peoples ban-ding together to secure tributary routes to slave sources' (p152). Yet, outside of Egypt, itself at the confluence of three continents, no African polity formed that made a significant impact on the world before the coming of colonialism. But there were precious few embryonic Romes and Athens in Africa because of the limited nature of external contacts with the continent, not because of any supposed African character as such.

Primitive communities, not ethnic communities, best describe pre-colonial Africa. This is because the concept ethnic erroneously puts the stress upon heritage as the defining feature of those societies. Newman's deduction that 'cultural identity is much more a function of life-style than genealogy' (p174) sounds like ancient Africans making modern lifestyle choices. The best point that can be drawn from The Peopling of Africa, though, is that 'ethnic heritage' is the product of external influence impacting upon primitive societies open to what the rest of humanity has to offer.

Aidan Campbell

Reproduced from LM issue 106, December 1997/January 1998



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