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Equal Treatment of Cultures and the Limits of Postmodern Liberalism*

ürgen

abermas

Philosophy, University of Frankfurt and Northwestern University

LASSICliberalism, going back to Locke, used the mechanisms and conceptsof modern law to tame political power and put it at the service of the pre-eminent goal of protecting the pre-political freedom of the individual memberof society. The core of a liberal constitution is the guarantee of equal individualliberties for everyone. This corresponds to Kant’s “Universal Principle of Right,”according to which, “the freedom of choice of each can co-exist with everyone’sfreedom according to a universal law.” Even the “rule of the people” remainsan instrument of the “rule of law.” The political autonomy of citizens is not anend in itself; rather, it is a means of safeguarding the equal private autonomy of members of society.Liberalism recommends itself through the elegant interrelation of twopowerful normative intuitions. On the one hand, the idea of equal individualliberties for all satisﬁes the

moral

standard of egalitarian universalism, whichdemands equal respect for and consideration of everyone. On the other hand,it meets the

ethical

standard of individualism, according to which each personmust have the right to conduct her life according to her own preferences andconvictions. The equality of all citizens is expressed in the generality of laws,while actionable rights, derived in each case from laws, guarantee to every citizena well-deﬁned latitude in pursuing her own way of life. Consequently, ethicalindividualism is the essential meaning of egalitarian universalism, which takesover the substance of modern law from post-conventional morality.Differentiating ethical life-plans from questions of justice complies withthe requirements of a disarmed mode of post-metaphysical thinking. Sincephilosophy has given up its ambition of competing with religious worldviews, itno longer claims for itself onto-theological or cosmological foundations for auniversally binding model of the successful or not-misspent life. It claimsuniversal validity only for moral claims about what lies in the “equal interest of all,” that is, what is equally good or bearable for each. A moral theory like this

The Journal of Political Philosophy:

Volume 13, Number 1, 2005, pp. 1–28© Jürgen Habermas, 2005.*Translated by Jeffrey Flynn.

refrains from committing to the substantial conception of an exemplary life-stylethat is plainly authoritative

for everyone

. Morality, having become “formal” inthis respect, is closely linked with the idea of equal respect for and considerationof each person. This idea of equality also returns in the positive, compulsory andindividualistically structured form of modern law: in the conceptions of “equaltreatment” and “human dignity” (purged of any attributes of status).This liberal idea of equality was repeatedly subjected to criticism. Initially, thecivic republicanism that had been pushed aside by liberalism responded with theobjection that the “freedom of the ancients” must not be sacrificed on the altarof the “freedom of the moderns.” In fact, classic liberalism threatened to reducethe meaning of equal ethical liberties to a possessive-individualist reading of subjective rights, misunderstood in instrumentalist terms. In so doing, it missedan important normative intuition, which ought to be recovered even underconditions of modern societies—an intuition about forms of solidarity that linknot only relatives, friends and neighbors within private spheres of life, but alsounite citizens as members of a political community beyond merely legal relations.The core of the liberal legal order consists of liberties that are geared towardthe business transactions of private-property owners as well as the religiousconscience and belief of private individuals. That reading of an “egoistically”narrowed conception of ethical freedom was echoed in the polemic of the youngMarx against the American and French declarations of rights. The objection isthat the freedom of the individual is not exhausted by the right to a utilitarian“pursuit of happiness”; thus, it does not consist only in enabling the privatepursuit of one’s interest in earthly and spiritual goods.To compensate for this deficit, the modern recourse to civic republicanismbrought into play a different, intersubjectively expanded understanding of freedom, tied to the role of the democratic citizen. In this tradition, going backto Rousseau, the equal rights to communication and participation are not justimportant for the elaboration of subjective private rights; rather, they makepossible a practice carried out by citizens jointly and valued as an end in itself.From a republican point of view, democratic self-legislation establishes a formof solidarity that – however abstract, because legally mediated – lets one citizentake responsibility for the other (even with weapons in hand). In the democraticwill-formation of a sovereign people, the political ethos of the community isreproduced and revitalized. Equal rights guarantee ethical freedom. This time,however, it is not first and foremost the subjective freedom of the individualmember of society, but instead freedom conceived as the sovereignty of a nationof citizens united in solidarity. This idea of sovereignty has ramificationsinwardly in a communitarian understanding of the political freedom of themembers of a national community, and outwardly in a collectivist understandingof the freedom of a nation asserting its existence against other nations.As the price of this element of civic solidarity, however, ethical republicanismaccepts a limitation on egalitarian universalism. Each citizen enjoys equal rights

2JÜRGEN HABERMAS

only within the restrictions of a particular ethos, presumed to be shared by allmembers of the political community. The fusing of citizenship and nationalculture results in a “monochrome” interpretation of civil rights that is insensitiveto cultural differences. The political priority of an ethically-permeated commongood over the effective guarantee of equal ethical liberties inevitably leads, withinpluralistic societies, to discrimination against different ways of life and, at theinternational level, to helplessness in the face of a “clash of civilizations.”These problems can be solved only within a framework that, from theperspective of egalitarian universalism, disconnects the mobilization of civicsolidarity from ethnic nationality and radicalizes it toward a solidarity among“others.” In binding itself to universalistic constitutional principles and to“human” rights, the sovereign will-formation of democratic citizens is onlyacting according to the necessary presuppositions of a legitimate legalinstitutionalization of its own practice.

Historically-evolved forms of solidarityare transformed, but not destroyed, by the intersecting of the republican idea of popular sovereignty with the idea of a rule of law spelled out in terms of basicrights. According to this third reading, which mediates between liberalism andrepublicanism, citizens understand the political ethos that keeps them togetheras a nation as the intentional outcome of the democratic will-formation of apopulace

accustomed

to political freedom. The internal relation between theprivate autonomy of the individual member of society and the commonly-exercised political autonomy of citizens has been progressively

worked out

; thehistorical experience of this fact is eventually expressed in the national pride of an acquired, intersubjectively shared consciousness of freedom.Citizens can make an appropriate use of their political rights only if, in virtueof an equally protected private sphere of autonomy in conducting their lives,they are in a position to judge and act independently. On the other hand,members of society can actually enjoy undiminished private autonomy to anequal extent only if they make use of their political rights as citizensappropriately; not solely with regard to self-interest, but also oriented towardthe common good. The idea, introduced by Rousseau and given a universalisttwist by Kant, that the addressees of the law must be able to understandthemselves at the same time as its authors, does not give the united citizens of ademocratic community

carte blanche

to make any decisions they want. Theyshould enact only such laws as are legitimated by the fact that they can be willedby all. The subjective freedom to do as one pleases within the bounds of the lawis the core of private, not civic, autonomy. On the basis of this legally-guaranteed

EQUAL TREATMENT OF CULTURES3

Jürgen Habermas,

Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy

, trans. William Rehg (Cambridge, Mass.: MIT Press, 1996). Jürgen Habermas, “On theinternal relation between the rule of law and democracy,” in Habermas,

The Inclusion of the Other:Studies in Political Theory

, ed. Ciarin Cronin and Pablo De Greiff (Cambridge, Mass.: MIT Press,1998), pp. 253–64. Jürgen Habermas, “Constitutional democracy: a paradoxical union of contradictory principles?”

Political Theory

, 29 (2001), 766–81; reprinted in Habermas,

Time of Transitions

, trans. Max Pensky (Oxford: Polity Press, 2004).