The following paper was presented at the Eighth Annual Telos Conference, held on February 15–16, 2014, in New York City.
As the final speaker after a fascinating day of talks, I’ll keep my comments brief. I’ll be addressing two questions about democracy raised by our conference description: first, “the reasons for its rarity and volatility”; and, second, “the factors that are essential for its stability.” For each question, I’ll try to provide a concise, mildly provocative answer from my perspective as a writer and scholar about constitutional law and comparative legal history.
So why is democracy so rare and volatile? I think one answer we could give to this question is that democracy is volatile because the modern self is a legal achievement. There is nothing outside of law, including individual subjectivity. Instead, the modern self that lies at the center of liberal democratic practice developed only after a long historical process of dialectical negation and synthesis. In that process, a handful of societies, beginning in western Europe, transcended what in my most recent book I call the “rule of the clan.”
Taking Thomas Bernhard’s 1970 novel The Lime Works as an exemplar of a group of post-World War II German and Austrian literary works that mimic identifiable genres of legal writing, this article offers two alternative theoretical models for making sense of the prevalence of legal-literary genre-mixing in postwar German-language literature. Viewed through the lens of Theodor W. Adorno’s Aesthetic Theory, the literary imitation of legal styles appears as an instance of “mimesis of the lethal,” the process by which artworks both adapt to and resist what Adorno calls “reification.” Viewed through the alternative lens of Jürgen Habermas’s Theory of Communicative Action, the literary use of legal styles can be seen as a way of partially reconciling modernity’s specialized discourses (such as science, art, and law) by uncovering the “tortuous routes” along which these discourses communicate with one another. Through a mixture of theory and formal analysis, the article offers both a new reading of Bernhard’s work and a new set of theoretical approaches that may prove fruitful to the study of 
