Diversity and unity: The problem with 'constitutional patriotism'

European Journal of Political Theory

Volumn 6, Issue 4, 2007, Pages 483-503

  Baumeister, Andrea ^a  

^a UNIVERSITY OF STIRLING   (United Kingdom)

Author keywords

Citizenship; Constitutional patriotism; Cultural diversity; Habermas

Indexed keywords

EID: 38849126245     PISSN: 14748851     EISSN: None     Source Type: Journal    
DOI: 10.1177/1474885107080652     Document Type: Conference Paper

References (73)

1. J. Habermas (1998) 'The European Nation State: On the Past and Future of Sovereignty and Citizenship', Public Culture 10(2): 397-416, 404.
2. Ibid. pp. 405-6.
3. Ibid. p. 407.
4. Habermas first formulated the concept of constitutional patriotism in response to debates surrounding German national identity in the wake of German reunification. Given German history, Habermas argues that a modern German identity must be based on respect for the constitution and the fundamental democratic rights safeguarded therein rather than any appeal to ethnic nationhood. Consequently, for Habermas the incorporation of the East German states into the Federal Republic is best seen as the restoration of democracy and a constitutional state rather than the reunification of a prepolitical community with a shared history and destiny. For a discussion of German reunification and the Historikerstreit (historians' dispute) see J. Habermas (1989) 'Historical Consciousness and Post-Traditional Identity: The Federal Republic's Orientation to the West', in The New Conservatism, ed. and tr. Nicholsen, pp. 249-67. Cambridge, MA: MIT Press. In his later work Habermas contends that all modern constitutional states must move towards a constitutional patriotism, if they are to respond adequately to the challenges posed by demands for recognition on the part of traditionally marginalized group. See for example Habermas (n. 1).
5. Habermas (n. 4), pp. 261-2 and 257.
6. J. Habermas (2001) 'The Postnational Constellation and the Future of Democracy', in The Postnational Constellation Political Essays, tr. and ed. Max Pensky, pp. 58-112. Cambridge: Polity Press.
7. Habermas (n. 1), p. 408.
8. Ibid.
9. J. Habermas (1996) Between Facts and Norms, p. 500. Cambridge, MA: MIT Press.
10. Habermas in J.P. Arnason (2000) 'Globalism, Ideology and Traditions: Interview with Jürgen Habermas', Thesis Eleven 63 (Nov.): 1-10, p. 4.
11. For a discussion of this line of criticism see A. Ingram (1996) 'Constitutional Patriotism', Philosophy and Social Criticism 22(6): 1-18. B. Yack (1996) 'The Myth of the Civic Nation', Critical Review 10(2): 193-211. P. Markell (2000) 'Making Affect Safe for Democracy? On "Constitutional Patriotism"', Political Theory 20(1): 39-63.
12. J. Habermas (1993) 'Struggles for Recognition in Constitutional States', European Journal of Philosophy 1(2): 128-55, p. 138.
13. Ethical-political questions address the community's shared form of life and ideals that members feel should shape their common life, while pragmatic questions assess the consequences of particular actions and seek to establish the best strategy for attaining our ends. Habermas distinguishes (n. 9) ethical-political discourses from moral discourses. Whereas moral discourses aim at a universal and impartial point of view, ethical-political discourses express the authentic self-understanding of a particular community. Thus while moral discourse encompasses all of humanity and seeks to establish norms that are in the equal interest of all, ethical-political discourse takes place among the members of a specific political community. Consequently the discourse principle, which demands that only 'those action norms are valid to which all possibly affected persons could agree as participants in rational discourse', merely takes the form of a universalization principle in relation to moral norms (Habermas [n. 9], p. 107). As the expression of a particular form of life, the formation of political will, on the other hand, is shaped by ethical and pragmatic as well as moral reasons and consequently is always tied to specific and contingent contexts. However the distinctive political identity of a particular state must not violate the demands of moral discourse. Not only must every constitutional state ensure that the human rights of all citizens are protected, it must also strive to be neutral between various conceptions of the good and the different sociocultural subgroups within the state.
14. Markell (n. 11).
15. According to Habermas (cited in T. McCarthy [1986] 'Translator's Introduction', in J. Habermas, The Theory of Communicative Action, pp. vii-xxxix, p. xxvi. Cambridge: Polity Press) the 'lifeworld constitutes a culturally transmitted and linguistically organised stock of interpretive patterns'. The implicit knowledge inherent in the lifeworld provides actors with a set of unproblematic background convictions 'upon which they draw in the negotiation of common definitions of situations' (ibid. p. xxvi). While actors can reflect upon and criticize particular aspects of their lifeworld, they cannot step outside it.
16. J. Habermas (1986/1987) The Theory of Communicative Action, tr. T. McCarthy, vol. 1 1986, vol. 2 1987. Cambridge: Polity Press.
17. While at one level these two forms of rationality are complementary developments, 'in other respects they are counteracting tendencies' (ibid. vol. 1, p. 341). For Habermas the 'discontents of modernity are not rooted in rationalization as such, but in the failure to develop and institutionalize all the different dimensions of reason in a balanced way' (McCarthy [n. 15], p. xxix). In the absence of institutions that protect the lifeworld, the reifying dynamics of economic and administrative subsystems have increasingly marginalized communicatively structured interaction. To stem this process does not entail insulating the lifeworld from the processes of modernization, but requires the expansion of communicative rationality. The communicatively rationalized lifeworld therefore has to develop institutions that limit and subordinate the subsystems of power and money. Habermas (n. 16) identifies a number of potentials for protest that challenge the influence of the subsystems of power and money. According to Habermas (n. 16), vol. 2, p. 392, advanced western societies have seen a shift away from 'the welfare state pattern of institutionalised conflict over distribution' to conflicts in the areas of 'cultural reproduction, of social integration and socialisation'. These new conflicts do not focus on economic compensation, but seek to protect or restore endangered ways of life or aim to establish reformed ways of life. The underlying deficits in these conflicts 'reflect a reification of communicatively structured domains of action that will not respond to the media of power and money' (ibid.). Such protests can be sources of emancipation and resistance. Habermas (ibid.) discusses developments such as the ecology, antinuclear, peace and women's movements, but the contemporary politics of recognition can be seen as a part of this wider phenomenon of protest.
18. Habermas (n. 15), vol. 1.
19. Ibid. p. 340.
20. Ibid. p. 341.
21. M. Pensky (2000) 'Cosmopolitanism and the Solidarity Problem: Habermas on National and Cultural Identities', Constellations 7(1): 64-79.
22. Habermas (n. 6), p. 74. Habermas makes an intriguing link between his modernization thesis and individual moral development in (1990) Moral Consciousness and Communicative Action. Cambridge: Polity Press. Here he (p. 117) contends that Lawrence Kohlberg's:
23. ... theory of moral development offers the possibility of (a) reducing the empirical diversity of existing moral views to variation in the contents, in contrast to the universal forms, of moral judgement and (b) explaining the remaining structural differences between moralities as differences in the state of development of the capacity for moral judgement.
24. Drawing on Kohlberg's work, Habermas (ibid. p. 177) argues that, if successful, individual moral development will give rise to a principled morality that 'robs the social world, with its legitimately ordered interpersonal relations, of its natural stability and compels it to justify itself'. The establishment of such a principled morality goes hand in hand with the differentiation between moral questions and evaluative questions. While moral questions can in principle be rationally decided by an appeal to justice or the universalizability of interests, evaluative questions refer to questions of the good life and 'are accessible to rational discussion only within the horizon of a concrete historical form of life or an individual life style' (ibid. p. 178).
25. Habermas (n. 9), p. 165.
26. J. Habermas (1996) 'Reply to Symposium Participants, Benjamin N. Cardozo School of Law', Cardozo Law Review 17(4-5): 1477-1557.
27. Habermas (n. 9), p. 166.
28. T. McCarthy (1996) 'Legitimacy and Diversity: Dialectical Reflections on Analytical Distinctions', Cardozo Law Review 17(4-5): 1081-1125, p. 1086.
29. Habermas cited ibid. p. 1103.
30. 28. Habermas (n. 24). In terms of moral discourse majority decisions are interim results in the search for impartial, universally valid norms, whereas in ethical discourses they constitute steps in the search for an all-encompassing political culture and a common form of life.
31. According to Cooke, Habermas here 'draws attention to the important difference between the form of coercion involved in the exercise of power within the framework of democratic laws and that which is involved wherever this framework is not presumed'. M. Cooke (1999) 'Are Ethical Conflicts Irreconcilable?', in I. MacKenzie and S. O'Neill (eds) Reconstituting Social Criticism, pp. 117-89, p. 178. Houndsmill: Macmillan Press. This is not to suggest that Habermas fails to recognize that democratic decision-making involves coercion. Hence, as Cooke notes, the worry, expressed by Mansbridge and Cornell, that Habermas denies the moment of coercion, is unfounded. J. Mansbridge (1994) 'Using Power/Fighting Power', Constellations 1(1): 53-73. D. Cornell (1995) 'Response to Thomas McCarthy: The Political Alliance between Ethical Feminism and Kantian Constructivism', Constellation 2(20): 189-206.
32. Habermas (n. 24), p. 1493. Indeed, according to Habermas (ibid. pp. 1492-3), 'if essentially relevant value conflicts and oppositions must penetrate all controversial political questions, then in the final analysis we end up with something resembling Carl Schmitt's understanding of politics'. Hence for Habermas democratic legitimacy is only possible if we assume that questions of justice can transcend the ethical self-understanding of competing forms of life.
33. Habermas (n. 1), p. 408.
34. According to Habermas:
35. ... several different routes to the elusive goal of a 'difference sensitive' inclusion are ... available: Federalist delegation of powers, a functionally specified transfer or decentralisation of state competencies, above all guarantees of cultural autonomy, group specific rights, compensatory policies, and other arrangements for effectively protecting minorities.
36. (1998b) 'On the Relation between the Nation, the Rule of Law and Democracy', in The Inclusion of the Other, pp. 129-53, pp. 145-6. Cambridge, MA: MIT Press.
37. On Habermas's account the cultural rights of immigrants are akin to those of 'born' ethnic, cultural and national minorities. For Habermas (n. 12) cultural rights are only legitimate when exercised as individual liberties. While the state should ensure that individual members of minority groups are able to pursue their way of life, it should not seek to preserve cultures in the same way in which we may attempt to preserve endangered species. Indeed he is very critical of the demands by some natural born minorities for corporate group rights designed to maintain and perpetuate their particular way of life. According to Habermas, policies, such as the Quebec language laws, which specifically seek to socialize future citizens into the language, value and norms definitive of a particular culture extend well beyond what can be justified in terms of the provision of meaningful cultural choices for individuals.
38. J. Habermas (1992) 'Citizenship and National Identity: Some Reflections on the Future of Europe', Praxis International 12(1): 1-18.
39. According to Habermas (cited in Markell [n. 11], p. 52) an integrative force is prepolitical if it is 'independent of and prior to the political opinion- and will-formation of the citizens themselves'.
40. Markell (n. 11), p. 52.
41. R. Scruton (1990) 'In Defence of the Nation', in J.C.D. Clark (ed.) Ideas and Politics in Modern Britain, pp. 53-86, p. 80. Houndmills: Macmillian.
42. Yack (n. 11), p. 197.
43. R. Bellamy (2000) 'Citizenship beyond the Nation State: The Case for Europe', in N. O'Sullivan (ed.) Political Theory in Transition, pp. 91-112, p. 100. London: Routledge.
44. It is, of course, a concern with these forms of discrimination which leads Habermas to argue for the need to decouple the majority culture from the wider political culture. However, if the political culture itself is already shaped by the majority culture, decoupling will not address these concerns. Indeed, a sharp distinction between political and cultural integration may make it more difficult to identify and raise awareness of the more subtle ways in which the assumptions and prejudices that underpin the political culture marginalize the concerns of minority communities.
45. Bellamy (n. 39).
46. Markell (n. 11), p. 40.
47. Habermas (n. 12), p. 143.
48. McCarthy (n. 26), p. 115.
49. Habermas (n. 12), pp. 143-4.
50. J. Habermas (2003) 'Intolerance and Discrimination', International Journal of Constitutional Law 1(1): 2-12, p. 6.
51. J. Habermas (2004) 'Religious Tolerance: The Pacemaker for Cultural Rights', Philosophy 79(1): 5-18.
52. J. Habermas (2006) 'Religion in the Public Sphere', European Journal of Philosophy 14(1): 1-25, pp. 8-10.
53. By implication those claims and demands that cannot be 'translated' cannot influence formal political processes. According to Habermas the liberal state must remain neutral vis-̀-vis conceptions of the good and therefore cannot tolerate religious justifications in the legislative process itself. However, the liberal state cannot oblige them 'personally to supplement their public statements of religious convictions by equivalents in a generally accessible language' (ibid. p. 9). Instead Habermas conceives of the translation proviso as a cooperative process that requires secular citizens to 'take part in the efforts to translate relevant contributions from the religious language into a publicly accessible language' and thus insists that such a proviso does not place an undue or asymmetrical burden upon citizens who hold strong religious convictions. J. Habermas (2005) 'Equal Treatment of Cultures and the Limits of Postmodern Liberalism', Journal of Political Philosophy 12(1): 1-28, p. 28. However, as Habermas himself recognizes, the 'secular citizen with limited metaphysical baggage, who can accept a morally "free-standing" justification of democracy and human rights' can easily recognize that the 'right' enjoys priority over the 'good' (ibid. p. 27). As a consequence secular citizens are arguably liable to find the demand to be respectful and sensitive to the truth potential of religious worldviews easier to bear than the burdens the institutional translation proviso places upon religious citizens.
54. Ibid.
55. Habermas (n. 47), p. 7.
56. Habermas takes the notion of the normative frame of the liberal state as a 'module' from Rawls. Indeed, Habermas's notion of a civic sense of the nation in many ways mirrors Rawls's notion of political liberalism and the difficulties that Habermas encounters are akin to those facing Rawls. While Rawls maintains that his conception of political liberalism will gain the endorsement of, or at least will be compatible with, all reasonable doctrines, numerous critics have been quick to point out that far from providing a basis for an overlapping consensus that can encompass citizens with highly diverse conceptions of the good, political liberalism privileges liberal principles at the expense of worldviews and ways of life that challenge Rawls's sharp public-private distinction. Ultimately, Rawls's distinction between political and comprehensive liberalism rests upon a sharp differentiation between the political and the non-political, which ignores the complex interrelationship between the two spheres. For an overview of a range of critical perspectives on Rawls's conception of political liberalism see A. Baumeister (2000) Liberalism and the Politics of Difference. Edinburgh: Edinburgh University Press.
57. Habermas (n. 49), pp. 10-13.
58. R.J. Bernstein (1996) 'The Retrieval of the Democratic Ethos', Cardoso Law Review 17(4-5): 1127-46, p. 1143.
59. Habermas (n. 46), p. 7.
60. Since on Habermas's account the basic rights and benefits associated with citizenship are derived from the application of universal norms, these rights and benefits must apply to all citizens equally.
61. On Habermas's own understanding of the complex relationship between individual liberty and democracy this exclusion may have far-reaching implications for the standing of such citizens. Given that persons are individuated through the processes of socialization, Habermas maintains that the capacity of individuals to pursue their chosen way of life can only be effectively safeguarded if the context within which an individual's identity is formulated is also protected. This can only be achieved if all citizens participate in the formulation and interpretation of the rights and norms that safeguard individual freedom. If the ethical commitments of citizens who subscribe to non- autonomy-valuing lifestyles are not allowed to shape democratic discourse, the rights and norms derived from such discourses are unlikely to support the wider life context within which their identities have been formulated. This may make it difficult for such citizens to even pursue their chosen way of life in the private sphere.
62. M. Cooke (1997) 'Authenticity and Autonomy: Taylor, Habermas, and the Politics of Recognition', Political Theory 25(2): 258-88.
63. Habermas (n. 4), p. 257.
64. This suggests that the wider worries expressed by many generally sympathetic commentators regarding Habermas's continued preoccupation with consensus are justified. See e.g. Bernstein (n. 54). J. Bohman (1995) 'Public Reason and Cultural Pluralism. Political Liberalism and the Problem of Moral Conflict', Political Theory 23(2): 253-79. J. Bohman (1996) Public Deliberation Pluralism, Complexity and Democracy. Cambridge, MA: MIT Press. S. Chambers (1995) 'Discourse and Democratic Practice', in S.K. White (ed.) The Cambridge Companion to Habermas, pp. 233-59. Cambridge: Cambridge University Press. S. Chambers (1996) Reasonable Democracy: Jürgen Habermas and the Politics of Discourse. Ithaca, NY: Cornell University Press. J. Dryzek (2000) Deliberative Democracy and Beyond: Liberals, Critics, Contestations. Oxford: Oxford University Press. N. Fraser (1992) 'Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy', in C. Calhoun (ed.) Habermas and the Public Sphere, pp. 119-42. Cambridge, MA: MIT. McCarthy (n. 26). W. Rehg and J. Bohman (1996) 'Discourse and Democracy: The Formal and Informal Bases of Legitimacy in Habermas' Fatizität und Geltung', Journal of Political Philosophy 1: 79-99.
65. See e.g. Yack (n. 11).
66. Ibid. p. 208.
67. E.g. S. Hampshire (1999) Justice is Conflict. London: Duckworth. R. Bellamy (1999) Liberalism and Pluralism. London: Routledge. J. Gray (2000) Two Faces of Liberalism. Cambridge, MA: Polity Press. B. Parekh (2000) Rethinking Multiculturalism. London: Macmillan Press.
68. Habermas (n. 24), for instance, argues that, in the absence of a search for rational agreement, political disputes will be reduced to a purely strategic struggle for power. While such worries cannot be easily dismissed, advocates of 'thin' procedural models have begun to develop innovative procedures and institutional models that seek to ensure that the majority and minority can participate in dialogue and political negotiation on equal terms, encourage both the majority and the minority to reflect upon existing norms and practices, and promote mutual adaptation and a search for common ground. I have explored a potentially promising model in a previous paper. A. Baumeister (2003) 'Habermas: Discourse and Cultural Diversity', Political Studies 51(4): 740-58
69. Such as Jean Hampton (1986) Hobbes and the Social Contract Tradition. Cambridge: Cambridge University Press.
70. M. Canovan (1996) Nationhood and Political Theory, p. 86. Cheltenham: Edward Elgar.
71. Habermas (n. 6).
72. Habermas (n. 1), p. 407.
73. Quong e.g. argues that the imposition of such an education may well infringe the general right of parents to make educational choices for their children, but concludes that such an infringement is justified in order to secure the long-term stability of liberal democratic regimes. J. Quong (2004) 'The Rights of Unreasonable Citizens', Journal of Political Philosopy 12(3): 314-35. However, the degree to which such measures will indeed promote long-term stability will in practice depend upon the way in which citizens respond to such infringements of their rights.