A number of commentators have written intelligently about Habermas's early masterpiece, The Structural Transformation of the Public Sphere (1962), but none has yet measured that work against Habermas's most recent writings on globalization, international law, and supranational democracy. By undertaking this comparison, McCormick has done an invaluable service to Habermas scholarship. Beyond that, he has also contributed to our understanding of the limits and possibilities of supra-national constitutional and democratic reform, chiefly as it bears upon the question of European legal consolidation.
As for the first contribution, McCormick again raises fundamental questions about the status of Habermas's social theory as an exemplar of Frankfurt School critical theory. Like many other commentators (including Habermas himself), he detects an important theoretical shift in the way that that social theory has related to history since Structural Transformation. In his opinion, Habermas's earlier approach to history had more in common with first-generation critical theory (and its Marxian inspiration) in its emphasis on examining qualitative changes within different phases of modern capitalism and their corresponding legal and political formations. Despite its speculative, philosophical pretensions, this use of immanent criticism, he believes, had the singular virtue of enabling Habermas to articulate the concrete possibilities and limits of emancipatory, social democratic politics of the then-dominant “Fordist” permutation of the social welfare state prior to its structural weakening in response to the neo-liberal pressures emanating from globalization. By contrast, the later theory – beginning most notably with Theory of Communicative Action (1981) – took as its point of departure a reconstruction of Weber's theory of secularization (modernization or rationalization), with its more sweeping and more abstract, social evolutionary distinction between premodern and modern society. This change in emphasis led Habermas to focus his attention on the ideal moral assumptions implicit in all modern legal formations, thereby ostensibly exaggerating their abstract continuity across time and down-playing their qualitative differences. In McCormick's opinion, this gain in formal rigor came at the expense of critical force.
It also ostensibly led Habermas to commit the same neo-Kantian fallacy that befell Weber's sociology of law: the identification of an outdated legal model as the quintessential and exclusive form that all modern legal forms must assume. Weber's rigid adherence to the formal legal paradigm of the Rechtsstaat as the only rational legal form compatible with a modern rule of law prevented him from accepting the legitimacy of the Sozialstaat, despite Weber's own social-democratic sympathies. Thanks to Habermas's substitution of a more avowedly justice-oriented, communicative paradigm of rationality in place of Weber's positivistic, purposive-rational paradigm, Habermas was able to conceptualize the Sozialstaat as a different but no less rational and legitimate instantiation of the impartial rule of law. But, for Habermas, neither Rechtsstaat nor Sozialstaat, when taken on their own, fully articulates the twin normative ideals of freedom and equality that inform a rational rule of law. Only a more abstractly “proceduralist” (reflexive or democratic) legal paradigm that mediates these opposed paradigms does so. Yet, as McCormick shows, this newer paradigm's very abstractness offers little critical guidance. More worrisome still, Habermas seems to repeat Weber's error by identifying the proceduralist paradigm in its national, statist form as a final resolution that any developing legal form must assume, including those post-national (or supranational) forms that Habermas attributes to the European Union.
McCormick here reminds us that Habermas's own ambivalences regarding the limits and possibilities of European legal consolidation partly reflect his own unresolved understanding of post-Fordist global capitalism. Does this new phase of capitalism constitute such a decisive rupture with the earlier phase as to jeopardize both the national welfare state as well as the regional federations that are supposed to protect that state from economic forces that are beyond its control? Is the EU merely adapting to global economic realities by fashioning a purely “negative” economic consolidation based on neo-liberal principles? If so, then it would be better to think of it as continuing the model of intergovernmental “treaty” law that has hitherto prevailed rather than as constituting a new supranational constitutional order. Or is the EU resisting these realities by forging a common political ethos based upon “green” social-democratic values, as Habermas wants to believe, despite the many signals – resurgent nationalism, growing bureaucratization of top-down policy making in Brussels, and decentralized neo-corporatist bargaining among economic sectors – that he himself concedes bode ill for realizing his ideal of transparent, inclusive, democratic decision-making?
One can read McCormick as mildly rebuking Habermas for not taking these obstacles to democratic constitutional consolidation seriously. However, beyond tendering this criticism, McCormick offers his own analysis of the EU's current trajectory. Drawing on an extensive literature, he argues that Euro-skeptics and Euro-optimists are both wrong, since the EU is increasingly becoming a Sektoralstaat in which experts and those most directly affected by processes within particular economic and environmental sectors consult one another and negotiate solutions that are supervised but not statutorily regulated by EU officials. This contemporary variant of corporatism constitutes arenas of deliberation and decision-making that are not altogether unattractive, normatively speaking, since those who are most affected by decisions have the opportunity to modify their opinions after consulting with experts. At the same time, such deliberations are neither fully inclusive, nor open to public oversight, nor egalitarian, nor unconstrained by systemic, functional necessities and particular interests. Indeed, as McCormick notes, they bear a strong resemblance to the neo-corporatist “refeudalization” of politics that Habermas diagnosed as early as Structural Transformation and which he has always resisted as antithetical to his deliberative democratic ideals. So, while endorsing these ideals, McCormick remains – at least for the time being – skeptical of their realization, at least as far as they apply to the constitutional and statutory legal forms wherein Habermas situates them; and he by no means wishes to dismiss out of hand the “deliberative” advantages of government supervised neo-corporatist decision-making, despite its built-in tendency to generate cross-sector coordination problems.
McCormick's study is meticulously researched and balanced. Although many chapters originally appeared as articles, McCormick does a good job of using helpful chapter summaries and introductions to keep the reader's attention focused on his main strands of argument. His book should be required reading for anyone interested in the immense challenges posed by globalization to European legal consolidation. Too, McCormick's interpretation of Habermas and Weber – whether one agrees with it or not – is always well informed by the primary and secondary literature.
That said, McCormick downplays the extent to which the Sektoralstaat's neo-corporatism is continuous with that already found in the Sozialstaat, thereby perhaps under-emphasizing the extent to which the former is an evolutionary development out of – rather than a wholly discontinuous break with – the latter. Furthermore, I would argue that some of Habermas's most recent reflections on the constitutionalization of international law that postdate McCormick's book suggest some convergence with McCormick's own thinking. Today Habermas views the constitutionalization of supranational entities increasingly in terms of a liberal rather than a republican model. Descended from a medieval system of corporate governance in which different classes, political units, and institutions bargained for particular, group-based privileges and protections, the liberal model does not aim at constituting a unitary, sovereign power so much as normatively delimiting partial spheres of governance that already exist. As Habermas makes clear, even group-specific rights can be embedded within the liberal model insofar as they protect against violations of equal treatment, securing the civil and political integrity of distinctive ethno-religious cultures.
In addition to this realistic assessment of the gradual evolution of constitutional legal forms, we find Habermas proposing a tri-level system of international governance that recognizes the need for intergovernmental and corporatist forms of bargaining. Even at the highest levels of international governance, institutions such as the International Criminal Court that are oriented toward processing the worst human rights violations will not be directly legitimated by democratic processes; for even if the United Nations were to evolve a kind of democratically representative assembly for deliberating and ratifying crucial decisions, it would not likely produce well-defined statutes in the manner of a national legislature. Technical problem solving concerning global security and financial problems, for instance, will also be resolved in neo-corporatist deliberations linking, for example, NGOs and appointed officials of governments, multinational corporations, and world trade and financial organizations, such as the IMF, the WTO, and the WB. At best, Habermas admits, these and other forms of intergovernmental and neo-corporatist consultation and bargaining will be indirectly legitimated by formal procedures for delegating executive authority, and these, in turn, will be more directly legitimated by national elections and public opinion.
As for McCormick's methodological criticism of Habermas, it remains a provocative, if undeveloped, argument. McCormick himself refrains from fully exploring Habermas's own reasons for rejecting (or better: supplementing) immanent historical critique with a social-evolutionary model of modernization. Leaving aside that model's conceptual and empirical weaknesses (which Habermas himself has noted), something like a theory of modernity is probably needed in order to establish the structural limits and possibilities of democracy within market-driven, formal-legal systems. In clarifying these limits and possibilities, McCormick has doubtless expanded the horizons by which those of us who are interested in supranational and transnational forms of collective decision-making must situate our own thinking. Yet any rigorous examination of the essential limits and possibilities of change within this system will confront the critical theorist with a dilemma: to criticize and prescribe from a partial and speculative standpoint or merely delimit a range of theoretically feasible and normatively desirable options. McCormick might wish Habermas had chosen the former horn of the dilemma but even he concedes that this lofty aim of practical enlightenment runs contrary to the modest, egalitarian role of a theory that sees itself as the guardian – not guide – of popular self-determination.
