Habermas 2000 Constellations

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Remarks on Erhard Denninger’s Triad of Diversity,
Security, and Solidarity
Jürgen Habermas
For decades, Erhard Denninger has been one of the most productive and astute
analysts of the transformation from a liberal to a welfare-state based concep-
tion of the constitution.1 In his earlier publications, he understood this change
as a paradigm shift which, in reaction to new societal challenges (first that of
classical industrial society, and thereafter that of the postindustrial risk soci-
ety), realized an objective legal substance that was always implicit in the
system of rights. His current perspective, however, extends a radically differ-
ent understanding of the constitution to its principles and basic rights them-
selves. Denninger wants to “expand and modify” the ideas of freedom,
equality, and fraternity with the postulates of security, diversity, and solidar-
ity.2 These ideas are reflected in new constitutional texts (for example in those
of the new East German Bundesländer) in such a way that social and cultural
basic rights, as well as ecological aspirations, are enacted as constitutionally
codified goals of the state; that is, not as subjective rights, but rather as objec-
tive aims of governmental policy.3 I will concentrate on the question of
whether these trends entail a new way of reading unchanged principles or
instead an expansion of the principles themselves. Furthermore, I will ask what
meaning programmatic formulas, statements of state goals and aspirations,
norms of social solidarity, and other constitutional declarations could have in
the framework of a democratic constitution.
Denninger thinks that the classical ideas of freedom, equality, and fraternity are
constitutive solely of a non-solidary legal order aiming at the “equal maximiza-
tion of freedom and the duty not to inflict harm.”4 According to this liberal under-
standing of the constitution, a market economy – in which individuals pursue their
own self-interest – is both differentiated from the state and its responsibility for
the common good and screened off from state intervention into the autonomous
private sphere of citizens. On Denninger’s reading, these classical ideas are
closely linked to a social contract model in which the constitution follows from a
preference-based agreement among rational egoists. They must therefore be
complemented by other principles as soon as regulatory functions (ensuring
economic growth and social welfare, management of technological risks, natural
conservation), or policies aiming at recognition, are to be achieved by the state.
The shift in the normative spectrum from the guarantee of subjective liberties to
the achievement of specific goals seems to suggest a different model, one
Constellations Volume 7, No 4, 2000. © Blackwell Publishers Ltd., 108 Cowley Road, Oxford OX4 1JF, UK
and 350 Main Street, Malden, MA 02148, USA.
grounded in solidarity, according to which the constitution follows from the
collective self-ascertainment [Selbstvergewisserung] of a community having “a
specific canon of values.”
But this communitarian contrast between a rationally purposeful agreement of
possessive individualists and a collective, ethical self-affirmation of citizens oriented
toward the common good remains incomplete. What is missing is the central idea,
developed by Rousseau and Kant, of the constitutional state – resting on the notion
of the autonomy of associated legal subjects. Neither the social contract nor the
assurance of a common cultural heritage offers an appropriate model for the process
of constitution-making. In my view, a more appropriate model is that of public
discourse in which free and equal participants come to an agreement about which
rights they must mutually recognize if they want to legitimately regulate their
common life by means of positive law. Decisive for the establishment of an associ-
ation of free and equal legal subjects is the idea of self-legislation whereby the
autonomous authors of the legal order remain the autonomous addressees of the law.
The public autonomy of the citizen is not conceivable without private autonomy and
vice versa; both reciprocally presuppose one another.
To found human rights and the rights of citizenship on the idea of human
dignity, as lawyers commonly do today, is not wrong, but it is insufficient. This
concept refers polemically to the particularistically determined social “honor” of
the members of an estate. What was originally defined as the inviolability of
status resulting from membership in a particular estate was generalized into a
“universal dignity” to be possessed by everyone. In the process of this universal-
ization, however, the intersubjective aspect was lost. Whereas the concept of the
autonomy of the citizen unites the meaning of individual self-determination with
that of political self-legislation, human dignity is seen as intrinsic to the single
individual as though it were a property of the abstract person prior to all social-
ization. However, when the dignity of the “most humble” is violated, so too is the
dignity of everyone else. More than that, the modern vocabulary of freedom better
expresses the fact that constitutions must be constructed as legitimate orders of
common life than ontological talk about human dignity.
The trends which induce Denninger to introduce an additional triad of basic
concepts all still seem to move within the normative framework of freedom,
equality, and fraternity. I would like to examine this point by considering the
themes according to which Denninger has formulated his new conception: 1) soli-
darity, 2) new diversity, and 3) the ethical interpretation of the constitution.
(1) The model of public discourse begins with horizontal relations of citizens with
one another. Only in a second step does it introduce the relationship of the citizen
to the functionally necessary apparatus of the state; this second step thereby
presupposes the existence of basic rights. In this way we avoid the liberal fixation
upon the question of how the government’s potential for violence can be controlled
by means of defensive rights. In fact, negative rights have only a derivative status.
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Remarks on Erhard Denninger’s Triad: Jürgen Habermas 523
The primary significance of the system of rights results from the performative
meaning of the practice of constitution-making [verfassungssgebende Praxis]:
this practice represents a cooperative attempt to solve the problem of how legiti-
mately to ground a political community with the help of positive law. Thus, there
exists an inner connection between legitimacy and solidarity. The legitimacy of a
secular order can be based only on “common” interests or, more precisely, on the
equal satisfaction of the interests of everyone.
Solidarity among citizens who expect one another to take responsibility for
each other, even though they are strangers, is artificial insofar as it is produced by
means of the law. To be sure, a liberal political culture is required so that the
abstract principles of the constitution can take root in the minds and motivations
of the citizens. The bonding power intrinsic to one’s status as democratic citizen
must effectively replace the pre-political, natural solidarity of village communi-
ties and religious congregations, corporations and guilds, that is, the local, voca-
tional, dynastic, or patriotic loyalties of early bourgeois society. In this way, the
constitution grounds a legally mediated community of responsibility [Verantwor-
tungsgemeinschaft] between citizens, but none between “between the citizens and
the state.”5 The state is merely an apparatus that is necessary because citizens can
develop opinions and choose between programs but cannot themselves act politi-
cally and transform programs into reality.
(2) Growing diversity in living conditions and amongcultural forms of life accom-
panies increasing social complexity. This differentiation necessitates augmenting
liberal and political basic rights with social and cultural rights. From the perspec-
tive of the democratic self-legislation of associated citizens, who grant each other
spheres of liberty for the sake of their individual self-determination, basic rights of
the second and third generations [that is, social and cultural rights] by no means
introduce an alien element into the French Revolution’s original values. Multicul-
turalism and the materialization of law only make explicit their objective, legal, and
intersubjective content, which, from the very beginning, was implicit in “classical”
basic rights, namely the rights to liberty and to political participation.
(a) The rights of work, social guarantees, and procedural rights implied by
“security” in a wider sense (particularly social welfare and protection against tech-
nological and ecological risks) directly preserve the private autonomy of those citi-
zens no longer protected solely by the possession of equal negative rights. At the
same time, they contribute indirectly to the acquisition of qualifications for citizen-
ship and thereby fulfill necessary preconditions for the emergence of equal political
autonomy. Rights claims arise from diverse societal interests and social situations
as well as diverse individual life plans; they no longer can be satisfied by means of
conditional legal programs. However, “materialized” and “teleological” legal
programs focussing on specific problems still must be legitimized by appeal to the
principle of equal treatment.6 And this egalitarian aspect of equal protection and
non-discrimination has always implied an “equal right to inequality.”7 If equal
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524 Constellations Volume 7, Number 4, 2000
chances for completely different forms of life are to be guaranteed, the law
requires the equal treatment of the equal and the unequal treatment of those who
are not equal. The materialization of law is a result of the dialectic between legal
and de facto equality. Of course, this must take place through the filter of a discur-
sive public if it is to lead to legitimate rules; only those affected can clarify – in
public debate – the criteria according to which equals should be treated equally
and unequals unequally.8
(b) For a long time, the European nation-state lived off the fiction of homo-
geneity that led to the exclusion and discrimination of minorities and, in the best
of scenarios, to a politics oriented to cultural assimilation. But more recently,
conflicts arising from frictions between different ethnic, religious, and cultural
groups have intensified; they call for a legitimate solution. Such struggles for
recognition are diferent than the usual struggles for distribution. Here the parties
are not fighting for their share of goods the meaning and value of which is undis-
puted (like money, vacation, time, or security). Rather, in “indivisible conflicts”9
of this sort, the assertion of collective identities and the mutual recognition of
differences are at issue. An acceptable legal solution therefore cannot aim “at the
synthesis of a universal (whole) but instead at the possibility of coexistence of a
multiplicity of often incompatible particularities.”10
If this goal is not to be attained at the cost of sacrificing the liberty of individ-
uals forced to conform to a minority otherwise worthy of protection, the fair coex-
istence of legally equal majority and minority cultures should not be accomplished
by means of collective guarantees of survival and special rights.11 Cultural rights
and entitlements (and corresponding policies and regulations) are grounded in the
individual membership of each citizen in an association of free and equal legal
persons who can only preserve their integrity as socialized individuals through
equal access to identity-constituting social relations and traditions.12 Denninger
correctly points to the problem of the growing need for tolerance which arises
from this.13 For the equal coexistence of members of different ethnic or religious
groups does not exclude the fact that the legal regulation of “ethical” conflicts –
for example, in questions of euthanasia or abortion – can bring with it unequal
burdens for the parties in conflict. Tolerance is the price we pay for the abstract
respect that members of a community based on solidarity, and guaranteed by
constitutional law, can legitimately expect across cultural boundaries.
(3) We still face the question of the relative importance of constitutionally-
promulgated politial goals and obligations of solidarity which constitute the foun-
dations for a system of compelling, legitimate, and binding legal norms. Given
that the system of rights is seen as the realization of the performative meaning of
the practice of constitution-making, and given that this practice is the self-legis-
lation of citizens oriented towards mutual understanding in the language of posi-
tive law, then the basic norms, upon which the participants agree in public
discourse and put into effect by coercive law, can claim “validity” in only one
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Remarks on Erhard Denninger’s Triad: Jürgen Habermas 525
sense: the validity of the law connects the factual bindingness of law with a deon-
tological bindingness grounded on the persuasive power of legitimate lawmaking.
Since the autonomy of the citizens is the basic idea here, legal norms must be
made so that they can be accepted at the same time as compulsory laws and as
laws of freedom. Legal obedience without prejudice to autonomy can only be
expected if law is able to claim legitimacy and can be followed solely “out of
respect for the law.”
According to this Kantian view, within a valid legal system there can be no
graduated normative validity. The binary code of the law is incompatible with
what Denninger describes as “the growing differentiation between the normativ-
ity of mere statutes and the normativity of constitutional law.” It is all the more
incompatible with an “opening of basic norms to the introduction and processing
of ethical value decisions,” especially if the constitutional court usurps the role of
a secondary legislator by determining which ethical values “should be transported
into the sphere of law and made legally administrable and justifiable.”14 The
German Constitutional Court could only justify its “jurisprudence of values” by
appealing to soft, programmatic, non-enforceable constitutional aims and expec-
tations of solidarity if these could be understood as part of a legal order that had
been converted into an “order of values.” For this reason, Denninger’s attempt to
clarify these questionable elements of law, which deviate from the classical struc-
ture of law, is of great importance both from a jurisprudential and from a politi-
cal standpoint.
One interpretive key is provided by the thesis that the constitution also has the
function of codifying the results of citizens’ “collective reflections” about the
normative basis of their common life in the form of “fundamental pronounce-
ments.” By this, however, I do not understand the poetic traces of a romantically
transfigured act of political foundation,15 but instead determinations of the perspec-
tive out of which citizens take over, renew, and continue pre-given constitutional
traditions. On the basis of the relevant declarations and programmatic sentences
which Denninger examines, I single out three categories which are compatible with
a deontological understanding of “the law,” since they arise out of a reflection on
what a “valid” constitutional order, in the strict sense, is. By means of commentaries
of this type, the generation that established the constitution gives the succeeding
generations a way to understand how the basic principlesof the constitution should
be hermeneutically appropriated, concretized, and shaped.
(a) Constitutionally codified policy goals that can be systematically grounded
in the legal order itself are guidelines for the political legislator – that is to say,
they provide legislative guidance when they have constitutional status and to this
extent are withdrawn from the day-to-day political strife between the govern-
ment and opposition. Basic social and cultural rights (for example, the right to
work, housing, or the protection of minorities) can take the form of constitu-
tionally-endorsed goals because they refer to factual presuppositions for the
equal use of existing liberties and rights of participation which can only be
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526 Constellations Volume 7, Number 4, 2000
granted in accordance with that which is economically possible and politically
feasible.16 Such constitutional policy goals reflect historical experiences of
painful injustice and failed recognition. Social injustice and discrimination are
answered by the state’s obligations to provide protection and entitlements that can
be directly derived as objective legal implications of the constitutionally guaran-
teed basic rights to equal subjective freedom and political participation.
(b) The language of constitutionally-codified policy goals can, on the other
hand, also be used to express a particular sense of historical responsibility or a
determinate constellation of values, and thus, the ethical-political self-under-
standing of the legal community. When the constitution of the state of Branden-
burg promulgates the need “to complete the inner unity of Germany,” and at the
same time to situate itself within a unified Europe as a “member with equal
rights,” it reflectively affirms a specific historical situation. However, program-
matic principles entailing the protection of the environment, tolerance towards
strangers, “responsibility in relation to future generations,” or “the protection of
the weak,” weigh values in such a way that a specific tradition is affirmed or a
collectively desired form of life accentuated. Such constitutionally-codified
policy goals giving expression to the spirit or the political ethos of a state are not
only addressed to the legislator, but to everyone involved in the realization of the
system of rights and in the ongoing political “uncovering” of its meaning.
(c) A third sort of declaration directs the citizens beyond the text of the
constitution back to themselves. These self-obligations and expectations of
solidarity appear at first glance particularly pale. Denninger mentions, for
example, the resolution of the Joint Constitutional Commission that “each
person is urged to be altruistic and to respect the common good.” Now one can
argue about the ineffectiveness of pedagogical “constitutional appeals.”
However, they can also be understood as the result of a rational reflection on
the limits of the medium of law. In modern legal orders, for good reasons the
political rights of participation and communication take on the form of subjec-
tive-public rights, which can be interpreted by citizens as liberties. Citizens of
a democratic state are free to decide when and how they can make use of their
political rights. In any case, respect for the common good can only be recom-
mended, but it cannot be made into a duty. Nonetheless, the democratic process
depends on public spiritedness and a sense of solidarity because legislation
derives its legitimating power only from the citizens’ discursive understanding
of the norms of their common life. The paradox of generating legitimacy out
of mere legality can only be solved if a liberal political culture encourages its
citizens not to remain in the position of self-interested market actors, but rather
to make use of their political liberties in a manner oriented toward mutual
understanding. Solidarity clauses therefore rest on the sensible attempt to make
up for an unavoidable deficit in the legal obligations of citizens by admonish-
ing them to a “public use of reason.”
(Translated by Christopher Long and William E. Scheuerman)
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Remarks on Erhard Denninger’s Triad: Jürgen Habermas 527
NOTES
1. E. Denninger, “Verfassungsrechtliche Schlüsselbegriffe,” in his Der gebändigte Leviathan
(Baden-Baden, 1990).
2. Denninger, “Vielfalt, Sicherheit und Solidarität,” in his Menschenrechte und Grundgesetz
(Weinheim, 1994), excerpted in this issue.
3. Denninger, “Staatsaufgaben und Menschenrechte,” manuscript (May 1996).
4. Denninger, “Verfassungsrecht und Solidarität,” KritV 78 (1995).
5. Denninger, “Vielfalt, Sicherheit und Solidarität,” 31.
6. Translator’s Note: Habermas distinguishes between relatively traditional forms of “condi-
tional” (“if. . .then”) law and “materialized” (typically goal-oriented, welfare-state) legal regulation.
See Habermas, Between Facts and Norms (Cambridge: MIT Press, 1996), esp. ch. IX.
7. Denninger, “Vielfalt, Sicherheit und Solidarität,” 34.
8. Habermas, Between Facts and Norms, 409ff.
9. A.O. Hirschmann, “Wieviel Gemeinsinn braucht eine liberale Gesellschaft,” Leviathan 2
(1994), also H. Dubiel, “Unversöhnlichkeit und Demokratie,” in W. Heitmeyer, Was hält die
gesellschaft zusammen? (Frankfurt, 1997), 425–444.
10. Denninger in this issue, 512.
11. W. Kymlicka, Multicultural Citizenship (Oxford, 1995), 34ff.
12. Habermas, “Struggles for Recognition in the Democratic Constitutional State,” in The Inclu-
sion of the Other: Studies in Political Theory (Cambridge: MIT Press, 1998).
13. Denninger in this issue, 512ff; Habermas “Reply to Symposium Participants, Benjamin N.
Cardozo School of Law,” in Habermas on Law and Democracy: Critical Exchanges, ed. Michel
Rosenfeld and Andrew Arato (Berkeley: University of California Press, 1998), 393f.
14. Denninger, “Verfassungsrecht und Solidarität,” 23.
15. M.J. Perry, Morality, Politics and Law (Oxford, 1988), 121ff.
16. Denninger, “Menschenrechte und Staatsaufgaben–ein europäisches Thema,” JZ 51 (June
1996): 587.
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528 Constellations Volume 7, Number 4, 2000