Jürgen Habermas: Modern social theory as postmetaphysical natural law

Modernity and the two traditions of natural law

Natural law is a long-standing philosophical tradition in the West that needs to be traced back before the rise of modernity. ² Habermas accepts that it is a highly heterogeneous doctrine whose fundamental split is that between traditional natural law (in its Greek, Roman and Christian variants) and modern or rational natural law – which he sees as having evolved from Hobbes to Hegel via Rousseau and Kant (Habermas, 1996: 43–44). In the context of a recent discussion about the idea of human dignity, for instance, Habermas elaborates on this distinction by arguing that while traditional natural law had a strong sense of the universality of the human species, it missed the idea of the individual as an inviolable moral agent. Traditional natural law

… developed well a collective notion of dignitas humana, but it was explained in terms of a distinguished ontological status of human beings in the cosmos. … The superior value of the species might have justified some kind of species protection but not the inviolability of the dignity of the human person as a source of normative claims. … the relative superiority of humanity and its members must be replaced by the absolute worth of any person. The issue is the unique worth of each person.

This argument on the importance of individuality is something that Habermas has arguably inherited from Kant’s (1997) natural law theory. After the categorical imperative, individual human beings are moral agents for whom the rational acceptability of moral propositions is ultimately nondelegable. Only affected parties themselves can give assent to those decisions that directly affect their courses of action while, in turn, the justifications they give must rise above subjective preferences and be able to carry potential universal agreement. Normative claims in modernity are pulled in two different and often conflicting directions. They are valid ‘objectively’ insofar as they ought to be able to achieve general acceptance, but they must also and simultaneously be found acceptable ‘subjectively’ by individuals themselves in their particular sociocultural lifeworlds. Valid moral norms equally presuppose the universality of the human species as a whole and the particular living conditions of individual human beings. Traditional natural law has tended to emphasize the former – hence its conservative intimations – while social theory has concentrated on the latter – hence its relativistic tendencies. Quite rightly, Habermas rejects both extremes and seeks to make both subjective and objective claims work together.

Habermas’s most explicit account of the role of modern natural law in the rise of modernity is found in his early ‘Natural Law and Revolution’ from 1963. This essay explicates the role of natural law during the American and French revolutions of the late eighteenth century: that is, in the context of the inauguration of political modernity. It is an interrogation into the role of natural law in modernity’s foundational act of normative self-constitution. In terms of the internal development of Habermas’s thinking, moreover, it anticipates some of his later engagement with natural law in the first part of Between Facts and Norms.

It is the immanentist orientation of rational natural law that lends itself to the kind of transformative politics that inaugurate modernity. We witness an important change in the way in which natural law arguments started to be used at the time: ‘The appeal to classical Natural Law [Naturrecht] was not as revolutionary as the appeal to modern Natural Law has come to be’ (Habermas, 1974: 83, my italics). We are in the presence of an intellectual tradition whose normative content could somehow be turned upside down: what was previously used to defend the old status quo could now be used to promote social change. At the onset of political modernity, then, both the American and French revolutionary movements appealed to natural law as they sought to give centrality to an idea of fundamental rights: ‘… the act by which the positivization of Natural Rights [Naturrecht] was initiated, in America as well as in France, was a declaration of fundamental rights’ (Habermas, 1974: 85). ⁴

The importance of the two declarations can hardly be exaggerated – Habermas’s own later interest in the key position of constitutional texts in the moral and political self-understanding of modern political communities highlights the role of foundational principles in modern constitutions (Habermas 2001b). But in this early piece Habermas emphasizes also the differences in how both declarations were construed and justified. Their comparison makes apparent a fundamental ambivalence in the role of natural law arguments in modernity. Thus, although in ‘both cases a constitution is set up which remains within the framework of the declared fundamental rights’, they are in fact in pursuit of rather different political goals: ‘With their recourse to the Rights of Man, the American colonists want to legitimize their independence from the British Empire; the French to legitimize the overthrow of the ancient regime’ (Habermas, 1974: 87,). The different roles of the declarations of fundamental rights are exemplified further by the position they occupy in their respective texts: while the declaration of rights precedes ‘the French Constitution as a preamble’, it is ‘merely attached to the American Constitution as amendments’. As the American Bill of Rights provides ‘another basis of legitimation for the traditional substance of rights; the French declaration, in contrast, is intended to assert positively for the first time a fundamentally new system of rights’ (Habermas, 1974: 87).

Habermas argues that in the American tradition natural law is conceived in a fundamentally naturalistic fashion. Natural law ought to restore a sense of natural justice that now appeared under threat because of the violation of traditional values, practices and institutions. The principles to which the American Revolution appealed were the original ‘rights of man’: that is, anthropologically grounded ideas of human nature such as the need for self-defence and private property. For the founding figures of the American revolution, ‘the rights of man coincide with the principles of society under the common name of Laws of Nature’ and therefore the ‘positivization of Natural Law is not a matter of revolution’ (Habermas, 1974: 95). Habermas calls this the liberal understanding of natural law because it is based on the idea of negative freedom – the state’s main function is to prevent individuals from infringing upon each other’s private spheres of action: ‘Natural rights will find their reliable counterpart in the laws of trade and commerce, but these laws are obeyed by private persons because this is immediately in their interest and not because the state imposes formal laws under the threat of punishment’ (Habermas, 1974: 95).

Yet the appeals to natural law during the French Revolution are of a different kind because there the declaration did not take ‘the form of a deduction from principles, for a right was the result of a contract and not a principle from which true statements could be deduced’ (Habermas, 1974: 96, my italics). Crucially, Habermas claims that these participatory features are key to account for the political role of natural law arguments in eighteenth-century France:

Freedom and equality, and in consequence also life, security and happiness, these citizens do not owe to the automatism, secured by private law, of either natural rights or social intercourse based in nature. Rather, that these principles of freedom and equality cannot be violated is based solely on the structure of the volonté générale, although this will as the pouvoir souverain is free to enact whatever laws it likes – as long as they are laws.

In this formulation, the definition and later implementation of newly established fundamental rights is only to be attempted in participatory, if not necessarily democratic, fashion. The twin principles of the general will and popular sovereignty can only be carried out as political acts: ‘… the social contract requires denaturing an original natural existence to make it a moral one; the contract is a moral one’ (Habermas, 1974: 106). To be sure, we witness this distinction between a ‘natural’ and a ‘social’ version of natural law in different variations: liberal and republican, individualistic and communitarian, and in ideas of negative and positive liberty. But we are well advised to look at them in ideal-typical fashion rather than as the autonomous evolution of two different philosophies of natural law, or indeed as an empirical account of the actual implementation of political principles (Wellmer, 1998). All conceptions of modern natural law, from Hobbes to Hegel via Kant and Rousseau, have had to deal with the dual, natural and social, foundation of our shared humanity as the basis for the question of how is modern social order possible (Chernilo, 2013). At the same time, however, a major tension of modern political thought is now made apparent: the radically democratic principle that does not accept external limitations to the outcome of free political deliberations can only be implemented if and when individuals are conceived of as bearers of fundamental and inviolable rights whose origins are in fact prepolitical and cannot be discretionarily modified by the legislator. Even as these fundamental rights appear as natural rather than socially constructed, they nonetheless remain socially rather than naturally actualized.

This reconstruction of natural law in the 1960s has since become the basis of Habermas’s legal theory as developed in Between Facts and Norms. There, Habermas takes up again the idea of two separate strands of modern or rational natural law. The first emphasizes the intrinsic prepolitical qualities of certain natural rights that all individual human beings possess qua individual human beings. This liberal understanding of natural law takes human rights as its centre and ascertains that the main role of the state is that of securing these basic rights. The second strand centres on the idea of the people as a politically constituted community through an imaginary yet voluntary contract. This republican version of natural law coheres on the notion of popular sovereignty, and the state is now in charge of fostering political participation on an equal legal footing. Both strands are equally important in Habermas’s justification of the co-originality of human rights and popular sovereignty in modernity’s normative self-understanding: ‘The two ideas of human right and popular sovereignty have determined the normative self-understanding of constitutional democracy up to the present day’ (Habermas, 1996: 94). However far the process of de-traditionalization of modern societies has moved on, it is still the case that two of the most fundamental principles of normative self-understanding in modernity remain deeply embedded in these variants of modern natural law:

… human rights and the principle of popular sovereignty still constitute the sole ideas that can justify modern law. These two ideas represent the precipitate left behind, so to speak, once the normative substance of an ethos embedded in religious and metaphysical traditions has been forced through the filter of posttraditional justification.

There are thus two co-original forms of modern natural law that emerge out of different understandings of how modern social life is to be justified normatively. Their co-originality in modernity is in one sense historical, as their articulation can be dated roughly at the same time during the American and French Revolutions by the end of the eighteenth century. But to this historical claim Habermas now adds the proposition that they are conceptually and normatively co-dependent. The organization of modern political communities presupposes equally human rights and popular sovereignty – not least because the idea of the modern individual requires that we conceptualize private and public autonomy as coterminous: neither form of autonomy should act as a model for, nor be subordinated to, the other (Habermas, 1996: 104). ⁵ Yet after having ascertained their co-originality and co-dependence, problems arise in fully accounting for this strong thesis (Specter, 2010: 175–179). According strictly equal status to human rights and popular sovereignty creates the difficulty of how to explain the socio-historically (immanent) origins of human rights human rights in relation to their appeal to (transcendental) normative validity. As Habermas does not want to get caught in the purely objectivistic mode of argumentation of traditional natural law, which would allow for a ‘firm’ justification for human rights only at the price of their being introduced externally under unacceptable metaphysical terms, then the legitimacy of human rights can lie only internally: that is, in individuals mutually granting each other these rights communicatively in an open and non-coercive manner. In Between Facts and Norms, this tension is introduced thus:

The scope of citizens’ public autonomy is not restricted by natural or moral rights just waiting to be put into effect, nor is the individual’s private autonomy merely instrumentalized for the purposes of popular sovereignty. Nothing is given prior to the citizen’s practice of self-determination other than the discourse principle, which is built into the conditions of communicative association in general, and the legal medium as such.

We will leave until the final section of this article the discussion of what this ‘other than the discourse principle’ actually entails; now, I should like briefly to explain this tension further in relation to the discussion on human dignity we have already mentioned. Human dignity can become the core of modern human rights, argues Habermas, because of its thick normative appeal. But human dignity must remain grounded on the principle of popular sovereignty because it is never fully independent from what individuals, as citizens, make of it in political discourse:

As a modern legal concept, human dignity is associated with the status that citizens assume in the self-created political order. As addressees, citizens can come to enjoy the rights that protect their human dignity only by first uniting as authors of the democratic undertaking of establishing and maintaining a political order based on human rights.

The key challenge is now fully apparent. Human rights need to be, simultaneously, presupposed as the basis of our mutual recognition of human beings as bearers of a universal dignity and justified as the outcome of a democratically organized political community. However, it is still unclear how this can actually be accomplished: either human rights are universal in a strong sense, in which case they remain at least partly independent from popular sovereignty and their justifications can be deemed problematic in the sense of falling below the threshold of democratic (and indeed postmetaphysical) justifications; or, conversely, human rights are always dependent on popular sovereignty, in which case we need to remain open to the possibility at least of public deliberation arriving at a different outcome about their normative status – for instance, in terms of temporary restrictions to civil or political rights in times of crises. Historically as well as analytically, according strictly equal weight to both human rights and popular sovereignty remains necessary and contentious. To be sure, there is more than a question about internal consistency at stake here. Universalism remains the condition of possibility of modern normative thinking via its twin notions of human rights and popular sovereignty. We expect our moral thinking (and to a large extent also legal norms) to be objectively valid and subjectively acceptable. Habermas’s reconstruction of modern natural law via its liberal and republican strands creates a framework within which it becomes possible to reflect more clearly about human rights and popular sovereignty, but, even if unintentionally, it simultaneously reinforces their treatment as mutually opposed.

Sociology and the problem of the normative in modernity

The depth and breadth of Habermas’s intellectual project defies single disciplinary identifications. Thus, while sociology is not the axis on which Habermas’s intellectual project ultimately coheres, a fundamental insight of his engagement with the sociological tradition is that of making explicit its interconnections with modern natural law.

In Theory of Communicative Action, Habermas (1984a, 1987) turns explicitly to sociology as the discipline that offers the most systematic attempt to combine empirical description, theoretical explanation and normative critique of modern social life. This is somewhat a rupture from what he had done before, as philosophy and jurisprudence were his original disciplinary background and interests. Apart from one early article to be discussed below, up to the publication of Theory of Communicative Action in 1981 his engagement with sociology had remained relatively marginal. ⁶ Modelled as it is on Parsons’ early The Structure of Social Action (1968), as an account of the sociological tradition Theory of Communicative Action is a masterpiece in sociological theory in its somewhat strict disciplinary sense. Habermas’s key distinction of system and lifeworld, and the centrality he gives to the coordination of social action, are both fundamentally sociological; this is a general theory of modern society with a critical intent (Lafont, 2004). Understanding modernity requires us to address descriptive and normative tasks, and in Habermas’s view that is what makes sociology unique within the modern disciplines devoted to the study of social life: ‘… alone among the disciplines of social science, sociology has retained its relations to the problems of society as a whole. Whatever else it has become, it has always remained a theory of society as well’ (Habermas, 1984a: 5). Sociology emerged and has remained committed to keep hold of its scientific/explanatory and philosophical/normative dimensions. Both planes need to be kept analytically apart so that they can talk to and learn from each other. The philosophical underpinnings of this claim will be explicated in the next section when we discuss Habermas’s understanding of the postmetaphysical. Now I should like to focus on some implications of looking at the sociological tradition in this fashion.

Writing in the late 1990s, Habermas opens the central article of his essays on The Postnational Constellation with the claim that ‘sociology still has to come to terms with the disappointment over the impotence of the obligatory moment of natural law’. He partly explicates this by quoting approvingly from the work of German sociologist Siegfried Landshut, who, in his Kritik der Soziologie of 1929, had argued that ‘“[s]ociety” is nothing more than the title meant to encompass the tensions, contradictions, and ambiguities, that arise from the realization of the ideals of freedom and equality’ (Habermas, 2001a: 59). This is indeed consistent with what we have discussed so far: normative questions about human rights (equality) and popular sovereignty (freedom or autonomy) are central to the emergence of modern society and modern sociology. In Theory and Practice, Habermas had already argued that sociology’s key theorem of the social as an emergent ontological domain is itself deeply rooted in natural law; ‘society’ was then the name of

… the subject which organizes the interrelationships of human life as a whole. It can neither be understood as a government which sanctions a legal order … nor as that union of individuals themselves, which confronts the government as a contracting party.

The connections between sociology and natural law are in fact the starting point of an early article on ‘The Critical and Conservative Tasks of Sociology’. ⁷ Habermas begins his reconstruction with eighteenth-century Scottish moral philosophy and argues that this tradition saw as its main task to understand society’s current social issues in the context of long-term historical trends that were still being conceived as part of natural history. This proto-sociology sought to make recommendations to meet contemporary society’s most pressing issues; food-shortages, poverty and decaying moral values were to be addressed by promoting the further advancement of progressive social trends as well as by pushing for the conservative reinvigoration of traditional values and institutions. Stated as an intractable conflict between ‘authority and utility’, the creative solution that in Habermas’s view Adam Smith, Adam Ferguson and John Millar all shared was for sociology to take ‘only the party of natural history that society itself had discovered and conceptualized’ (Habermas, 1978: 292). In other words, while they supported the idea that the reorganization of society was necessary (thus embracing sociology’s critical tasks), the only grounds on which they found this was viable were those reforms that could be justified by a pre-reflexive recourse to tradition and past authority (thus making sociology also a conservative project). Scottish moral philosophers understood that the solution to human problems lay in human intervention in human affairs, but their deeper conception of human history was still that of natural history; sociology was in this regard simultaneously critical and conservative. ⁸

In the post-revolutionary context of nineteenth-century France, sociology could still be regarded as equally critical and conservative: ‘… sociology as a science of the crisis is then split from its inception. It has equally emerged from the spirit of the revolution as from the one of the restoration; each camp of the civil war claimed it for itself’ (Habermas, 1978: 295). Owing to the explicitly political character of both the Revolution and the Napoleonic restoration, social affairs could no longer be seen as part of natural history. Rather, from now on social life is regarded as the immanent result of social action itself. The challenge for the conservative position was to restore the legitimacy of a political regime which, although it saw itself as beyond the modern need for democratic legitimization, was now being forced to appeal for support to a reasoning public opinion. The difficulties for the progressive camp were equally vexing because, after the Terror, they had to demonstrate that a democratic republic was able to achieve a peaceful and stable reorganization of society. As it remained useful to both political camps, sociology continued to develop with this constitutive normative split at its core. ⁹

By the middle of the twentieth century, however, sociology had grown definitively sceptical of ‘the concept of a natural history of humanity that progresses towards its improvement which once’ had been its guiding principle (Habermas, 1978: 303-304). Key tendencies in contemporary sociology at the time such as positivism and technocratic decisionism shared the view that, in order to become fully modern and scientific, sociology must abandon all normative concerns. But the price for this (partial) gain in scientific credentials and technocratic use is a net loss in sociology’s ability to come to grips with normative problems. While eighteenth- and nineteenth-century sociology could be both critical and conservative, empiricist twentieth-century sociology can, in good consciousness, be neither. Yet sociology remains important to Habermas because it has the potential to overcome this neglect of the normative; sociology can become a fully fledged empirical social science, but one that also has the ability to carry out the tasks that philosophy can no longer pursue on its own. Sociology is particularly well suited for the empirical continuation of philosophical reflections about social life in general. It is on the basis of its early connections with the natural law tradition, Habermas contends, that contemporary sociology may still be able to handle the tensions between descriptive and normative planes in social inquiry. More precisely, the tensions between description and normativity become fully apparent precisely at the point when sociology and natural law come together – which, in turn, represents sociology at its best. In relation to modern conceptualizations of the law, for instance, Habermas prefers the sociologies of Weber and Parsons because, although in his view they ultimately fail to conceptualize adequately the double normative and descriptive side of modern law, they at least clearly see that both dimensions are equally important. Modern sociology is well equipped to capture this key aspect of modern law because of its systematic engagement with descriptive and normative questions

The ideas of a conscious organization and self-organization of the legal community – initially framed in the language of modern natural law – express an awareness of the ideal content of legal validity. To the extent that this awareness develops and the ideal content of law clashes with functional imperatives of the market economy and bureaucratic administration, the normative self-understanding of law provokes an empirical critique.

Contemporary sociology’s greatest strength lies in, and arguably depends upon, how it remains connected to natural law: Habermas wants to retain the descriptive and normative dimensions as distinct and yet equally crucial. The old conservative and critical tasks of sociology remain of relevance for contemporary sociology to the extent that it does not fall for the temptations to abandon normative challenges. In turn, this also demonstrates that normative reflections, informed as they are by empirical social science, are always provisional and create newer justificatory difficulties. Habermas has made the complicated relationships between description and normativity, between the critical and conservative challenges that arise out of modern sociological enquiry, essential to his own concerns. ¹⁰

Universalism and the postmetaphysical

This final section turns explicitly to Habermas’s arguments on the status of the postmetaphysical and the overall universalistic orientation of his thinking. A common feature of Habermas’s reading of other writers is bringing them to task for resorting back to the arguments and presuppositions that they criticize. ¹¹ The methodological point Habermas makes is that it is one thing for an author to claim to have definitively moved beyond, say, unwarranted metaphysics, and quite another for us to assess independently how successfully that task has actually been accomplished. Needless to say, this insight applies to Habermas himself. Reconstructing Habermas’s arguments on postmetaphysical thinking will thus allow us to reassess the universalistic thrust of his intellectual project.

There is a first, which we may call strong, version of Habermas’s argument on the postmetaphysical that centres on the paradigmatic shift from consciousness to language in twentieth-century philosophy. Best represented in the works of Kant (Habermas, 1990a: 1-20; 2003b: 83–112) and Husserl (Habermas, 2001c: 23–44), the modern metaphysical tradition centres on transcendental arguments that grow problematic because of their monological rather than intersubjective foundations. Additionally, at stake in this strong version is the critique of philosophy’s privileged cognitive status for setting up disputes among competing cognitive strategies. Indeed, both arguments are closely interrelated as the critique of the monological in favour of the intersubjective is based on and gives additional support to the critique of philosophy in the name of science. It is philosophy’s traditional role as the highest form of human knowledge that becomes fundamentally questioned: ‘Today, the illumination of common sense by philosophy can only be carried out according to criteria of validity that are no longer at the disposition of philosophy itself. Philosophy must operate under conditions of rationality that it has not chosen’ (Habermas, 1992a: 18). Philosophy’s claim to knowledge has lost its pride of place in relation to not only lay knowledge but also the empirical sciences. The traditional status of philosophy becomes actually dependent on an idea of scientific rationality which is centrally though not exclusively represented by the natural sciences. According to Habermas, then, the old

… emphatic concept of theory, which was supposed to render not only the human world but nature too intelligible in their internal structures, finally sees its decline under the premises of a postmetaphysical thinking that is dispassionate. Henceforth, it would be the procedural rationality of the scientific process that would decide whether or not a sentence has a truth-value in the first place. … philosophical thinking [has had to…] bow to the sciences’ claim to exemplary status.

For over a century now, philosophy has no longer been the primary source from which new knowledge about human and natural affairs emerges. In this strong argument on the postmetaphysical, then, philosophy has lost its position of privilege as the balance of intellectual power has already moved towards (natural) science. Metaphysics is here seen as a way of historically describing those philosophical justifications that we no longer find adequate; it is ‘the science of the universal, immutable, and necessary; the only equivalent left for this later on was a theory of consciousness that states the necessary subjective conditions for the objectivity of universal synthetic judgements a priori’ (Habermas, 1992a: 13). This is a strong argument because it equates modern philosophical knowledge with unwarranted metaphysics, and postmetaphysical becomes a way, if not of leaving previous forms of knowledge definitively behind, of at least offering a thoroughgoing critique of the philosophical tradition – at the level of both substantive contents and justificatory strategies. As transcendental (that is, teleological and theological) justification become untenable, it is now the procedural rationality of the scientific process that decides among competing knowledge claims. As we saw in the first section, however, Habermas has also argued that normatively meaningful discussions remain philosophically orientated and cannot sever all their links with previous natural law thinking. And it is also the case that the proceduralism that Habermas argues is central in contemporary postmetaphysical thinking is itself a philosophical result of previous ‘metaphysical’ thinking. Even if we accept as unproblematic the, by all means problematic, proposition that there is a scientific method that can be used as a proxy representation of procedural rationality, the fact remains that that the discovery (or invention) of such proceduralism was a fundamentally philosophical development (Chernilo, 2013).

But we also find a second or soft argument about the postmetaphysical in Habermas’s thinking. In this case, the ‘post’ signals an increased reflexivity towards the philosophical underpinnings of one’s own arguments. No intellectual tradition, no philosophical or scientific proposition, can nowadays simply presuppose the adequacy of its foundations and justificatory strategies – not least because the very standards of what constitute legitimate knowledge are themselves open to debate. At the same time, we are under the permanent intellectual obligation to reflect upon the surreptitious reintroduction of problematic presuppositions in our own arguments. ‘Under modern conditions’, Habermas now argues,

… there can be no metaphysical thinking in the strict sense but at most the reworking of metaphysical problems that have been transformed by the philosophy of consciousness. … In contrast one might insist … upon retaining the expression ‘metaphysics’ for every manner of working through metaphysical questions, or those directed to the totality of (hu)man and world.

In this softer version, then, metaphysics has a double meaning: it retains its negative connotations about the unwarranted presuppositions of the philosophy of consciousness, but in the affirmative it now points to questions that speak to the human condition as a universal problem. Postmetaphysical becomes the sublation of previous metaphysics, a new stage in which metaphysics is still problematic but is not flatly rejected; it no longer is the predominant or more advanced way of justifying human knowledge and yet it still has a role to play in helping us reflect on who we are as human beings. The contemporary role of philosophy lies in its ability to translate traditional ‘metaphysical’ concerns into the languages and justifications that are acceptable under modern conditions. While philosophy’s cognitive status has surely diminished, the question of metaphysics remains a crucial component of what the philosophical tradition can and ought to do for us in modernity:

Philosophy is supposed to make possible a life that is ‘conscious’ and ‘controlled’ in a nondisciplinary sense, through coming to a reflexive self-understanding. … Behind the verbal dispute over whether ‘metaphysics’ is still possible after Kant, there is concealed a substantial disagreement about the existence and extent of those old truths that are capable of being critically appropriated, as well as disagreement about the character of the change of meaning to which old truths are subjected when they are critically appropriated.

To be sure, the question of the empirical sciences carrying greater weight over against philosophical arguments is a theme that figures centrally in modern natural law and classical social theory alike. Habermas’s own early critique of positivism is in fact inspired by the idea of trying to recast the relationships between science and philosophy (instead of the former being hypostatized as a new first philosophy). ¹³ The danger is that without philosophy retaining some kind of centrality, we are left with no intellectual tools to address normative questions. The natural sciences are not the only legitimate model from which to understand our social experiences as human beings and, under postmetaphysical conditions, philosophy and the sciences can mutually learn from one another.

It was of course only through the so-called ‘linguistic turn’ of the 1970s, a process that culminated in the publication of Theory of Communicative Action in 1981, that Habermas found a wholly new frame within which to address the problem of the relationships between philosophy and the empirical sciences. Abandoning the paradigm of consciousness and replacing it with a linguistic one based on the idea of intersubjectivity allowed him to move from the transcendental conditions of experience of a knowing subject in general – a ‘metaphysical’ formulation – to the reconstruction of the universal structures of actual linguistic interactions – a postmetaphysical conceptualization of social relations that have to be studied empirically. One way of looking at this change is Habermas’s argument that the linguistic turn explicates how human communication is ‘always already’ particular and universal. All linguistic utterances are specific and context-dependent, while being simultaneously grounded on the universal possibility of redeeming problematic validity claims:

… validity claims are Janus-faced: as claims, they overshoot every context; at the same time, they must be both raised and accepted here and now if they are to support an agreement for effective coordination. … The universalistic meaning of the claimed validity exceeds all contexts, but only the local, binding act of acceptance enables validity claims to bear the burden of social context integration for a context-bound everyday practice.

Habermas construed his thesis of human language’s orientation to understanding as an empirical discovery based on the developments of relevant disciplines from linguistics and evolutionary psychology to pragmatism and sociology itself (Habermas, 2001c, 2002). However, the importance of this empirical discovery depends upon its universal status, descriptively – this is how human communication actually works – as well as normatively – certain values, practices and institutions are to be universally favoured because they allow for the expansion of communicative rationality as central to our human condition. This paradigmatic shift from consciousness to language is surely Habermas’s long-lasting contribution to modern social science and philosophy (Outhwaite, 1994). And yet for my argument here it does not fundamentally alter the picture we have drawn so far, as Habermas’s linguistic turn requires that his conception of human language and social interaction can count, equally and simultaneously, with philosophical and empirical backing. On the one hand, the attempt to connect the particular with the universal is something that Habermas inherits from natural law; on the other hand, the ways in which that connection can now be attempted have decidedly shifted in favour of empirical research. Differently put, the ‘discovery’ of human language’s orientation to understanding matters empirically as much as it does philosophically: it is metaphysical and postmetaphysical at the same time.

Similar to the tension we encountered above between the liberal and the republican versions of natural law, normative arguments with a universalistic intent need, simultaneously, find subjective agreement and be held as objectively valid. Habermas’s reworking of Kant’s categorical imperative arguably works in that direction by offering two principles that seek to retain the universalistic and procedural nature of Kant’s original formulation while unpacking its moment of subjective rational acceptability. The first universalization principle (U) states that a norm is valid if ‘[a]ll affected can accept the consequences and the side effects its general observance can be anticipated to have for the general satisfaction of everyone’s interests’ (Habermas, 1990a: 65). This is complemented by a second, discourse principle (D), which now explicitly centres on the communicative realization of moral reasoning as moral discourse: ‘only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse’ (Habermas, 1990a: 66, emphasis in original). More generally, Habermas (2003b: 85–87) transforms ‘Kant’s “ideas” of pure reason into “idealizing” presuppositions of communicative action’, whereby the idea of reason is transformed from ‘the highest court of appeal’ into ‘rational discourse as the unavoidable forum of possible justification’. This de-transcendentalization aims to leave the problems of Kant’s philosophy behind and Habermas claims that this is central to the paradigmatic shift that the linguistic turn effectuates: ‘The rigid “ideal” that was elevated to an otherworldly realm is set aflow in this-worldly operations; it is transposed from a transcendent state into a process of “immanent transcendence”’ (Habermas, 2003b: 92–93). In other words, previous transcendental arguments are now being reintroduced as ‘quasi-transcendental’: that is, as counterfactual pragmatic presuppositions. Whether this change is as radical as Habermas would like it to be remains, however, open to question – also in terms of his own account of his relationship with Kant:

According to Kant, rational beings think of themselves as agents acting on the basis of good reasons. With regard to moral action, they have an a priori knowledge of the possibility of actualizing the idea of freedom. In communicative action we also tacitly start with the assumption that all participants are accountable agents. It is simply part of the self-understanding of subjects acting communicatively that they take rationally motivated positions on claims to validity; agents mutually presuppose that they indeed do act based on rationally warrantable reasons.

The philosophical programme now depends on counterfactual pragmatic presuppositions that in the last instance are immanent but whose normative purchase is, however, partly transcendental. For both Kant and Habermas, the core of modern moral discourses lies more in their justificatory strategies than in their substantive content; the validity of particular contents depends on how they have been achieved procedurally. Yet the universality of the procedure itself becomes an act of deduction (transcendental in Kant, pragmatic in Habermas) instead of being a result of its own reflexive application. At the same time, although the procedure must remain open-ended, substantive decisions that would undermine its universality (human beings being treated as means rather than ends, to democratically decide on the suspension of democratic deliberation) are excluded by principle. This surely makes good pragmatic and indeed normative sense but remains problematic in philosophical terms. Habermas’s self-description of his intellectual project depends upon the distance between his own dialogical model and Kant’s ‘monological’ transcendentalism. The U principle explicitly opens moral decisions to all those potentially affected, but its emphasis on inclusivity was surely already built into Kant’s universalism. In relation to the D principle, it no doubt specifies the importance of collective decisions being the result of intersubjective deliberation, but no definitive argument has been given as to why intersubjective deliberation must always and necessarily be better equipped to arrive at sound moral decisions – not least in Habermas’s own account of the deficits of rationality in public deliberation (Habermas, 1989, 1996). It is one thing to claim that no moral deliberation is sound without the inclusion of all those affected, as stated in the D principle. Quite another is to derive from this that the correct justifications are inevitably to be found in and through public deliberation itself. ¹⁴

Conclusion

A strong universalistic orientation is what in my view makes Habermas’s work stand out over the past half a century. It is also a commitment to universalism that connects Habermas’s social theory with the natural law tradition. Coming to terms with natural law is, then, a task not only for the intellectual historian but for social theorists themselves. At its best, modern sociology is and must remain connected with its own normative foundations, and in turn this means a more thorough engagement with modern natural law. Historically, because early sociology arose in the context of, and also partly as a rupture from, previous natural law. Analytically, because sociology keeps reflecting on the nature of social life in general – the social as an emergent ontological domain. Normatively, because it allows sociology to transcend empirical description and try also to address fundamental human concerns. Habermas’s argument on postmetaphysical thinking needs, then, to be interpreted less as a claim on the definitive decline of metaphysics and more as a way in which philosophical and normative questions are inextricably connected to the empirical discoveries of scientific disciplines. Yet Habermas’s universalism also makes apparent what appear to be inescapable challenges. Modern universalism requires standards of justifications that, simultaneously, must try to become transculturally and transhistorically valid, on the one hand, while remaining the result of free and autonomous deliberations in particular lifeworlds, on the other hand. Habermas is fully aware of this challenge and has addressed it in different contexts: from the history of social and political thought and the pragmatics of human language to constitutional debates in the EU. That the solutions remain tentative is, in my view, inscribed in the very attempt at keeping descriptive and normative arguments working together. Habermas combines them without eliding them, and differentiates them without reifying them. Instead of raising concerns about the ‘unity’ of his thinking, a certain ‘betrayal’ of his early radicalism and indeed the ‘insufficient’ political purchase of his theory, it has been my contention that this undying universalistic commitment is at the heart of Habermas’s project. The need for continuously addressing universalistic challenges is one long-lasting contribution of his social theory.

The importance of critically investigating the patterns of change and stability between social theory and natural law is a key contention of this special issue. Although natural law ideas keep playing a relevant role in modern society – justice, fairness, equality, freedom, human rights are not values we want to do away with – changing socio-historical circumstances mean that new normative challenges emerge in and from them. One issue that keeps reappearing is the mismatch between those natural law contents that we would actively like to retain as relevant for our current global modernity and justificatory strategies that prove more and more difficult to uphold. In its commitment to the development of a general theory of modern social life that is able to describe as well normatively assess its major institutions, Habermas’s project no doubt belongs to modern social theory. And to the extent that this is being pursued through a strong universalistic orientation, and that the modifications of his theoretical arguments can be explained with reference to challenges that are directly derived from this universalistic orientation, his work equally belongs in the tradition of natural law: Habermas’s social theory can thus be read as postmetaphysical natural law.