Clotilde Nouët: In his habilitation thesis, Habermas insists on the fact that the revolution takes hold of the critical dimension of public space: the capacity of members of civil society to constitute themselves into a collective body produces a critique of absolutist power, because it requires for the State reason to be subjected to the exercise of a collective practical reason. It is this critical dimension, which, according to him, is the springboard for an indefinite politicization of civil society and its claim to exist as an autonomous instance from the State.

Luc Foisneau: Why do you say “indefinite”? One could imagine that once deliberative representative institutions have been put in place, the practice of criticism would take on forms that are different from revolutionary forms. What is Habermas’ position on the articulation between forms of critical discursivity within political institutions and the intervention of the people in the streets?

 

Clotilde Nouët: This idea of an indefinite politicization is a central aspect: the critical process set in motion with the raise of public opinion can indeed produce institutions —deliberation then takes place in formal instances, for example in parliaments. But radical democracy is found where an anarchic public space remains, which is likely to challenge institutions. Habermas therefore proposes a model with a double trigger, consisting both in a parliamentary pole, and an extra-institutional pole. He uses Hannah Arendt’s idea of power to think a constituent communicational power that persists outside representative democracy11, and which the latter cannot absorb.

Luc Foisneau: Is it desirable that representative and deliberative democracy can absorb this remainder? Or is this anarchic public space, this residue that cannot be assimilated by representative democracy, constitutive of democracy for Habermas? If it were, would it not constitute a limit to Habermas's communicational democracy, since organized communication constitutes the horizon of democratic practice there? In other words, what relationship do you see between deliberative democracy and radical democracy?

 

Clotilde Nouët: It seems to me that the very concept of democracy points to a fundamental inadequacy between the political people and what we might call its sociological figures. Hence, there is a permanent tension between the institutions that aim to represent the people and the manifestations of a surplus that cannot be assimilated by representation. This is why the existence of a public space outside the institutional public space is a specificity that is properly democratic. But this does not go without raising difficulties: first of all, the question of its legitimacy, but also difficulties linked to the modalities of construction of such an extra-institutional space, notably by bodies that escape the control of the political actors themselves. This space is taken over by the media, which contribute to its public visibility, but which can also play a significant role in the formulation of problems. Deliberative arenas do not always have the spontaneous and self-piloted character they should have. Not to mention the function of legitimizing public opinion in the context of welfare states, which Habermas showed in the 1970s to be particularly affected by legitimation crises12.

Freedom of Speech

Luc Foisneau: This distinction is indeed very important. We can see that it is at the heart of the current debate: there is growing suspicion about the public space that is being covered by the media, and this questioning is not without impact on the way in which we conceive of the constitutional right to freedom of expression. Could you clarify how you understand the extension and limits of freedom of expression within the current political context, which is characterized by a tension between an official public space and an anarchic public space, a tension that is expressed on social networks, on traffic circles, in cafés, wherever political discussion takes place?

 

Clotilde Nouët: Perhaps we should start by trying to clarify what we mean by freedom of expression. The classical liberal interpretation tends to see it as a sphere of individual expression protected from state interference. But Habermas conceives of freedom of expression rather as one of the constituent rights of the public sphere, alongside freedom of assembly and association and freedom of the press. The idea is that freedom of expression is one of the cornerstones of a democratic public space, and therefore contributes in an essential way to democracy itself: far from being a negative freedom, or to use the terminology developed by Hohfeld, a privilege13, a simple freedom to do something without being prevented from doing it, it is therefore both a positive and political freedom, which may require a “guarantee of participation14”, and which is part of a collective exercise of expression.

Luc Foisneau: What exactly is meant by this astonishing formulation, in view of classical liberalism, according to which freedom of expression would be a social right?

 

Clotilde Nouët: Habermas himself does not use this expression. But I rely on a 1963 text in which he rereads the Declarations of the Rights of Man and of the Citizen, trying to distance himself from the Marxist reading of human rights15. He shows that the object of Marx’s criticism, namely rights according to political liberalism, can be thought of differently: these rights are in fact ways of articulating social demands. It is thus a very specific architecture of the relations between civil society and the State that is put in place on the occasion of the Declarations of Rights. These should not be understood as the manifestation of an opposition between individuals and the State. The determination of individual liberties reveals a certain relationship between civil society and the State. This interpretation clearly shows that what is at stake in the right to freedom of expression is the question of the social conditions for the exercise of this right. Thus, freedom of expression is not only a right to communicate and receive opinions, but a right to have access to spaces of expression where individual opinion is audible, as well as a right to dispose of a plurality of information and opinions allowing for a considered judgment to be formed. This necessarily leads us to reflect on the positive obligations of states or governments to ensure such a “claim-right”.

Luc Foisneau: What does this mean concretely in relation to the current situation? On the one hand, we have an official public space and media, which strongly frame freedom of expression, and, on the other hand, an anarchic public space in the strong sense of the term, where social demands are expressed that do not find an echo in the sphere of representation and official deliberation, as well as hate speech. This is one of the difficulties of the current situation16: do people seek to express a social situation that the rulers refuse to see, or to express opinions that the constitution forbids them to express because they are contrary to the spirit of the Republic? Can a Habermasian theory of the public space allow us to separate the wheat from the chaff —this formulation expresses, I am aware, a normative position —or, at least, guide us in the work of regulating this multiple expression?

 

Clotilde Nouët: Habermas would probably not help us to establish a normative dividing line between good and bad discourse, because the procedural model of democracy that he defends does not claim to impose normative content on discussions. The latter are supposed to regulate themselves and produce their own normativity.  This being said, there are two scenarios. Deliberations that are subject to procedural constraints, as reflected in a constitutional framework, are subject to norms that could be called “of equal freedom” and that imply mutual respect in deliberation. Moreover, such deliberations are not necessarily the monopoly of institutions. On the other hand, what Habermas calls “mass communication” refers to all the flows of opinions and ideas that circulate in the media space (and today we would include social networks), which, for their part, do not always seek representativeness or quality. But this is due to the very structure of such communication, which escapes face-to-face encounters —therefore to the reversibility of the positions of the speaker and the recipient —and thus can emancipate itself from the constraints of justification that normally weigh on deliberations. And yet Habermas does not call for the regulation of such communications. He is convinced that thoughtful public opinions are quite capable of being formed by exploiting the rational potential of so-called “wild” communication flows —as long as both press freedom and the diversity and independence of the media are guaranteed17.

Difficulties in Habermas’ thinking

Luc Foisneau: That’s the difficulty. Today, the French government has proposed a major national debate to respond to the multiple demands expressed in the Yellow jackets movement. The question is not simply who will lead or organize this debate, but whether the very framework of a national debate does not already constitute a radical limitation on the freedom to express oneself. The normative framework itself can raise suspicion, in the sense that the place where the debate is organized can in part determine the possibilities of expression. Could you tell us what the transformation of an anarchic debate into an official debate changes, or does not change, to the content of what is expressed? Can Habermas help us answer this question? Or maybe not? I am referring here to the critical dimension in your current reflection on his work.

 

Clotilde Nouët: Yes, from my point of view, the weaknesses of the Habermasian thought lie in the gap between its inaugural project and its realization. His project is indeed, through a theory of communication, to think the dissolution of all forms of domination, both social and political. The limit seems to me to lie less at the level of the idea of deliberative politics —which is a central concept to articulate different forms of political claims or political subjectivities —than at the level of the theory of discursive rationality, that is to say, at the level of the theory of argumentation that grounds the Habermasian conception of deliberative democracy.

Habermas is not sensitive enough, in my opinion, to the disqualifying effects of discourse that manifest themselves in the social space, whether these disqualifications are due to the difference in status between speakers or whether they are related to the fact that certain arguments used by political subjects are not always audible. Habermas’ idea is that, in principle if not in fact, the best argument will always win. We can maintain this regulatory ideal, but it is not enough to say that the discussion is likely to produce false statements. We still need to elucidate the reasons why it does so. This fallibility stems from the fact that one can argue in a supposedly rational space, which nevertheless remains impervious to the correctness of certain arguments because the structure of the social space masks the power relations that underlie the discussion. Let’s take the example of domestic violence: in order for this theme to be treated as a political theme, it is necessary to have previously accepted that the domestic sphere is not strictly a private space, so it is necessary to accept the idea of a relative politicization of the domestic sphere. This process implies, upstream of the rational space, that social relations or the whole social structure allow such arguments to be heard for what they are.

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