Habermas Contra Foucault: Law, Power and the Forgotten Subject

The purpose of the present paper is to offer a Foucauldian critique of Habermas's theory of law and democracy. Quite famously Habermas viciously attacked Foucault's positions on law and power in modernity. Those attacks will be taken into consideration here in order to show some deficiencies in Habermas's own reading of modern law and democracy. My suggestion is that the formal nature of Habermas's communicative approach fails to take into adequate consideration the question of subjectivity formation. More precisely I will demonstrate that Habermas's own works show a troublesome ambivalence with regards to the possibility that individuals can participate as 'unencumbered selves' to the public life of their community. As a consequence his account turns a blind eye to certain dynamics of power in our society that a Foucauldian approach seems more apt to frame and explore.