Does Reflexive Justice Adequately Address Problems of Postnational Legitimation?

In his piece, The Postnational Constellation and the Future of Democracy, Jürgen Habermas examines the effects of globalization on national democratic legitimation and reflects on the possibility of democratic processes beyond the nation-state. Habermas frames this discussion as the ‘opening’ of intersubjectively shared lifeworlds and he explores the possibilities of ‘closure’. Nancy Fraser, in her book, Scales of Justice: Reimagining Political Space in a Globalizing World, proposes a solution to this discourse of opening and closure in the form of reflexive justice. I have certain reservations concerning the ability of reflexive justice to adequately deal with problems of closure that Habermas elaborates, specifically concerning the generation of civic solidarity for the legitimation of postnational institutions. However, before I turn to this evaluation, I want to briefly outline Habermas’ discourse of opening and closure as well as Fraser’s concept of reflexive justice.

Habermas argues that democratic society has only been credibly realized in the context of the nation-state, however, the forces of globalization have opened these societies constituted as nation-states and thus Habermas is interested in the possibility “of a renewed political ‘closure’ of this global society” (61). He first examines the construction of democratic processes within the nation-state which he argues requires an administrative state to collect taxes, sovereign territorial delimitation of a geographical area, the symbolic construction of ‘a people’ (i.e. the nation-state), and a democratic mode for the legitimation of political authority. The forces of globalization have affected these four aspects of the nation-state institutionalization of the democratic process, “which allows the addresses of law to regard themselves at the same time as authors of the law” (65). In effect, Habermas argues that global market forces have driven out politics and thus “the possibilities for a democratic self-steering of society slip away” (78). Habermas conceptualizes this change as part of a modernization dynamic of opening and closure between networks and lifeworlds. Situated within a dynamic historical process of the opening of lifeworlds by new forms of functional integration and the closure of lifeworlds through the creation of new forms of social integration, globalization can be seen as a new form of functional integration that has opened intersubjectively shared lifeworlds. This allows the possibility of the reorganization of collective identities, and the potential of closure. For Habermas, this is problem of the postnational constellation: how to create closure, or new collective identities, that can legitimate democratic processes beyond the nation-state. Habermas, goes on to explore the EU as a possible model for postnational democracy, however, he offers no significantly fleshed out path forward to closure, although he does examine the problems of closure under conditions of the postnational constellation. I want to return to these difficulties, but first, I want to look at Fraser’s concept of ‘reflexive justice’ as one potential theoretical framework for addressing the contemporary opening of the nation-state.

Fraser defines justice discourse as ‘normal’, “so long as public dissent from, and disobedience to, its constitutive assumptions remain contained” (49). Normal justice discourse allows contests concerning what justice requires in particular cases, but these debates occur under a set of shared assumptions of the “what”, “who”, and “how” of justice. When these assumptions are contested, according to Fraser, we find ourselves in a situation of abnormal justice. Fraser makes the diagnostic argument that we are currently in a situation of abnormal justice due to forces of globalization “in which the basic parameters of political contestation are up for grabs” (71). Resolving these disputes about the underlying assumptions of a justice discourse requires developing normative and evaluative criteria for examining contested assumptions of justice. To this end, Fraser proposes the concept of a reflexive discourse of justice that sets normative criteria for the examination of the assumptions that undergird a discourse of justice. To address the ‘what’ of justice the principle of parity is proposed, to address the ‘who’ of justice the all-subjected principle is proposed, and to address the ‘how’ of justice a two-track “theorizing that is both dialogical and institutional” (67) is proposed. Thus, reflexive justice, in Frasers words, seeks “to accommodate both moments, the moment of opening and the moment of closure” (74). However, how well does this engage with and ‘solve’ Habermas’ problem of closure, or postnational legitimation?

We can see Fraser’s concept of a reflexive justice discourse as offering a certain kind of solution to the problem of closure that Habermas’ examines in his piece. Fraser sees her approach as superior to the Habermasian discourse-ethical approach because not only does it valorize the moment of closure, as in the discourse-ethical approach, but valorizes the moment of opening, as in the agonistic approach. Thus, reflexive justice refuses “to absolutize either model and thus to exclude the insights of the other”. This is a powerful synthesis; however, Fraser specifically makes mention of formal international institutions which require “fair procedures and a representative structure to ensure the democratic legitimacy of its deliberations” (69) in her elaboration on reflexive justice. These formal international institutions are an important part of addressing contests about the “how” assumptions of justice, and therefore an important part of Fraser’s concept of reflexive justice. Giving democratically legitimated international institutions such a central role in her theory leaves her unable to address the problem of closure as Habermas poses it. For Habermas, the problem is how to create new collective identities that can legitimate these international institutions and Fraser does not adequately address this problem. I see a potential argument for Fraser that these formal institutions could generate a thin constitutional patriotism that would provide sufficient legitimation in the form of a weak civic solidarity. However, it is unclear whether this thin constitutional patriotism would provide enough civic solidarity to adequately legitimate what seem to be in, Frasers conception, rather robust international institutions.

Fraser argues that her conception of reflexive justice, in a certain sense, transcends the false dichotomy of opening and closure, however, while this may be the case she does not adequately address the problems of closure, in the form of postnational legitimation, as elaborated by Habermas. This is an important blind spot in Fraser’s argument, since her conception of reflexive justice seems to require robust democratically legitimated international institutions. While I see a few different possibilities for addressing this blind spot, as it stands I have reservations that the concept of reflexive justice is able to adequately address the problem of closure as posed by Habermas.


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