Oliver Gerstenberg

Jürgen Habermas (1929—2026), who passed away on March 14^th, was arguably the primus inter pares of his generation of thinkers and intellectual representatives of a better, more democratic Germany. Motivated by what he described as moral revulsion against the horrors of Germany’s Nazi past, one of his crucial achievements was to open up the hitherto somewhat claustrophobic philosophical and legal debates in Germany to modern Western ideas of political liberalism and civic republicanism then prevalent in the United States. In doing so, he coined concepts which have entered, and are likely to endure in, global debate, such as “the gentle force of the better argument,” “ideal speech situation,” “discourse principle,” or the necessary “co-originality” of the rule of law and democracy as a way of giving institutional effect to that principle. Indeed, as his sometime interlocutor Ronald Dworkin is reported to have quipped, even Habermas’s fame was famous. 

The normative fil rouge

In the closing pages of his three-volume “Also a History of Philosophy”, which he published in 2019 at the age of 90, Habermas restated an idea which has been the normative fil rouge of much of his work – that of a moral learning process. For Habermas, this idea of a moral learning was intrinsically tied to the fundamental question of under what conditions it is legitimate for us to exercise, through our political institutions, coercive political power over other human beings in circumstances that are “post-metaphysical” in the sense that there are no external (for example, religious) foundations by which to ground and collectively own our judgments and choices.

Moral progress, if and where it occurs, and often only by slow degrees, triggered by shared moral outrage over gross moral transgressions, manifests itself, as Habermas wrote, in political and constitutional-legal institutions and procedures that enhance the potential for non-violent, consensual resolution of social conflicts between individuals or collectives precisely because they enable mutual perspective-taking between and among citizens who are morally diverse. Moral conflicts, Habermas insisted, can, at least in principle, be resolved with good reasons, but also only on that basis.

Mutual perspective taking

Hence, mutual perspective taking, as Habermas emphasized, aims at something altogether different from a merely a unilateral or one-sided assimilation of the other into one’s own pre-discursive normative horizon. Instead, moral learning through the reciprocal adoption of the perspective of others only occurs when relevant portions of the population discover new, morally relevant characteristics in “other” people to whom they previously felt no obligations on account of social distance, leading to the – often belated – realisation that these “strangers” do not differ from themselves in any morally relevant aspect and that therefore no valid reason exists for their non-inclusion.  

Moral progress therefore simultaneously entails both – the progressive social inclusion of the vulnerable and the progressive universalisation of socially and politically recognised constitutional-legal norms. Whereas slaves will always understand themselves as persons whose moral personhood as free and equal is being denied, also the “masters” must learn to see and recognise the other as an equal in their very otherness, as Habermas wrote, drawing on Hegel and the French Enlightenment tradition.   

And moral insights gained in this reciprocal learning process may thicken into political values and principles that by way of an idealising (but fallible) anticipation of common moral ground can be universally shared – the rejection of slavery and torture, the embrace of religious tolerance and free speech and non-discrimination, rights to social security, and so on. The universalism of abstract fundamental rights serves as pacemaker for the gradual enlargement of our historically given political-cultural self-understandings through ongoing exposure to the other. The universalising and contextualising dimensions of moral learning presuppose one another. 

A share liberal political culture

Moral learning processes, as Habermas emphasized, may in turn widen and deepen a shared liberal political culture on which they crucially depend. A liberal political culture as background is never simply given but always work-in-progress – something to be construed by democratically responsible citizens who by way of constitutional patriotism must be able to understand themselves as co-authors of the legal order in which they live. The constitution, in this reformist sense, always remains an unfinished project.

The conditions of deliberative democracy

These ideas about moral learning and reform are, of course, exceedingly abstract and somewhat removed from the business of everyday legal scholarship. Not only is real world politics far from the ideal speech situation; but it also is the case that people, even when committed to meticulously honouring the “discourse-principle” and to deliberation in good faith about values and their interpretations, will sharply, persistently, and often reasonably, disagree about what counts as the better argument in a given situation. The principal role of courts, on Habermas’s account, which was strongly influenced by Frank Michelman’s work, is to protect the procedural conditions of deliberative democracy. In the mid-1990s, Habermas engaged in a somewhat uneasy and inconclusive discussion with John Rawls, the thinker of political liberalism. A concern here was how “thick” or “thin” these procedural conditions must be understood to be and that deliberative democracy must be constrained by a sufficient set of rights that constrain what even deliberative publics might do.  

But there was also common ground with Rawls who, reflecting on the “manic evil of the Holocaust,” wrote that we must nevertheless start with the assumption that a reasonably just political society is possible and that human beings must have a moral nature, however imperfect. According to Habermas, without moral progress, regression would not be possible either. In the face of abysmal regressions, the thread of a learning process can encourage us to use reason in an effort to politically shape our often-appalling conditions of social life.  

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Oliver Gerstenberg is Professor of EU Law and Legal Theory at UCL, Faculty of Laws.

Note: The views expressed in this post are those of the authors, and not of the UCL European Institute, nor of UCL.

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Image: Jürgen Habermas, giving a lecture at ELTE Faculty of Law in Budapest in 2014, by European Commission/Dudás Szabolcs, Európa Pont, CC BY 2.0, via Wikimedia Commons.