Habermas: The Discourse Theory of Law and Democracy 9780804777810

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Haber mas

Jurists: Profiles in Legal Theory William Twining, General Editor

Habermas the discourse theory of law a nd democr acy

Hugh Baxter

stanford law books An Imprint of Stanford University Press Stanford, California

Stanford University Press Stanford, California © 2011 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archival-quality paper Library of Congress Cataloging-in-Publication Data Baxter, Hugh. Habermas : the discourse theory of law and democracy / Hugh Baxter. p. cm. — (Jurists—profiles in legal theory) Includes bibliographical references and index. isbn 978-0-8047-6912-9 (cloth : alk. paper) 1. Habermas, Jürgen.  2. Law—Philosophy.  3. Sociological jurisprudence.  4. Democracy—Philosophy.   5. Discourse analysis.  I. Title.  II. Series: Jurists—profiles in legal theory.

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2011

340'.1—dc22 2010039808 Typeset by Thompson Type in 10/13 Galliard

Contents

Acknowledgments  vii Introduction  1

1. Basic Concepts in Habermas’s Theory of Communicative Action  9



2. Habermas’s “Reconstruction” of Modern Law  60



3. Discourse Theory and the Theory and Practice of Adjudication  106



4. System, Lifeworld, and Habermas’s “Communication Theory of Society”  148



5. After Between Facts and Norms: Religion in the Public Square, Multiculturalism, and the “Postnational Constellation”  192

Notes  255 Bibliography  311 Index  323

Acknowledgments

This work has been underwritten in part by summer research grants from Boston University. Thanks to the School of Law for that support. I’ve presented prior versions of parts of this book at the following venues: faculty workshops at the University of Illinois, the University of Texas, Northeastern University, and Boston University; the 2007 and 2008 annual meetings of the Law and Society Association; and the 2000 meeting of the Working Group on Law, Culture, and the Humanities. Thanks to the participants at those sessions. Special thanks to friends and colleagues who read and commented on preliminary versions: David Lyons, Pnina Lahav, Richard McAdams, Manuel Utset, and Daniela Caruso. I have benefited also from communications with Cristina Lafont and John Victor Peterson. Thanks to the anonymous reviewers at Stanford University Press, particularly Anonymous Reviewer #3. Heartfelt thanks for the guidance I received over the years from Rhoda Greenspan, Michael Caplan, Kevin Lyons, Bonnie Teitelman, Peg Baim, Sharon Cardamone, and Rachel Bairstow. In memory of my friend, Francis Tomasic, who introduced me to Habermas’s work. Deepest appreciation to my parents, Cynthia Lewis Baxter and Maurice Baxter, for their love and support throughout my life. For my wife, Marina Leslie—with gratitude, much love, and great anticipation of our future years together.

Haber mas

Introduction

The work you have in front of you is a critical analysis of the complex theory of law and democracy developed by celebrated German philosopher and sociologist, Jürgen Habermas (1929– ). It presumes no prior familiarity with Habermas’s work and is designed to be understood by those with little prior acquaintance with law and legal theory. As with other volumes in the “Jurists” series, I begin with a brief biographical sketch of my chosen figure,1 which I integrate with a brief outline of the book’s plan and central arguments. Habermas was born on June 18, 1929, in the German town of Gummersbach, located in North Rhine-Westphalia about forty miles from Düsseldorf. His grandfather was a Protestant minister and seminary director, and his father served as a district director of the Bureau of Trade and Industry.2 Habermas describes his father as having been a “passive sympathizer” with the Nazi regime.3 According to Habermas’s recollection, “The political climate in our family home was probably not unusual for the time, . . . marked by a bourgeois adaptation to a political situation with which one did not fully identify but which one didn’t seriously criticize either.”4 Near the end of the war, Habermas joined Hitler Youth, and he soon was sent, with other boys apparently as young as twelve, to “man the Western defenses.”5 Habermas recalls that, at the end of the war, when he was just short of sixteen years old, “the radio was reporting the Nuremberg trials, movie theatres were showing the first documentary films, the concentration camp films. . . . All at once we saw that we had been living in a politically criminal system. I had never imagined that before.”6 The experience was shattering for Habermas, and undoubtedly it was fundamental in

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Introduction

developing the left-wing political convictions that underlie both his relatively mandarin academic interests and also his numerous interventions into political controversies as, by the late 1980s, Germany’s leading public intellectual.7 Between 1945 and 1949, Habermas studied at gymnasium, and between 1949 and 1954 he pursued university studies at Göttingen, Bonn, and Zurich. In 1954, he completed his PhD at the University of Bonn, writing his dissertation on Schelling’s concept of nature. After serving as assistant to first-generation Frankfurt School philosopher Theodor Adorno at the Institute for Social Research, Habermas completed a second doctorate in Marburg. His dissertation (or Habilitationsschrift) is much read today (although not translated into English until 1989): The Structural Transformation of the Public Sphere: An Investigation into a Category of Bourgeois Society (1962).8 After serving as a professor at the University of Heidelberg, Habermas succeeded first-generation Frankfurt School figure Max Horkheimer as professor of philosophy and sociology at the Johann Wolfgang Goethe-University in Frankfurt (am Main).9 Habermas’s inaugural lecture at Frankfurt, “Erkenntnis und Interesse,” formed the basis for his 1968 book of the same title, translated into English as Knowledge and Human Interests. Habermas’s argument in that work was that the natural and human sciences are related to fundamental cognitive or “knowledge-constitutive” (erkenntnisleitende) interests, rooted in our species life: interests in, respectively, the control of nature (the “technical” interest) and the establishment of mutual social relations (the “practical” interest). More speculatively still, Habermas argued for a third “emancipatory” interest in the elimination of repression, both individual-psychological and social, with psychoanalysis and Marxian ideology critique as the scientific models. While the theory was subjected to intensive criticism,10 leading to Habermas’s backing away from some of its central arguments, the underlying distinction between “labor” and “interaction” informed his later work. And Habermas continued to pursue the idea of a critical theory of society that had inspired his speculation as to an emancipatory cognitive interest. After Knowledge and Human Interests, Habermas began to expand the already extensive theoretical influences on his work. In one line of inquiry, he investigated social systems theory, beginning a more-than-twenty-fiveyear debate with German sociologist Niklas Luhmann that lasted until the latter’s death in 1998. Habermas and Luhmann coauthored a 1971 book that contained their first but hardly last critical exchange.11 Habermas followed that work with a more influential 1973 study, Legitimation Crisis.



Introduction

Two aspects of that book are especially noteworthy. The first is methodological: Habermas began his career-long quest of integrating insights from social systems theory, on the one hand, with more standard social theory that begins from the perspective of the acting subject. The idea, as Habermas put in Legitimation Crisis, was to develop a “two-level theory of society,” one that sees society both as system and as “symbolically structured” “lifeworld” of everyday action. “Both paradigms, life-world and system, are important,” Habermas argued. “The problem is to demonstrate their interconnection.”12 The idea of integrating these two sociological perspectives has been a key concern for Habermas throughout his career. The second significant development in Legitimation Crisis was substantive. The book represents Habermas’s attempt to update Marx’s theory of crisis tendencies in capitalism. Marx’s theory of the tendency toward economic crisis in capitalist systems depended on a theoretical premise—the labor theory of value—that Habermas rejects. While Habermas allows for the possibility of economic crisis, he argued that it was not beyond possibility that tendencies in that direction could be successfully managed by political intervention. Accordingly, his interest shifted more toward tendencies toward “rationality crisis” (essentially, overburdening of political planning capacity) and “legitimation crisis” (the inability of an expertocratic and planned state to secure the conditions of its own legitimacy). The latter form of crisis depends in turn upon tendencies toward “motivation crisis”—the possibility that the post-1960s generation would continue a path of questioning and rejecting the values and motivations presupposed by a capitalist economic system and a liberal democracy. This emphasis on social crisis theory went together with Habermas’s methodological focus on developing a “two-level” theory of society. Both themes, substantive and methodological, have been central parts of Habermas’s work, particularly up until his turn toward direct consideration of law and legal issues in 1992. Another weapon in Habermas’s expanding methodological arsenal came from his encounters with Anglo-American analytic philosophy of language, particularly the speech-act theory of (among others) J. L. Austin and John Searle. The focus of speech-act theory on “pragmatics,” or the study of language in use, rather than (from Habermas’s perspective) the more abstract approach of formal semantics, was congenial to Habermas’s attempt to develop a theory of “communicative action” that could ground, ultimately, a new conception of rationality in action: one that he called, not surprisingly, “communicative rationality.” Around this time—the early

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and mid-1970s—Habermas was studying, finally, theories of social evolution as keys to his continuing attempt to recast Marxian understandings of social transformation. All of these lines of inquiry converged in Habermas’s 1981 magnum opus, Theory of Communicative Action. This two-volume treatise alternated between readings of leading figures in social theory—Max Weber, Georg Lukács, Frankfurt School figures Horkheimer and Adorno, George Herbert Mead, Emile Durkheim, Talcott Parsons, and finally Marx—with more systematic development of his new two-level theory of society. The action-theoretical or “lifeworld” side of that theory was centered on his understanding of communicative action. The “system” side of that theory developed a Parsons-inspired theory of societies as evolving, input-output related networks of differentiated subsystems—the economic and administrative systems, on Habermas’s account. The “lifeworld,” he argued, was “socially integrated” by shared norms and values. With the development of capitalism, Habermas argued, economic and administrative systems historically evolved from the social lifeworld. These systems are characterized by mechanisms of “systems integration,” like the market, that bind together patterns of largely self-interested action through the often counterintuitive consequences of action rather than the actors’ intentions. Habermas presented this complex, two-level evolutionary theory of society as a recasting of Weber’s idea of the “rationalization” of Western societies—that is, the incorporation of various forms of rationality and rational action into a variety of social settings. What Habermas tries to capture is what neo-Marxist but Weber-influenced theorists Georg Lukács, Max Horkheimer, and Theodor Adorno saw as a distorted form of rationalization, a development they called (and criticized as) “reification.” Habermas sees his task as rescuing this neo-Marxist appropriation of Weber’s theory of rationalization from Lukács’s lapse into apotheosis of the Communist Party and Adorno’s indulgence of self-conscious paradox in which a critical standard is literally inconceivable. While Habermas argues that the process Weber called “rationalization” had left unexhausted rational potential that could be exploited by, in particular, more radical democratization, his central theme is a more defensive crisis theory—a revision of the argument of Legitimation Crisis that now sees tendencies toward the “colonization of the lifeworld.” Leaving aside the Marxian question whether advanced capitalist societies might be headed toward economic crisis or “crisis in material reproduction,” Habermas focuses instead on tendencies toward crises in “symbolic reproduction.” By that he means



Introduction

an incompatibility between the “functional imperatives” of reproducing (primarily) the economic system and the requirements of society seen as “lifeworld”—social integration, socialization of persons, and cultural reproduction. The framework Habermas develops in Theory of Communicative Action still informs his work today, including his understanding of law and democracy. Accordingly, in Chapter One of the present book I provide a critical analysis of that framework. Habermas wrote Legitimation Crisis and Theory of Communicative Action during his eleven-year stay as director of the Max-Planck Institute for social research in Starnberg, West Germany. In 1982, he returned to Frankfurt. His academic writing for the first few years back at Frankfurt centered around developing a communicative or “discourse” theory of ethics from his theory of communicative action13 and responding to the debate over modernity and postmodernity. With respect to the latter, Habermas maintained his position that the critical and rational potential of modernity had been realized only selectively in the development of a capitalist economy and bureaucratic state apparatus. Modernity is thus, in Habermas’s view, an “unfinished project.”14 His Philosophical Discourse of Modernity (1985) was notable for his engagement (though disappointing in my view) with Michel Foucault and Jacques Derrida, considered at the time as perhaps Habermas’s top theoretical rivals. Habermas’s political interests became more sharply engaged with the debate, beginning in 1986, over West German revisionist historians’ account of the Nazi period. In this public political debate, carried out in the pages of Die Zeit and Die Frankfurter allgemeine Zeitung, Habermas argued that his conservative opponents had minimized German responsibility for the Holocaust. Against the conservative alternative of “national pride,” Habermas began to develop the idea of “constitutional patriotism” as the only form of national attachment that could do justice to universalistic principles of morality and political democracy. This idea of constitutional patriotism has remained important in Habermas’s recent work, emerging as his idea of responsible political attachment in increasingly multicultural societies. Around the same time, and inspired by his ongoing encounter with Weber, Habermas began to turn his attention systematically, for the first time, to law and legal theory. His 1986 Tanner Lectures, “Law and Morality,”15 took their departure from Weber’s sociology of law and his conception of political legitimacy. The next year Habermas convened a five-year working group on legal theory that involved several German colleagues

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trained in the field. By 1992, Habermas had completed his monumental Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy.16 My critical analysis of Between Facts and Norms is the core of the present book: Chapters Two, Three, and Four. Habermas’s project in Between Facts and Norms has two parts. The first is the “discourse theory of law and democracy” proper, which Habermas describes as a “reconstruction” of the “normative self-understanding of . . . modern legal orders.”17 The central theme of this part of the project is that legitimate law and radical democracy mutually presuppose one another. Habermas’s normatively ambitious discourse theory first develops an account of the “system of rights” that must be recognized, in one form or another, for a legal order to be legitimate. He then turns to the “principles of the constitutional state” that would be required to secure those rights. Habermas next “test[s] and elaborate[s] the discourse concept of law and democracy” against, first, contemporary discussions in legal theory, and, second, contemporary controversies in constitutional practice and theory.18 The second main part of Habermas’s project locates this discourse theory in a model of modern complex societies. Habermas has two purposes here. First, he wants to examine whether the discourse theory, developed through normative “reconstruction,” actually has a purchase on factually existing social conditions. Second, elaborating his theory of law and democracy through social-theoretical concepts allows him to deepen, and to make more concrete, his normative theory. The plan of the present study is as follows. I begin, in Chapter One, by setting out the basic concepts of social action and social theory that Habermas incorporates from his work of the late 1970s and 1980s. Here my main focus is on the argument of Habermas’s two-volume Theory of Communicative Action (1981). In Chapters Two and Three I address the first part of Habermas’s work on law and democracy—the normative “discourse theory” proper. Chapter Two considers Habermas’s “reconstruction” of modern law’s “normative self-understanding.” I discuss in the first part of that chapter Habermas’s account of the basic problematic of modern law—the risk of dissensus that has increased with social modernization—and I analyze the tension between law’s “facticity” and law’s “validity” that organizes Habermas’s entire theory of law and democracy. With that as background, I critically examine in Habermas’s analysis of the “system of rights.” After a section comparing Habermas’s derivation of that system with Rawls’s better-known generation of principles of justice from the original posi-



Introduction

tion, I go on to suggest some skepticism about Habermas’s largest claims for the system of rights: that it reconciles longstanding tensions between “private” and “public autonomy” and between the idea of basic rights and the idea of popular sovereignty. I then criticize Habermas’s account of the constitutional state, particularly his reliance on what he calls “the discourse principle.” This principle is the basis for Habermas’s theory of law and democracy, but I argue that it cannot bear the full weight that Habermas places on it. In Chapter Three, I turn to Habermas’s “testing” of the discourse theory against recent developments in the theory and practice of adjudication. The first part of Chapter Three addresses the general theory of adjudication that Habermas develops in dialogue with Dworkin’s theory of “constructive interpretation.” The second part of Chapter Three considers the special case of constitutional adjudication. In both parts, I am critical of the uses to which Habermas puts the notion of judicial “discourses of application”—a notion that is central to Habermas’s idea of courts’ appropriate role in a separation-of-powers scheme. An additional difficulty in Habermas’s theory is its inability to account for—and Habermas’s understandable unwillingness to exclude as illegitimate—the common-law adjudication process that is basic to Anglo-American law. I criticize also the distinction Habermas tries to establish between his “proceduralist” theory of constitutional adjudication and the “neorepublican” theory of Frank Michelman. Finally, I consider the implications that Habermas’s proceduralist theory might have for constitutional law and democratic politics. Here I engage some recent developments in American constitutional law: Supreme Court decisions in the last few years that concern how electoral districts are to be drawn and whether corporate speech may be permitted to dominate public discussion surrounding elections. Chapter Four focuses on the second part of Habermas’s theory of law and democracy: the “communications theory of society” and, in particular, the social-theoretical model of “system” and “lifeworld” that Habermas uses to organize that theory. My contentions will be that while Habermas appropriately chooses to revise the model presented in Theory of Communicative Action, and while the strategy of argument is a refreshingly prodemocratic conception rather than politically defensive crisis theory, the revised model nonetheless introduces some difficulties. I suggest in the last section of Chapter Four that Habermas might improve that model by selectively incorporating ideas from his long-time theoretical adversary, systems-theorist Niklas Luhmann.

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Introduction

During the time Habermas was writing Between Facts and Norms, the Soviet Union collapsed, and Germany was reunified. As the nation’s leading public intellectual, Habermas turned his attention to the new political situation, publishing (to speak for the moment only of books) Die nachholende Revolution (1991), focusing on the political developments in Eastern Europe and particularly East Germany; A Berlin Republic: Writings on Germany (1995); and The Inclusion of the Other (1996). The last collection is particularly rich, as it contains Habermas’s side of his much-anticipated 1995 debate with preeminent American political philosopher John Rawls as well as Habermas’s first systematic attempts to consider the possibilities for democracy beyond the nation-state. Inclusion of the Other also features Habermas’s taking up of the Kantian political project of “perpetual peace” under the heading “the constitutionalization of international law.” Habermas since has pursued the idea of (what he calls) the “postnational constellation,” particularly concerning the possibilities for democracy beyond the nation state, and he has pressed severe criticism of American intervention in Iraq under the second Bush administration. During these years Habermas has become a prominent advocate of European integration, though in his most recent discussions he has sharply criticized what he takes to be the undemocratic means through which that integration, after the failure of the proposed European constitution, has been pursued. Finally, and particularly in his Between Naturalism and Religion (2005), Habermas has sought to understand the worldwide resurgence of religion.19 He has weighed in on the debate over multiculturalism and the discussion over the role of religious argument in the sphere of democratic public debate. Along these lines, Habermas has jointly published a dialogue with Pope Benedict XVI, and he has sought to engage the moral and ethical questions surrounding new biotechnologies.20 In Chapter Five I consider this spate of writing since Between Facts and Norms. In keeping with the present book’s focus on Habermas’s theory of law and democracy, I explore in particular three of Habermas’s main themes: the role of religion in the public square, political-philosophical issues surrounding multiculturalism, and the possibilities of democracy beyond the nation-state (with special attention to the European Union).

chapter one

Basic Concepts in Habermas’s Theory of Communicative Action Habermas begins his construction of the theoretical framework he develops in Theory of Communicative Action with a theory of action. He aims to go beyond standard conceptions of rational action to generate a theory of “communicative action.” In this form of action—or, more properly, interaction—participants pursue their goals either on the basis of an existing consensual understanding or with the aim of developing that kind of understanding (see section 1.1). Habermas sets his concept of communicative action within a concept of society: a concept that, following the phenomenological tradition in philosophy and social theory, Habermas calls society as “lifeworld” (see section 1.2). Both in Theory of Communicative Action and later in Between Facts and Norms, Habermas takes the notion of the “lifeworld” as the basic conception of society, to be amended or supplemented only for cause. As I suggested in the Introduction, Habermas argues that in the course of social evolution—specifically, with the rise of a capitalist economy and a bureaucratic state—systems of economic and political action develop in which action is coordinated not by consensual understanding by the consequences of self-interested action. I consider in section 1.3 Habermas’s idea of such “systems.” Habermas’s thinking here is inspired by his reading of Talcott Parsons, the preeminent American sociologist from the early 1950s until perhaps the early 1970s. In section 1.4, I consider how Habermas puts the lifeworld and system concepts together in his model of system/lifeworld interchange. This model is the basis of Habermas’s critical theory, from its development in 1981 at least until Habermas revised it in his 1992 work Between Facts and Norms.

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My argument will be that in elaborating each of these basic concepts, and particularly in his account of system/lifeworld interchange, Habermas tends toward polar distinctions that cannot be maintained. Communicative action is not so clearly demarcated from other forms of action as Habermas suggests, and because Habermas constructs his notion of the lifeworld around communicative action the distinction between system and lifeworld similarly is too sharply drawn. This tendency toward stylized oppositions, I contend, ultimately undermines the system/lifeworld model Habermas develops in Theory of Communicative Action. And thus to the extent Habermas relies on that model in Between Facts and Norms, his account of law is correspondingly weakened. Further, I argue, the critical model Habermas develops in Theory of Communicative Action is more functionalist than straightforwardly normative. Habermas argues that the overextension of economic and bureaucratic forms of rationality threaten the “symbolic reproduction of the lifeworld,” inducing forms of social crisis that he calls collectively “the colonization of the lifeworld.” I will argue in subsequent chapters that Habermas revises this politically defensive strategy by arguing, more positively, that the idea of legitimate modern law and more radically democratic political practice mutually imply one another.

1.1 c om m u n ic a t i v e ac t ion Habermas distinguishes among three types of rational action1: instrumental action, strategic action, and communicative action. Typically he marks the differences among these types with a pair of crosscutting distinctions.2 One distinction is between two “orientations” of action, toward “success” or toward an “understanding” between the actor and others. The other distinction tracks Max Weber’s notions of “social” and “nonsocial” action— where “social action” means action in which the actor “takes account of the behavior of others” and orients her action accordingly.3 Both instrumental action and strategic action are oriented toward success rather than mutual understanding. They differ, however, along the lines of Habermas’s second distinction. Instrumental action is essentially the solitary performance of a task, according to “technical rules.” As such, instrumental action is “nonsocial,” in Habermas’s typology. Strategic action, by contrast, is designed to “influenc[e] the decisions of a rational opponent,” according to “rules of rational choice.” Instrumental actions may be ele-



Theory of Communicative Action

ments of a pattern of social action—either communicative or strategic—but they do not themselves comprise a distinct type of social action.4

1.1.1 The Distinction between Communicative and Strategic Action More difficult is the distinction between communicative and strategic action. The general distinction Habermas draws between these two forms of action—orientation toward success versus orientation toward understanding—is not by itself very helpful. As Habermas allows, communicative action as well as strategic action is goal directed, and the goals of communicative action are not necessarily reducible to the aim of reaching understanding. Orientation to “success” versus orientation toward “understanding,” then, does not seem a promising basis for distinguishing between strategic and communicative action—at least not without additional explanation. Nor does the term communicative by itself mark the difference: Habermas acknowledges both that communicative action does not consist wholly in speech acts5 and also that strategic action, too, may include the use of speech.6 The picture becomes clearer, however, when one considers the purpose of Habermas’s typology. As a social theorist, Habermas is interested primarily in how individual actions can be coordinated into patterns of interaction.7 For this reason, Habermas generally uses the terms communicative and strategic to refer to types of interaction rather than to discrete individual actions. The problem Habermas sets himself—and the basis for his distinction between communicative and strategic action—is to identify the mechanisms that coordinate these two types of interaction.8 This task Habermas approaches through his “formal pragmatics.” With the term pragmatics, Habermas signals his focus on language in use—on utterances or “speech acts”—as opposed to a semantic focus on the meaning of isolated sentences or propositions. By “formal,” Habermas means that he seeks not to describe and classify the “communicative practice of everyday life” 9 as it operates within a particular language—that would be the approach Habermas calls “empirical” pragmatics—but instead to “rationally reconstruct” the necessary presuppositions of communicative practice.10 What Habermas pursues in his formal pragmatics is a theory of the unreflectively mastered, pretheoretical communicative capacities of ordinary competent speakers. This theory focuses, in particular, on the way speakers may use speech acts to establish, maintain, or transform social relationships with other persons.

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The central idea in Habermas’s formal pragmatics, and the basis for his conception of communicative action, is the notion of a speech act’s “validity.” Habermas distinguishes among three forms of validity to which speech acts may lay claim: propositional truth,11 normative rightness (Richtigkeit), and sincerity (Wahrhaftigkeit).12 Typically, Habermas observes, just one of these validity claims is thematic in a particular speech act: In a confession, for example, the claim to sincerity is thematic, as is the claim to truth in a factual assertion.13 Habermas’s formulation of the main categories of speech acts reflects this insight: In “constative,” “regulative,” and “expressive” utterances, the claims to truth, rightness, and sincerity are (respectively) thematic.14 Nonetheless, Habermas contends, any speech act in communicative action raises simultaneously all three claims, even if (ordinarily) the speaker raises only one directly or thematically.15 Here perhaps Habermas stretches the notion of “raising a claim” too far. We would not ordinarily say, for example, that a speaker’s request for a glass of water “raises a truth claim”—that she claims it to be true that a glass of water can be obtained and brought in a reasonable amount of time. More likely we would say that she presupposes these factual circumstances. A weaker but more plausible formulation of Habermas’s position might therefore be that every utterance constitutive for communicative action raises a claim to or presupposes validity in the three respects Habermas identifies. An alternative (and also weaker) formulation is that, at least in principle, any speech act can be criticized along any of the three dimensions of validity.16 For example, a statement that the argument of a colleague’s book depends on five identified factual errors would be a constative speech act in which propositional truth is the thematic claim. But if one were to make such a statement at a party celebrating the book’s publication, a hearer might respond by saying that such a criticism, even if true, is normatively inappropriate in the context of its utterance. Or the hearer might reply by challenging the speaker’s sincerity—by, for example, suggesting that the criticism arises more from the speaker’s jealousy than from a serious evaluation of the book’s merits. In this second revision of Habermas’s thesis, every speech act constitutive for communicative action involves all three claims in that, in principle, a hearer can challenge the utterance in each of the three different ways. Either of these two weaker versions of Habermas’s thesis would suffice for his purposes. And the second of the two, emphasizing the role of a hearer’s criticism, connects to an important theme in Habermas’s notion of communicative action. Validity claims, Habermas maintains, are



Theory of Communicative Action

essentially criticizable.17 By “criticizable,” Habermas means that in communicative action the hearer may respond to the claims by taking a “yes or no position”—either accepting the speech act’s claims or opposing them with criticism or requests for justification.18 And at least to the extent the interaction between speaker and hearer is to remain communicative,19 the speaker assumes the obligation of providing such justification if necessary.20 Further, particularly in the case of regulative speech acts (such as a promise), mutual acceptance of a validity claim may impose future obligations.21 In these senses, acceptance of validity claims, or further discussion between speaker and hearer aimed at consensus concerning those claims, is the “mechanism of understanding [Verständigung]” that coordinates communicative action. Because the point often has been misunderstood, it is worth underscoring that Habermas does not equate communicative action with the speech acts that coordinate it. In communicative action, as in all rational action, the participants pursue goals and plans of action, based on their interpretations of the situation.22 But communicative action is action proceeding from or directed toward achieving a consensus. In communicative action, Habermas says, actors “coordinate their individual plans . . . on the basis of communicatively achieved agreement.”23 The mechanism coordinating strategic action, on Habermas’s scheme, is not “consensus”—mutual acceptance of validity claims—but “influence” (Einflußsnahme).24 The term influence requires explication. In one sense of the word, communicative actors may seek to influence each other. In discussing a problematic claim, one may try to persuade the other that his position is correct, and the other may try to convince the one of her criticism. But by “influence,” Habermas says, he means “exert a causal influence,”25 independent of the convincing force of reasons that could support claims to validity. So far, however, the characterization of “influence,” and thus the characterization of strategic action, is only negative—influence operates in some way other than mutual recognition of validity claims. Habermas tries to characterize the mechanism of influence more precisely by distinguishing between two subtypes, “open” and “concealed” strategic action. Of these two subtypes, Habermas has given far more attention to concealed strategic action. The kind of “influence” characteristic of concealed strategic action is, in effect, deception26—primarily conscious deception.27 The more technical criterion Habermas adopts for concealed strategic action concerns the “avowability” of the parties’ intentions or aims. In concealed strategic interaction, at least one participant pursues

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aims that he knows could not be avowed without jeopardizing that participant’s success, while at least one participant assumes that all are acting communicatively. A simple example: One person requests a loan from another person without disclosing that the money will be used for a criminal purpose. Assuming that the person from whom the loan is requested has no reason to endorse the criminal purpose, the aim is nonavowable, in Habermas’s sense, because to declare it is to make tender of the loan unlikely. This kind of action is parasitic on communicative action, Habermas believes, because the success of the coordinating speech act depends on the hearer’s belief that the speaker could redeem the claim to have spoken his intentions sincerely or truthfully.28 Habermas has given less attention to the notion of openly strategic action. From his general characterization of strategic action—that it operates through “influence” rather than “consensus”—we can assume that strategic actors do not presuppose or seek a consensus in plans or goals or at least not one resting on mutual acceptance of validity claims. But how can it be characterized positively? In Theory of Communicative Action, Habermas attempted to specify open strategic action with formal-pragmatic analysis. Focusing on the variant of open strategic action most difficult to distinguish from communicative action—the sort that, like communicative action, is coordinated by speech acts—Habermas assumed that the characteristic kind of coordinating speech act is the “simple” or “pure imperative.” By “simple” or “pure” imperative, Habermas meant a command that is a sheer assertion of power. To these simple imperatives Habermas contrasted speech acts that are similar in form—involving a command or order—but that, on Habermas’s analysis, belong to communicative action. These sorts of commands or orders Habermas called “normatively authorized requests.” Habermas’s example of such a request was a flight attendant’s instruction to a passenger to extinguish a cigarette. These two kinds of speech act differ, Habermas argued, in their “acceptability conditions,”29 by which Habermas meant the speaker’s basis for expecting compliance and the addressee’s basis for complying. In the case of pure imperatives, the basis for compliance is only the addressee’s fear of negative sanctions (or interest in positive sanctions) over which the speaker has disposal. This motivation Habermas characterized as “merely empirical.” In the case of normatively authorized requests, by contrast, the speaker expects compliance not just because she can deploy sanctions but because compliance is normatively required. If the addressee accepts



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the speaker’s claim that compliance is normatively required—required, in Habermas’s example, by a valid safety regulation—then the interaction is coordinated by mutual acceptance of a claim to normative rightness. Because the claim to normative validity is criticizable, Habermas argued, it must be supported or opposed with reasons, not simply with reference to potential sanctions. Accordingly, Habermas argued, the hearer’s acceptance of the speaker’s claim may be motivated rationally, not just empirically.30 Habermas thus characterized the opposition between communicative and open strategic action through a series of further oppositions: between normatively authorized requests and simple imperatives, between validity claims and power claims, between reasons and sanctions, and between rational and empirical motivation. Habermas since has disavowed this way of distinguishing between communicative and open strategic action. In particular, he has acknowledged the untenability of any “sharp distinction between normatively authorized [requests] and simple imperatives.”31 Instead, Habermas now argues, from a sociological perspective we see a “continuum” between purely “de facto” power and “power transformed into normative authority.”32 While at one end of the continuum is the pure or simple imperative—his standard example is the bank robber’s “hands up” demand—Habermas now admits that such an imperative is only an “extreme case” or “limit case.”33 Rather than a “categorial” difference between pure imperatives and normatively authorized requests, Habermas maintains, there is only a “difference of degree.”34 With this concession, Habermas must abandon the idea that pure imperatives exemplify open strategic action generally. If the bank robber’s command were the paradigm case, then open strategic action would be a socially marginal form of action. And that would be inconsistent with the main line of Habermas’s work. A prominent feature of modern societies, Habermas argues, is the development of “spheres of strategic action”—preeminently the market.35 The category of open strategic action must be understood more broadly than the “pure imperative” model would suggest. Habermas has not much elaborated on how we are to conceive of open strategic action, if not along the lines of the pure imperative. But from Habermas’s preliminary specification of strategic action, together with other remarks scattered throughout his work, we can construct at least a sketch. The paradigmatic case of open strategic action seems to be competition among rational opponents, each pursuing self-interested goals according to rules of rational choice. Each tries to influence or steer each

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other’s choices, and each is aware that the other is operating in this way. The choices of each are conditioned by their respective predictions of the other’s choices as well as by the consequences of their interaction. Game theory, rational choice theory, and decision theory, Habermas sometimes suggests, formalize this paradigmatic case of open strategic action.36 But even this paradigmatic case differs in important ways from the norm-free, purely power-driven form of action that the “pure imperative” model described. Strategic competition, Habermas acknowledges, typically takes place against a normative backdrop.37 Strategic action in the marketplace, for example, presupposes general acceptance of a variety of legal norms—such as criminal-law norms that forbid some tactics or strategies and permit others, norms of property law that outfit some with more market power than their opponents, rules that define the possibilities for different kinds of transaction, and the like. These legal norms structure the participants’ choices among strategies and tactics. Further, apart from stateenforced law, informal social norms may shape strategic interactions in particular spheres of economic activity. Even paradigmatic cases of strategic action, then, may involve the mutual recognition of legal and social norms. Habermas’s recognition that the pure imperative is only the “limit case” of open strategic action, not the paradigmatic case, has further consequences. In rejecting the “pure imperative” model, Habermas recognized a “continuum” along which power relations are more or less underwritten by social norms. This recognition suggests a corresponding continuum within the concept of strategic action, according to which instances of strategic action may be more or less structured and coordinated by binding social norms that the participants mutually recognize. If this is so, then strategic interaction may shade more or less toward communicative action. Open strategic action, in short, cannot be as “norm free,” or as sharply distinguished from communicative action, as the “pure imperative” model suggested.38 Similar observations apply on the other side of the communicative/ strategic distinction. In many actual instances of communicative action, the sanctions Habermas considers characteristic of strategic action may be ready to hand. Habermas’s own example of the flight attendant’s “no smoking” request to the passenger illustrates this point. While this request raises a claim to normative validity, the passenger likely will not get far by treating that claim as if it were readily criticizable. The sanctions available to the flight attendant—even if never invoked or even referred to—likely will limit the extent to which the normative claim, criticizable in principle, actually may be criticized. This is not to deny the difference between the



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flight attendant’s normatively authorized request and the bank robber’s demand. But it is to suggest that, just as actual instances of strategic action are not norm free, so too are many actual instances of communicative action far from power or sanction free. (Interactions in the workplace are a good example.) Habermas’s point about the continuum of power relations suggests a continuum between the “pure types” of communicative and strategic action. Habermas appears to have come to this conclusion. He now describes interactions as “fall[ing] along a continuum” between purely communicative and purely strategic action, with most actual situations presenting a “mélange” of these types.39 In fact, Habermas’s “discourse theory of law” preserves an important place for action that reflects elements of both pure types, regulated bargaining and fair compromise. What Habermas insists on is not an on-or-off distinction among actual interactions in the world but a difference between two approaches to the dimensions of validity he distinguishes. Habermas expresses this difference as one between the “performative” attitude, constitutive for communicative action, and the “objectivating” attitude that is constitutive for strategic action. By “performative,” Habermas means (in this context) something like “oriented toward validity.” Within the performative attitude, social norms are criticizable and in need of justification.40 By “objectivating,” Habermas means that social norms appear not so much as potentially justifiable or criticizable but simply as social facts, with more or less calculable consequences attaching to their violation or obedience. Within this objectivating attitude, norms are primarily conditions for, or obstacles impeding, the success of the actor’s self-interested pursuits.41 (Think here of Holmes’s “bad man.”42) Increasingly, Habermas has come to rely on this opposition between “performative” and “objectivating,” not just to distinguish between communicative and strategic action but also to mark the difference between different methodological approaches to social theory.43 And the opposition between the corresponding understandings of social norms— seen, respectively under the aspects of “validity” (Geltung) and “facticity” (Faktizität)—underlies Habermas’s theory of law and democracy.44 This distinction between the performative and objectivating attitudes, like the other distinctions Habermas has invoked to differentiate communicative and open strategic action,45 does not unequivocally and uncontroversially classify actual interactions as purely communicative or purely strategic. The existence of intermediate and borderline cases is unsurprising, however, and it does not pose a fatal objection to Habermas’s typology. The

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real questions are whether Habermas’s characterizations of communicative and strategic action mark an intelligible alternative—whether the pure types are sufficiently distinguishable—and more important, whether the distinction and typology mark useful differences for theoretical purposes. This last question is the one I want to address. Habermas’s typology of rational action is not just an abstract classificatory scheme for placing actual interactions in one box or the other or between boxes (though Habermas insists that it must be able to do that too46). The distinction between communicative and strategic action is designed with further purposes of social theory in mind.

1.1.2 Communicative Rationality and Discourse One such purpose is to provide an account of the ways modern socie­ ties manage conflict and dissensus. As will become clearer in the following discussion, a central premise of Habermas’s theory of modernity is that the risk of dissensus—disagreement as to plans of action or as to claims about the world—increased with the demise of traditional forms of authority and traditional worldviews.47 Habermas distinguishes three basic alternatives for handling dissensus in simple interactions: attempting to resolve the disagreement communicatively, continuing the interaction under premises of strategic action, and breaking off the interaction entirely.48 Law, it will turn out, institutionalizes all three possibilities. It creates spheres of action in which individuals may pursue their interests without securing the agreement of others—whether by refusing to interact or by opting to interact strategically. And law also establishes procedures through which disagreements can be resolved more or less communicatively. The mechanisms of action coordination Habermas distinguishes in his typology of social action find analogues in his social theory of law. A second purpose of Habermas’s action theory is to rethink and expand the idea of rationality. Most familiar accounts of rationality—such as those found in economic theory, game theory, decision theory and rational choice theory—are keyed toward the problematics of instrumental or strategic action. Beginning from the notion of communicative action, Habermas hopes to develop a new conception of rationality, which he calls, unsurprisingly, “communicative rationality.” The idea of communicative rationality, like the idea of communicative action, depends centrally on the notion of criticizability. Claims to validity are essentially criticizable, and they may be supported or opposed with reasons and argument. The



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criticizability of validity claims creates the rational potential of communicative action—the possibility of communicative rationality. One way to develop the dimensions of Habermas’s notion of communicative rationality is to distinguish between everyday and more reflective forms of communicative action.49 Habermas’s example of the flight attendant’s request to the passenger is an example of everyday communicative action. If the passenger responds to the request by demanding reasons, the flight attendant likely will invoke the relevant federal regulation and explain that he has authority to enforce it. Should the passenger demand more justification than that—by, for example, questioning the FAA’s authority to pass such a regulation or by invoking a putative constitutional right to smoke at will—the flight attendant likely will switch over to strategic action, mentioning the sanctions for failure to comply and, if necessary, deploying those sanctions. And so, while the regulation offers a reason for compliance, and one not entirely reducible to the mere fact of potential sanctions, the role of rational criticism and justification is sharply circumscribed. The fact that a claim is criticizable in principle does not mean that criticisms and demands for justification always are in place. In everyday contexts, the pressures of action often limit the rational potential of communicative action. When removed from the pressures of immediate action, however, this rational potential may be developed more fully. Habermas refers to various forms of “argumentation” or “discourse,”50 in which participants pursue more methodically the task of criticizing and defending the claims to validity Habermas has identified. Here validity claims serve less as a means of coordinating participants’ goal-directed plans of action—as in everyday communicative action—and more as an explicit theme of communication and debate. Habermas introduces the idea of discourse through various “idealizations.” Participants in discourse must have equal opportunities to raise topics, arguments, and criticisms.51 The situation must exclude all force “except the force of the better argument,” and it must exclude “all motives except a cooperative search for the truth.”52 Habermas sometimes has referred to these idealizations as describing an “ideal speech situation,”53 or alternatively, an “ideal communication community.”54 While Habermas describes these conditions as “general pragmatic presuppositions” of discourse,55 he is aware that they are never completely fulfilled. Here it is a matter of more and less, and Habermas is willing to speak of “discourse” when these demanding conditions are “sufficiently fulfilled.”56 The ideal

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conditions are “presupposed” in actual communicative practice to the extent that significant deviations are a prima facie reason to question an apparent consensus that is reached—though these deviations are of course not sufficient to refute definitively a claim on which the participants have reached agreement. Discourses, Habermas says, are exceptional forms of communicative action—“islands in the sea of practice.”57 Nonetheless, Habermas claims, the institutionalization of discursive practices—in contexts such as scientific research, democratic procedure, and legal procedure—is a characteristic feature of modern societies. These developments Habermas interprets as a progressive realization of the rational potential implicit in communicative action. In this way Habermas recasts Max Weber’s theory of “rationalization,” focusing on the realization—though only a partial and selective realization—of communicative rationality. But for this task, Habermas needs a concept of society to supplement his typology of social action. The first “level” of his “two-level” theory pre­ sents society as the “lifeworld” of social groups and communicative actors.

1.2 l ife wor l d One would not choose the ungainly term lifeworld unless one wanted to mark a contrast with some other way of understanding the world. The term originated in the later work of the philosopher Edmund Husserl, who opposed it to the world as constructed by the “objective sciences.”58 The lifeworld, for Husserl, was the everyday, pretheoretical world of takenfor-granted certainties. This “realm of original self-evidences”59 provides the “grounding soil” for all human activities, including the scientific activity of constructing the “objective-scientific” world.60 Consistent with his method of transcendental phenomenology, Husserl sought to map the “formal,” “general,” and “invariant” structures of the lifeworld as such.61 This “ontology of the lifeworld,”62 left largely unpublished at Husserl’s death in 1938,63 speaks more directly to the concerns of transcendental phenomenology than to those of substantive social theorizing. But it offered a starting point for the work of Alfred Schutz, a social theorist and philosopher who was much influenced by Max Weber as well as Husserl.64 Schutz, who was more interested than Husserl in the methodology of the social sciences—and better informed as well65—attempted to describe the general structures of the everyday, prescientific world in a way that would be fruit-



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ful for social theory. Schutz, following Husserl, came to call this world of everyday action and experience the “lifeworld.”66

1.2.1 The “Structural Components” of the Lifeworld Habermas’s initial presentation of the lifeworld concept largely tracks Schutz’s analysis.67 The lifeworld is the unproblematic, taken-for-granted setting in which actors are located spatially, temporally, and socially. Actors encounter both an objective or natural world of things and a social world of other human beings. Their encounters with those worlds are shaped by their past experiences. But this lifeworld is essentially shared or “intersubjective,” not the creation or private preserve of individual subjects. The “segment of the lifeworld” in which particular actions or interactions take place is the “situation” of action. The situation is a “context of relevance” circumscribed by a “horizon” rather than by fixed boundaries: What is within the horizon of relevance, and thus included in the situation of action, depends on the “theme” of action and the actors’ “plans.” Actors interpret and define their situation, and formulate their plans, in reliance upon a “stock of knowledge”—socially conditioned and transmitted and differentially distributed among a society’s members. Action, on this view, is the “mastery of a situation,” or the realization of a plan.68 But even in this preliminary sketch of the lifeworld concept, Habermas introduces an important variation on Schutz’s account. Schutz links the lifeworld to the problematic of action in general—in fact, to the problematic of “subjective experience” in general, including (for example) imagining, dreaming, and fantasy, as well as action.69 Habermas, by contrast, introduces the lifeworld as the background not to experience in general, nor even to action in general, but as the background and “horizon” for specifically communicative action.70 The concept of the lifeworld, Habermas says, is “complementary to that of communicative action.”71 Accordingly, Habermas develops his concept of the lifeworld in terms familiar from his theory of communicative action. In interpreting their situations and pursuing their plans, he says, actors in “lifeworld” situations proceed consensually. Their actions presuppose, or are directed toward establishing, “common situation definitions.” On the basis of these common situation definitions, they seek to harmonize their plans of action. The mechanism for this cooperative process of interpretation and action is the mechanism of communicative action: mutual acceptance of claims to validity. With perhaps unnecessary flourish, Habermas describes the

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lifeworld as “so to speak, the transcendental site where speaker and hearer meet, where they can reciprocally raise claims . . . , and where they can criticize and confirm those validity claims, settle their disagreements, and arrive at agreements.”72 This “communicative-theoretical” recasting of Schutz’s lifeworld concept leads Habermas to further revisions. A main target is Schutz’s notion of the “stock of knowledge,” which Habermas interprets as the “cultural patterns of interpretation, evaluation, and expression” on which communicative actors rely “to negotiate a common definition of a situation” and compatible plans of action.73 Even understood in this communication-theoretical way, Habermas argues, the cultural “stock of knowledge” cannot be the only resource on which communicative actors rely. According to Habermas, the one-sidedness of the culturalistic concept of the lifeworld becomes clear when we consider that communicative action is not only a process of reaching understanding; in coming to an understanding about something in the world, actors are at the same time taking part in interactions through which they develop, confirm, and renew their memberships in social groups and their own identities. Communicative actions are not only processes of interpretation in which cultural knowledge is “tested against the world”; they are at the same time processes of social integration and of socialization.74

Thus, the lifeworld resources on which communicative actors rely, in interpreting their situations and harmonizing their plans, include group memberships and personal identities, as well as the cultural stock of knowledge.75 The items on this list are not drawn out of thin air. They correspond to the culture/society/personality schema that Talcott Parsons developed in American sociology.76 According to Habermas, culture, society, and personality are “the structural components of the lifeworld.”77 He defines these “components” as follows: I use the term culture for the stock of knowledge from which participants in communication supply themselves with interpretations as they come to an understanding about something in the world. I use the term society for the legitimate orders through which participants regulate their memberships in social groups and thereby secure solidarity. By personality I understand the competences that make a subject capable of speaking and acting, that put him in a position to take part in processes of reaching understanding and thereby assert his own identity.78

These initial definitions require some explication. First, with respect to the “society” component, Habermas’s terminological choice is confusing. He is, at this point, analyzing society as lifeworld, and thus it is peculiar



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to use the term society to designate a mere component of the lifeworld. The term institutional component79 might better express Habermas’s intention. The component “society,” Habermas says, is the system of social institutions80 that define group memberships and coordinate interaction through binding norms and institutionalized values. Generally Habermas includes within the societal component items such as the constitutional framework of state offices and central “legal institutions” like contract and property,81 as well as “the bases of constitutional law, the principles of criminal law and penal procedure, and all regulation of punishable offenses close to morality.”82 We will see, however, that for Habermas both the state and the law occupy a double status—he analyzes each in “system” as well as “lifeworld” terms. The “personality” component includes not just the speech- and actionrelated competences that Habermas mentions in the above definition but also motivations.83 Habermas, of course, is working at a high level of abstraction when he refers to competences and motivations as a structural component of the lifeworld, not just attributes of individual persons. What he has in mind is something like a social stock of typical personal competences and motivations, some subset of which individuals develop through processes of socialization and continuing social interaction. As with the distribution of knowledge, the distribution of these competences and motivations is far from uniform.

1.2.2 The Symbolic Reproduction of the Lifeworld This account of culture, society, and personality as structural components of the lifeworld is not just an abstract classification of the resources on which communicative actors rely. Habermas uses it to address the basic social-theoretical question of how a society reproduces itself—how, that is, it maintains itself through time, despite (or rather, through) changes in the content of cultural tradition, institutional structure, and personal competences.84 He distinguishes two aspects of social reproduction. The “symbolic reproduction” of society as lifeworld is the reproduction of the different components he has distinguished—culture, society, and personality. The “material reproduction” of society as lifeworld involves the “maintenance of the material substratum of the lifeworld.”85 Material reproduction implicates the “purposive” aspect of communicative action— “goal-directed interventions into the objective world”—while symbolic reproduction depends more on the aspect of mutual understanding.86

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To each of the components of society-seen-as-lifeworld, Habermas attributes a particular function in symbolic reproduction. “Cultural reproduction” consists in the transmission and renewal of cultural knowledge, so as to “secur[e] a continuity of tradition and coherence of knowledge sufficient for daily practice.” “Social integration” establishes social solidarity through shared norms and institutionalized values. In so doing, it coordinates interaction and “stabilizes the identity of groups to an extent sufficient for everyday practice.” “Socialization” operates to develop personal identities, “secur[ing] for succeeding generations the acquisition of generalized competences for action and see[ing] to it that individual life histories are in harmony with collective forms of life.”87 Unsurprisingly— because Habermas defines the lifeworld as the background for communicative action—these reproductive processes operate primarily through communicative action.88 Habermas’s typology of reproductive processes makes clear that the lifeworld components he distinguishes—culture, society, and personality— are interrelated. The reproduction of any one component, he says, contributes to the reproduction of the other two as well.89 And further, Habermas argues, any particular communicative interaction both draws on and helps reproduce each of the lifeworld’s components: In coming to an understanding with one another about their situation, participants in interaction stand in a cultural tradition that they at once use and renew; in coordinating their actions by way of intersubjectively recognizing validity claims, they are at once relying on membership in social groups and strengthening the integration of those same groups; through participating in interactions with competently acting reference persons, the growing child internalizes the value orientations of his social group and acquires generalized capacities for action.90

Nothing guarantees that the reproduction of culture, society, and personality will be successful. For that reason, Habermas’s typology addresses also the “manifestations of crisis” that appear with “disturbances” in the various reproductive processes. Here, too, Habermas sees the various lifeworld components as interrelated. Just as successful reproduction of one component contributes to the reproduction of the other two, Habermas argues, so does disturbance in any one of the reproductive processes impinge upon the other two.91 More important than the names Habermas assigns these nine crisis tendencies is the place that they collectively occupy in his critical social theory. They operate as indices for the “pathological” developments he diagnoses



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in contemporary societies. As we will see, the general thesis of Theory of Communicative Action is that the “rationalization of the lifeworld”—the realization of communicative rationality in culture, society, and personality— makes possible and necessary the development of economic and administrative systems that are “uncoupled” from the action-coordinating, socially integrating mechanism of communicative action. The “hypertrophic” development of these systems, Habermas argues, causes “the penetration of forms of economic and administrative rationality”92 into “communicatively structured areas of life,” 93 with resulting disturbances in cultural reproduction, social integration, and socialization. These crisis tendencies in the “symbolic reproduction of the lifeworld,” then, are the criteria by which Habermas identifies social pathologies. I will later suggest difficulties in Habermas’s argument for this thesis. For now, it is enough to note why Habermas might be attracted to this strategy of argument. The thesis’s premises seem normatively minimalist: He appeals not to freedom or justice or democracy or autonomy or some other value, but to functional necessity.94 And who can argue with functional necessity? The answer is that everyone can. As Habermas pointed out almost forty years ago, against then-dominant biological conceptions of social systems theory, it is extremely difficult to define, in an uncontroversial way, the equilibrium state and reproductive parameters for sociocultural systems.95 This observation calls into question whether Habermas’s strategy can be as normatively parsimonious as it first seems. To determine, for example, whether a process of cultural reproduction has been successful or pathological, one would have to decide (in Habermas’s terms) whether “the transmission and renewal of cultural knowledge” has “secured a continuity of tradition and coherence of knowledge sufficient for daily practice.” And to make this determination, one would have to take a position on some of the normative issues that, at first glance, were avoided by recourse to “functional necessity.” For example: Is a cultural tradition best “continued” when it has been preserved without substantial change or when it has been subjected to rigorous critical examination and transformation? One’s answer to this question will influence whether one sees, for example, revision of the literary canon as consistent with successful cultural reproduction or as pathological. Similarly, the question whether knowledge has been transmitted to a degree “sufficient for daily practice” may require the theorist to decide whose daily practice matters, or matters most, and what that daily practice should look like. How much does the ordinary citizen

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need to know about politics? About high culture? Whether one sees the present distribution of knowledge as normal or pathological is a matter of political controversy. Similar observations would apply to the other two reproductive processes Habermas identifies.96 Habermas, of course, is aware that diagnoses of social crisis cannot be uncontroversial. He would resist the suggestion, however, that the matter is simply a matter of the observing theorist’s politics. Instead, he suggests, one can speak of crisis to the extent that—and only to the extent that—a society’s members experience their situation as such.97 As Habermas acknowledges, this question of how members of a society experience social change requires empirical research.98 His own efforts, however, tend in a more strongly theoretical direction—toward formulating a hypothesis that could guide this empirical research.99 The hypothesis is based on what he takes to be a tension between the requirements of a “rationalized lifeworld” and the “imperatives” of the economic and administrative “systems.” Habermas’s argument thus depends on how he specifies the “rationalization of the lifeworld.”

1.2.3 The Rationalization of the Lifeworld In the history of social theory,100 the notion of “rationalization” is most closely associated with Max Weber. Weber’s introduction to his studies of the world religions101 mentions the following historical developments under the heading of “Occidental rationalism”: modern empirical and experimental science; systematic theology; a systematized, formalized, and predictable law; various developments in music, including Western systems of harmony, written notation, and innovations in instrumentation; the Gothic vault and dome in architecture; the technique of perspective in painting; the development and market circulation of printed literature; the modern university; specifically Western forms of bureaucratic administration, with technically and legally trained officials; periodically elected parliaments connected to a party system; the capitalist enterprise with its rational organization of wage labor; rationalized forms of economic calculation and action; capital markets; technological employment of scientific knowledge; and a rational vocational ethic (the Protestant ethic).102 The breadth of this list indicates the comprehensiveness of Weber’s notion of rationalization. But it raises questions as to how this list is to be ordered and whether “rationalization” bears the same sense throughout. Habermas imposes order on this list of developments by reading Weber through Parsons’s culture/society/personality schema103—the schema



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that organizes Habermas’s own account of the structures of society as lifeworld. He distinguishes, accordingly, among rationalization of the cultural tradition, rationalization of basic social institutions, and the rationality of personal motivations, competences, and dispositions. Following Weber, Habermas sees the rationalization of culture as a process of differentiation among “spheres of value”: science in the “cognitive” sphere, law and morality in the “evaluative” dimension, and autonomous art in the “expressive” dimension.104 This conception of the different cultural spheres corresponds closely to Habermas’s account of the various validity claims raised in communicative action. The correspondence is particularly apparent with respect to the cognitive and evaluative spheres: Science, Habermas notes, focuses on questions of propositional truth, and law and morality focus on questions of normative rightness. With respect to art, the fit is looser. Whereas the third validity claim Habermas attributed to communicative action was “sincerity,” the value standard he connects to art is “authenticity.”105 By “authenticity,” Habermas seems to mean authenticity in the expression of an artist’s subjectivity.106 In this way there is at least an analogical connection between the validity claims of “sincerity” and “authenticity.” Further, and again following Weber, Habermas finds in each of these dimensions, at the transition to modernity, a “cultural system of action” that institutionalizes discourse with respect to the relevant claim. The “scientific enterprise,” connected in large part with universities, professionalizes scientific inquiry. The “artistic enterprise” produces, distributes, and criticizes artistic and literary works. Religious associations specialize in questions of morality. Finally, with respect to legal questions, Habermas locates “the legal system,” which he understands to include “specialized juridical training,” professionalized scholarly discussion of legal issues,107 as well as “public justice.” In these ways, cultural rationalization realizes the rational potential in communicative action. Habermas approaches more warily Weber’s account of the rationalization of personality and society. For Weber, what a theory of rationalization must explain is the development of the modern bureaucratic state and capitalist economy, together with the methodically rational pattern of life conduct—the Protestant ethic of labor in one’s calling—that served the rationalizing developments in state and economy. According to Habermas, this explanatory strategy focuses too narrowly on the path modernization actually took and not enough on the rational potential left unexhausted. One reason Weber took this tack concerns his postulate of social-scientific value-freedom, which prevents him from giving systematic significance to his occasional comments that “rationalization,” as it actually has played

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out, has led to pathological and irrational consequences.108 Habermas, as a critical social theorist, is not burdened by that postulate. The other reason, according to Habermas, concerns limitations in Weber’s theory of action, and accordingly, in his theory of rationality. Weber lacked a concept of communicative action and communicative rationality. Both of these features of Weber’s approach, Habermas claims, led Weber to miss some of the senses in which modern societies have been rationalized and to pass over the question whether the project of rationalization, as it actually has unfolded, has been selective or incomplete.109 Three conditions must be satisfied, according to Habermas, before the reproduction of the lifeworld can be called its rationalization. The first builds on the idea of differentiation with which Weber approached the problem of cultural rationalization. Habermas presents the initial point of this rationalization process as one in which a mythically based cultural tradition reigns supreme, not only underwriting the interpretive schemes of a society’s members but determining social roles and group memberships, fixing a relatively concrete moral code, prescribing procedures and standards for political institutions, fixing the division of labor and limiting the extent of individual economic initiative, and determining from the outset who will be able to acquire which competences and skills.110 Just as the rationalization of culture involves the differentiation of three spheres of value, so the rationalization of the lifeworld as a whole involves the differentiation of the “components” culture, society, and personality. Society, or, the institutional order, differentiates itself from the cultural tradition through a “gradual uncoupling of the institutional system from worldviews,” with the result that “formal procedures for positing and justifying norms,” rather than mythic tradition, establishes the legitimacy of social institutions. The differentiation of the personality component appears in the “extension of the scope of contingency for establishing interpersonal relations”—that is, the greater possibilities for individual initiative in establishing social relations and acquiring competences and motivations. And to the extent the cultural tradition is disentangled from the operation of social institutions, “the renewal of traditions depends more and more on individuals’ readiness to criticize and their ability to innovate.” What Habermas means with this sketchy account is that the cultural tradition loses much of its prejudicial power over the course of social interaction: These trends can establish themselves only insofar as the yes/no decisions that carry everyday communicative practice no longer go back to an ascribed normative consensus, but issue from the cooperative interpretation processes of



Theory of Communicative Action participants themselves. Thus they signal a release of the rationality potential inherent in communicative action.111

The other two conditions Habermas sets for the rationalization of the lifeworld—a differentiation between form and content and an increasing “reflexivity” in the lifeworld’s symbolic reproduction—can be considered together in their effects on each of the three lifeworld components. For culture, the differentiation between form and content means that the “core, identity-securing traditions” lose the concreteness of mythical worldviews and develop into abstract basic values (such as autonomy, liberty, and the like) as well as formal procedures and structures for communication and argumentation. The increased “reflexivity” of cultural reproduction arises with the institutionalization of the cultural systems of action Weber mentioned: the academy and scientific laboratory, institutions of professional legal training and scholarship, religious associations, and the community of artistic creation and criticism. These institutions and practices subject the cultural tradition to ongoing criticism and revision. Culture is not merely reproduced, in the sense of being carried forward unchanged; it is critically appropriated and discursively transformed. In the institutional order, the trend toward a differentiation between form and content brings general moral and legal principles that are “less and less tailored to concrete forms of life.”112 Here Habermas might have in mind conceptions of the moral agent and legal person that increasingly abstract from particular characteristics, such as status, class, religious affiliation, ancestry, and eventually race and sex, as well as the sense that particular norms need to be justified not just traditionally but in terms of more general principles. Here, too, Habermas emphasizes the development of formal procedures for creating and justifying norms, with democratic procedures figuring as particularly important. With an implicit contrast to Weber’s more sober assessment of modern democracy,113 Habermas writes: Mead and Durkheim . . . stress the evolutionary significance of democracy: democratic forms of political will-formation are not only the result of a power shift in favor of the carrier strata of the capitalist economic system; forms of discursive will-formation are established in them. And these affect the quasinaturalness of traditionally legitimated domination in a similar way, even as modern natural science, jurisprudence with specialized training, and autonomous art break down the quasi-naturalness of ecclesiastical traditions.114

The democratic process is “reflexive,” in two senses. First, the creation and justification of norms is itself normatively regulated. Second, the

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democratic institutionalization of political discourse allows for a reflective, or critical, attitude toward traditional norms and institutions. In the “personality” component of the lifeworld, the separation between form and content brings an increasing emphasis on “formal competences.” With the universalization of at least basic formal education, individuals acquire generalized competences—reading and quantitative skills, for example—that are applicable in many different settings, not just in a particular task or craft. The professionalization of formal education, together with the development of social-scientific disciplines surrounding child rearing and education, counts as an increased “reflexivity” in the socialization process. Here, too, traditional patterns increasingly are subjected to critical scrutiny and revision.115 In all these ways, according to Habermas, the symbolic reproduction of the lifeworld’s “structural components” has brought a communicative rationalization, or, the “release of the rationality potential in communicative action.”116 Running through this account is an emphasis on three related points. First, with the communicative rationalization of the lifeworld, social interaction comes to depend more on communicatively achieved consensus, as opposed to consensus prescribed in advance by tradition. Second, this rationalization has meant an increasing importance of discourse and not just naive or unreflective communicative action. Third, the rationalization of the lifeworld has brought the institutionalization of discourse, not just its episodic eruption.

1.2.4 The Material Reproduction of the Lifeworld and the Limits of the Lifeworld Perspective Habermas’s account of society as lifeworld is not yet complete. The notion of communicative rationalization is part of the more general notion of the lifeworld’s “symbolic reproduction.” In introducing the notion of symbolic reproduction, however, I mentioned that Habermas distinguishes it from the “material reproduction” of society viewed as lifeworld. By the latter, Habermas means chiefly the organized production, distribution, and consumption of goods and services, as well as the society’s external and internal defense.117 He has argued that symbolic reproduction operates through communicative action, and particularly, through the “communicative acts” that coordinate communicative action—paradigmatically, speech acts that raise, criticize, defend, accept, or reject claims to truth, rightness, or truthfulness. Material reproduction, he says, implicates the



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“purposiveness”—the realization of plans through interventions in the world—that is the other aspect of communicative action, beyond reaching mutual understanding.118 Material reproduction, then, may involve communicative action, particularly in the form of coordinated, cooperative social labor,119 but not necessarily or exclusively. It may involve, also, the success-oriented conduct he called “strategic action.”120 This connection between strategic action and material reproduction raises an obvious question. Habermas, we saw, has defined the lifeworld in terms of specifically communicative action. Thus to the extent that material reproduction depends on strategic action, it would seem to be inaccessible, as a matter of definition, from the “lifeworld” perspective Habermas has been developing. Habermas, however, does not move quite so quickly. The theoretical approach that sees society as lifeworld does not “simply filter[] out” questions concerning material reproduction.121 Further, despite Habermas’s definition of the lifeworld in terms of communicative action, he allows in a number of passages—albeit usually in the form of an afterthought or an admission—that strategic action, too, can be analyzed in “lifeworld” terms.122 The concession is wise, although underplayed. Strategic action draws on the same “lifeworld” resources as does communicative action. As Habermas has acknowledged, except for the “limit case” of a criminal demand, even strategic interaction presupposes the parties’ acceptance of legal norms that exclude some strategies or tactics and permit others, and often strategic competitors recognize extralegal norms as well. “Selfinterested action,” Habermas says, “has always been fused with, or limited by, a normative order”123—the normative order that Habermas calls the “societal component” of the lifeworld. Equally evident is the fact that in interpreting their situations and formulating their plans, strategic actors rely on the “stock of knowledge” that Habermas describes as the cultural tradition. Certainly, also, strategic action both relies on and develops the competences and motivations Habermas analyzes under the heading of “personality.” None of this is surprising. As Schutz suggested, the “lifeworld perspective” refers us to the problematic of action in general—even if Habermas is right that communicative action carries the main burden in reproducing what he calls the symbolic structures of the lifeworld. Habermas ultimately does conclude that the analysis of material reproduction calls for a different kind of approach, based on a modified version of Talcott Parsons’s social systems theory. But the argument is not simply a matter of drawing a conclusion from a definition of the lifeworld that

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excludes strategic action. Habermas in fact presents two sets of arguments for why the “lifeworld” or action-theoretical perspective must be supplemented with a systems-theoretical approach. The first concerns what he calls “the fictions of hermeneutic idealism.” The second (and more persuasive) addresses more directly the organization and operation of modern complex societies. A theoretical approach that confines itself to the lifeworld concept, Habermas says, falls prey to three “fictions.” The first is the idea that actors are autonomous in a very strong sense: They control their situations of action and the consequences of their actions. In this picture, society consists in relations fashioned “with the will and consciousness of adult members” and fashioned in that way only. The second fiction is that “culture is independent of external constraints.” From the perspective of a “member[]” of a lifeworld, Habermas says, culture is so fundamental to the interpretation of situations and the formulation of plans that “it is strictly meaningless . . . to inquire whether the culture in whose light they deal . . . is dependent on anything else.” The third fiction is that communicative actors “encounter one another in a horizon of unrestricted possibilities of mutual understanding,” assuming necessarily “that they could, in principle, arrive at an understanding about anything and everything.” From this perspective—“the internal perspective of participants [in] a sociocultural lifeworld”—the process of reaching understanding is “basically transparent,” and “no force can gain a footing.” These three “fictions”— the autonomy of actors, the independence of culture, and the transparency of communication—are according to Habermas built into the selfunderstanding of both everyday actors and social theorists who examine the world from everyday actors’ perspective. And because they are fictions, some approach must be developed to supplement the action-theoretical analysis of society as lifeworld.124 Perhaps these arguments might be telling against some versions of interpretive sociology but not against the approach Habermas has developed. The idea that actors are purely autonomous and fashion their own world conflicts with Habermas’s initial account of the lifeworld as the taken-forgranted, pregiven background of action that remains largely invisible to social actors. It conflicts also with his admissions elsewhere that we can comprehend unintended consequences within the “lifeworld” approach.125 The idea that culture is independent of everything else conflicts with Habermas’s account of the way in which the three “structural components” of the lifeworld are interrelated, both in their capacity as resources for social



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action and in their reproduction. And finally, the idea that communication is transparent and forceless conflicts with Habermas’s account of strategic action—particularly his account of the deception or self-deception he classifies as concealed strategic action—together with his admission that strategic action is not excluded from the lifeworld. Habermas’s account of these “fictions of hermeneutic idealism” suggests a thinker eager to move on with a systems-theoretical approach—for reasons we still have not discovered—not real difficulties in the theoretical approach we have considered so far. The other set of arguments for supplementing the lifeworld approach centers around the problem of social complexity. The communicative rationalization of the lifeworld is part of a trend toward greater complexity. If agreement is not secured in advance by tradition, but depends on the interpretive and discursive achievements of participants, then the possibility of agreement becomes more burdensome and risky.126 The problem of coordinating action becomes correspondingly more difficult. One way in which modern societies have managed this greater risk of dissensus, according to Habermas, is through the development of generalized “media” such as money and power.127 The systems that develop around these media, Habermas argues, coordinate action and integrate society in a way fundamentally different from the way those functions are fulfilled through communicative action and consensus concerning validity claims. The usual way Habermas introduces this difference is through the distinction between action orientations and action consequences.128 Communicative action, with its “mechanism of mutual understanding,” “harmonizes the action orientations of participants.”129 By this he means that communicative actors are oriented toward reaching agreement with each other, or (if an agreement already has been reached) they are oriented toward that agreement. The interaction is coordinated through this agreement. And at a more encompassing level, society itself is integrated through a general consensus about institutionalized norms and values. So it appears, at least, from the perspective of a theory of communicative action. According to Habermas, interactions steered by the “media” around which the economic and administrative systems develop—money and power—are coordinated through action consequences. By this he means that actors in, for example, a monetary transaction may be indifferent whether they share some mutual commitment to norms or values. Each participant is oriented toward her own success. In that sense, then, the actors’ orientations are not, as in the case of communicative action, congruent or even

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necessarily complementary. What coordinates interaction in this situation, and particularly what binds together a network of market transactions, is the “functional[] intermeshing of action consequences.”130 Habermas calls this form of societal cohesion “system integration,” as opposed to the “social integration” that binds a social lifeworld together through normative consensus.131 To understand the way in which system integration operates through “nonintended interconnections” of action,132 Habermas argues, we need some version of systems theory. Surely Habermas is right that we cannot understand the operations of a complex society if we see it entirely from the perspective of actors, their intentions, and their orientations. As he suggests, markets, and perhaps other mechanisms as well, coordinate interaction and integrate a society in a way irreducible to communicative agreement and a consensus about norms and values. Two difficulties remain, however. First, even at this point, an abstractly polarizing tendency appears in Habermas’s conception of the relation between the lifeworld, on one hand, and the “media-steered” economic and administrative systems, on the other. He describes the market as “norm free,”133 as contrasted with the normatively dense contexts of the lifeworld. In the market, to be sure, one is free of various normative restrictions that would be binding in a friendship or family relation. But the idea that markets (and also, we will see, the “administrative system”) are norm free is simply wrong—as Habermas implicitly acknowledges when he describes market relations, and the market as a sphere of interaction, as “first generated by”134 or “first constituted in”135 formal law. Habermas will try to incorporate this acknowledgment by arguing that the media of money and power must be “anchored in the lifeworld”—secured, that is, by positive law. But this solution understates the extent to which economic and political processes are not describable, on their own terms, as “norm free.” This difficulty, I will argue, undermines Habermas’s model of the system/lifeworld relation that he takes to characterize modern societies. Second, the fact that Habermas’s “lifeworld” model needs to be supplemented does not determine what approach should supplement it. It is hardly obvious that social systems theory, rather than more standard approaches in economic theory and political science, offers the key that can unlock the workings of the economic and administrative systems.136 For purposes of presenting Habermas’s basic concepts, however, I will concede that point. Still, this concession settles very little. Habermas sometimes understands the term systems theory very broadly, to the point of classify-



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ing Marx, Adam Smith, and even Hobbes as systems theorists.137 Neither are matters settled if we focus on more contemporary versions of social systems theory. Habermas relies on the version articulated by Talcott Parsons, the dominant figure in American sociology from at least the 1950s until his death in 1978. As I will suggest in the final section, however, another and more powerful variant of social systems theory recently has been developed—Niklas Luhmann’s “autopoietic” theory.138 Habermas’s development of a systems-theoretical approach is thus selective, and I will argue in Chapter Four that he could avoid some of the difficulties in which his reliance on Parsons places him. In this respect, my argument goes beyond earlier criticisms of Habermas’s system/lifeworld model that focused (as did Habermas) only on Parsonsian systems theory.139

1.3 s ys t e m 1.3.1 Open Systems Theory and Parsons’s “Interchange Paradigm” The best-known version of social systems theory—and the one from which Habermas borrows—is the “open systems” approach, first developed during the 1960s under the influence of advances in cybernetics and information theory. This approach conceives of systems as adaptive and open to their changing environments. System and environment are engaged in ongoing “exchange” or “interchange,”140 through which the system receives inputs from its environment, processes them, and converts them into outputs that are fed back to the environment. Information about the outputs’ effects on the environment and the system flows back into the system, completing the “feedback loop.”141 This model becomes more complex when we consider that a system’s environment typically includes other organized systems. The functionalist sociological systems theories of the 1960s and early 1970s incorporated this insight, presenting modern societies as differentiated into a plurality of subsystems142—such as the political system or the economic system—each of which performs some particular social function. Accounting for the input and output relations among the various social subsystems has been a basic problem for functionalist systems theory. The most highly developed and influential version of this approach appears in the later work of Talcott Parsons. Parsons argues that any system of action must fulfill precisely four functions: “adaptation” (A), “goalattainment” (G), “integration” (I), and “latent pattern-maintenance” (L).

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The functions listed in this “four-function paradigm,” or “AGIL” schema, correspond to what Parsons’s earlier work had characterized as the four basic elements of action: means or resources, goals, norms, and values, respectively.143 To each of the four functions corresponds a social subsystem. The economy, on Parsons’s account, serves the adaptive function (A); the “polity” serves the goal-attainment function (G); the “societal community” serves the integrative function (I); and (for lack of a better term) the “pattern maintenance subsystem” serves the function that its name suggests (L).144 Parsons’s “interchange paradigm” addresses the issue of how these functional subsystems are interrelated. To each subsystem he attributes a “generalized medium of interchange”145 that both structures the subsystem’s “internal” operations and controls its input/output relations with other subsystems. Parsons’s strategy was to begin with the idea of money as the medium for the economy. Then, working largely by analogy to the case of money, he identified media for the other three social subsystems: “power” for the polity, “influence” for the societal community, and “valuecommitment” for the pattern-maintenance subsystem. Each interchange between subsystems involves, according to Parsons, a “double” exchange, with an input and an output accomplished through each of the two system’s respective media. Thus, for example, the interchange between economy and polity involves four boundary-crossing inputs and outputs, two mediated by money and two by power. The same pattern obtains with respect to the other five intersystem relations, generating a total of twentyfour media-controlled interchanges.146 This interchange model of functional subsystems and media-controlled exchange is not, to most, an intuitive way of looking at the social world. In particular, it is not a map of society, as if seen from the air, on which we could locate particular organizations or institutions by placing them securely in one subsystem or another. Particular organizations, like business firms, may be specialized with respect to one of the four functions. But none belongs exclusively to any one subsystem. As the Parsons-influenced theorist Jeffrey Alexander puts it, “There are economic aspects of churches and political aspects of factories.”147 The same point holds at the level of the subsystems themselves. The political system, on Parsons’s scheme, is specialized with respect to the function of realizing collective goals.148 But in fulfilling this function, it draws on “inputs” from the other social subsystems. What the interchange paradigm is designed to convey is the “dimensional pressures” that societies face and the functions they must fulfill.



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Understood in that way, Alexander concludes, the model “encompasses the full multidimensional complexity of real social causality” because “the analysis of any single subsystem . . . cannot be isolated from the analysis of any other.”149 Parsons’s further development of the interchange model was still more ambitious in scope. The account considered so far covers only the interchange among subsystems of the social system. The social system, however, is itself a subsystem of a more encompassing system that Parsons calls the “general action system.” An obvious question is whether the same principles developed at the level of the social system apply at the level of the general action system. Parsons concludes that they do. According to Parsons, the four-function paradigm, connected as it is to the elements of action in general, applies to any system of action. In fact, Parsons generalizes the four-function paradigm still more ambitiously. Properly understood, he argues, a system of action is just a special case of a living system.150 And according to Parsons, the four-function “AGIL” paradigm is grounded in “the essential nature of living systems at all levels of organization and evolutionary development, from the unicellular organism to the highest human civilization.”151 On that basis, Parsons came to consider the fourfunction paradigm, as well as the interchange paradigm that accompanies it, wholly general in its application. Parsons and his followers set about applying the four-function paradigm at various levels of generality. The subsystems of the “general action system” include, besides the social system (I), the cultural system (L), the personality system (G), and the (oddly named) “behavioral organism” (A).152 At this level, too, Parsons gave names to the various media, charted the various double interchanges, and blocked out the other categories that the four-function paradigm requires.153 In his last years Parsons ascended another level of generality to address the so-called human condition, where the general action system (I) takes its place alongside the “physicochemical system” (A), the “human organic system” (G), and (the cryptically named) “telic system” (L).154 Here too, Parsons named the media, charted the “double interchanges,” and so forth.155 But if the four-function paradigm is wholly general in its application, then it must operate in the other direction as well—at the level of subsystems for the social system’s subsystems, and then at the level of the subsystems of those subsystems, and so on. The AGIL schema is endlessly self-replicating, and the project of naming functional subsystems, generalized interchange media, and media-controlled interchange relations could go on forever.156 At some

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point, however, it becomes a senseless exercise—as even some of those strongly influenced by Parsons have concluded.157 And one has to wonder about the formalism of a theory in which the same four-part differentiation appears, and the same principles apply, whatever the level of analysis. Habermas’s response to Parsons’s systems theory is generally critical. He has no particular use for the AGIL schema, nor does he follow Parsons in his ascent from the social system to the general system of action—let alone the level of the “human condition.”158 The problem with Parsons’s “general system of action,” according to Habermas, is that it presents culture, society, and personality—Habermas’s “structural components of the lifeworld”—as media-steered, boundary-maintaining systems, analogous in structure to state and economy. Parsons totalizes systems theory. Habermas argues that its explanatory potential is limited. The question for him is how to determine the relative rights of the systems-theoretical and “lifeworld” perspectives. Habermas pursues this question by examining Parsons’s theory of “generalized interchange media.” He focuses on Parsons’s discussion of the four media at the level of the social system—money, power, influence, and value-commitment. Habermas follows Parsons in taking money to be the exemplary case of a medium and in then considering whether the other proposed media are sufficiently similar in their structure and operation. For reasons we will soon explore, Habermas ultimately concludes that only money and power are genuine interchange media—or, to use his preferred (if peculiar) term, genuine “steering media” (Steurungsmedien).159 For this reason, he will conclude that only the economic and administrative systems are “media-steered” systems. This will leave him with the question of how to understand the relation between the open, adaptive, media-steered, functionally differentiated economic and administrative systems, on one hand, and the lifeworld, on the other. That will be the most serious difficulty in Habermas’s “twolevel” theory of society.

1.3.2 “Steering Media” Parsons first developed the idea of money as the economy’s interchange medium in his collaborative work with Neil Smelser, Economy and Society (1956). In a series of essays published between 1963 and 1968, he extended the notion to the other three subsystems of the social system.160 Throughout these essays, money remained the paradigmatic interchange medium,



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with language emerging as a point of further comparison. Habermas’s account of Parsons’s medium concept distills from these essays four aspects of the money medium that Parsons emphasizes: its “structural features,” its “structure of claim and redemption,” its “qualitative properties,” and its “system-forming effects.” Habermas takes these aspects of money to be defining criteria for his notion of a “steering medium”—his version of Parsons’s “generalized interchange medium.” For our immediate purposes, the first two features are most relevant. By the “structural features” of a medium, Habermas is referring, in the first instance, to what Parsons calls the medium’s “code.” Parsons conceives of media codes by analogy to ordinary language: They allow the transmission of semantic content, governed by syntactical rules for the medium’s use. In fact, Parsons says, money as a medium “is a very specialized language.”161 A medium’s code symbolizes a “generalized value” that can be presumed meaningful for all who will deal with the medium in “standard situations.” For money, the standard situation is the buying and selling of economic goods, with actors pursuing their own interests.162 The generalized value, of which money is both expression and measure, is “utility.”163 Parsons conceives of money’s circulation as the sending of “messages,” meaningful in terms of the medium’s code, that are designed to motivate the recipient to accept an “offer.” The motivating force is the prospect of sanctions, whether positive or negative, that will affect the recipient’s relevant interest. Money, Parsons says, operates through “inducement,”164—the prospect of positive sanctions connected to the generalized value of utility.165 Like ordinary language as a medium, Parsons observes, money as a medium has no intrinsic value. Instead, it presents a “nominal value” (exchange-value) that can be “redeemed” for a “real value” or “intrinsic satisfier” (typically, the use-value of a good or service). Ultimately the monetary medium is “backed by reserves”—whether by gold or other precious metals, as in bygone days, or by other means, as at present.166 Similarly, Habermas notes, linguistic utterances may “express knowledge,” but they are not themselves “knowledge.” They are the medium through which participants reach communicative agreement, and the claims raised in utterances are the “measure” of achieved agreements. Likewise, Habermas contends, communicative agreements are “backed by potential reasons” that can be adduced, if necessary, to “redeem” claims raised in communicative action.167 Habermas emphasizes, however, the differences between ordinary language and money as media. Two are particularly important for his further

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argument. First, the redemption of a claim in communicative action involves the giving of reasons that can withstand rational criticism. The redemption of a monetary claim or offer does not. The acceptance of a claim in communicative action, therefore, may be “rationally motivated”—in the sense of “communicatively rationally motivated”—whereas the acceptance of a claim or offer in a money-mediated interaction is motivated, in Habermas’s terminology, only “empirically,” by the desire for a positive sanction. Money thus allows actors to circumvent the process of reaching agreement about contested claims to validity. Their interaction is coordinated not by communicative consensus but by the consequences of their respective successoriented calculations and their mutual strategic influence. Habermas relies on the distinction between rational and empirical motivation, and the notion of media as “replacing” the process of reaching understanding, as his main criteria for “steering medium” status. The idea that steering media replace communicative consensus formation will be part of his argument that system and lifeworld in modern societies are “uncoupled.” Second, as Parsons notes, money and the process of exchange must be “institutionalized” if they are to enjoy a secure basis of trust. The “backing” of the monetary medium itself occurs through the guarantees of national and international governmental and financial institutions. Contract law and property law institutionalize and regulate the process of exchange.168 No such institutional or legal guarantees are necessary for the medium of ordinary language. Habermas sees this difference as indicating that while ordinary-language communication is always already located in a lifeworld context, the medium of money must be institutionally “anchored in the lifeworld”—specifically in the institutional and legal complex Habermas calls the “society” component of the lifeworld.169 This point also will be significant to Habermas’s understanding of the relation between system and lifeworld. The other “features” Habermas discerns in Parsons’s account of money concern its “qualitative properties” and its “system-building effects.” Money’s relevant qualitative properties are that it is precisely measurable, alienable in specific amounts, and capable of being stored. The first two properties allow money to operate as an objective, context-independent measure of value in rationally calculated action. Money’s alienability allows it to serve as a circulating medium.170 Its capacity for being stored increases actors’ freedom to pursue their economic interests rationally by shopping around, waiting for favorable terms, and saving or investing.171 Under the heading of “system-building effects,” Habermas has in mind Parsons’s re-



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marks about media inflation and deflation—changes in the relation between nominal and real value—and money’s “self-referential extension,” in the form of markets for money (that is, capital markets).172 The question Habermas now poses is whether, based on the model of money as medium, any of Parsons’s other candidates—power, influence, or value commitment—qualify as genuine “steering media.” According to Habermas, power qualifies, but the others do not. With the concept of power, as with the concept of money, Habermas follows Parsons’s lead in the first instance. Parsons sees parallels between power and money in terms of their “structural features.” Like the money code, the power code represents a “generalized value,” which Parsons calls “effectiveness” in attaining collective goals. It operates in a “standard situation” of “following imperatives.” As with the parties to a monetary transaction, the issuer of the imperative and the person to whom it is directed are understood to take an “objectivating” or “success-oriented” attitude toward one another.173 The “message” or “offer” associated with power is, as was the case with money, connected to a characteristic sanction that is to motivate the hearer in the interaction. The difference here is that while the sanction associated with money’s “inducement” was positive, the sanction associated with power’s “deterrence” is negative—the threat of unpleasant consequences in case of disobedience.174 Habermas sees parallels also in the “structure of claim and redemption” associated with the two media. Like money, Parsons says, power has no intrinsic value.175 The real value for which the power code stands is the attainment of collective goals. The ultimate “backing” for power is disposal over the means of force. In these respects, Habermas claims, Parsons is right to see power and money as analogous.176 In other respects, Habermas acknowledges dissimilarities between power and money. Power is less calculable than money. There simply is no power-related equivalent for the price system, and in fact, Habermas allows, “It is impossible to quantify power.” Although power can circulate, it “cannot circulate in so unrestricted a manner as money.” Habermas thinks this is so because power, which in a modern political system is supposed to attach to offices rather than persons, nevertheless tends to “get bound up symbiotically with the person of the powerful”—thus, for example, the advantage of incumbency. Actually, and more to the point, even if power attaches only to offices rather than persons, it is in that respect also considerably less alienable than money. Political power may not be sold or disposed of or given away, in the same way that one may sell a piece

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of property. Nor, Habermas points out, is there a reliable way to deposit power—even if we can interpret an election as, in some sense, a deposit of power from which the incoming administration may draw. Power cannot be stored, without use, to the same extent and with the same security as money. Nor can one speak of power inflation or deflation to the same degree, or with the same precision, as with respect to the money medium.177 Habermas emphasizes, finally, a relevant difference between the ways in which money and power are, as he puts it, “anchored in the lifeworld.” Like money, power must be legally institutionalized, although through public law rather than private law. Public law organizes a hierarchy of offices that prescribes the terms of access to political power and channels the flow of political decisions. The difference, according to Habermas, is that for power, something more than this legal institutionalization and the “backing” of physical force is required. Power must be “legitimated,” and that means that its exercise remains connected to “the recognition of normative validity claims.” This “anchoring” of the power medium is “more demanding” than the anchoring of money, which needs no legitimation beyond its legal institutionalization.178 The reason for this asymmetry in “normative anchoring,” according to Habermas, concerns a difference in the “standard situations” of the two media. In the case of money, parties in the “ideal-typical exchange relation” meet each other on equal terms. Neither has the power of command over the other, and neither can insist upon the other’s participation. In the case of power, by contrast, the standard situation is one in which one party both commands and has disposal over the means necessary to enforce compliance. Parsons sees that, for power to serve as a stable medium, it must be directed toward collective goals. And yet, Habermas observes, if the power holder is able to define “which goals are going to count as collective,” that determination must be contestable by those subject to power. Seemingly on the verge of declaring that the medium of power implies democracy, Habermas pulls back, allowing for the possibility that a tradition-based consensus rather than democratic procedures might provide the requisite legitimation.179 Still, Habermas sees the significance of his insistence that power must be legitimated. He invokes the distinction between “simple imperatives” and “normatively authorized requests” that he made in differentiating communicative from strategic action. And, aware that he has classified “normatively authorized requests” as cases of communicative action, Habermas nevertheless suggests that “power as a medium evidently retains something of ” the normatively authorized request. Here Habermas



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comes very close to describing “power-mediated” interaction as communicative action. But Habermas stops short of this description. And despite the fact that so many of his comparisons between money and power produce more differences than similarities, he pronounces power a “steering medium” alongside money. This judgment is somewhat surprising. What it indicates is that the various factors Habermas mentions as criteria for media status are not equal in importance. Habermas seems to rely most heavily on two general similarities between money and power. The first is that power, like money, needs to be legally institutionalized for the medium to enjoy a secure basis of trust. That factor was the reason he resisted describing language as a “medium” in the sense that money is a medium, and as noted below, it is one of the main reasons he rejects Parsons’s two other proposed media, influence and value commitment. The second parallel between money and power on which Habermas relies concerns the “standard situations” for each medium’s operation. In both cases, Habermas describes the standard situation as involving more or less calculating, success-oriented interaction that allows actors to circumvent the process of reaching consensus over contested validity claims. In the standard situation of power’s exercise, the directly relevant reasons for compliance are the potential sanctions over which the power holder has disposal. The fact that power ultimately refers back to a legitimating consensus does not mean that the motivation for compliance, in particular instances of power’s exercise, is “rational” rather than “empirical.” The system as a whole must be legitimate for power to be a stable medium. The actual exercise of power, however, often operates without detailed normative justification being given or requested. Habermas’s classification of power as “steering medium” seems to me doubtful. But rather than belabor the similarities and differences between money and power, it makes sense to see what he can make of his decision to classify power as medium and to see what effects his reservations about this decision have on his account of the system that develops around the power medium. These matters will become apparent when I turn to Habermas’s model of the relation between system and lifeworld. Parsons’s remaining two media for the subsystems of the social system— influence and value commitment—can be handled more briefly. Habermas concedes that we can find names for these proposed media’s “standard situations,” “generalized values,” “nominal claims,” “real values,” “reserve

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backing,” and the like, that formally will parallel the account Parsons gives of money and power. But the dissimilarities to money, and also to power, weigh against conceiving influence and value commitment as “steering media.” Both influence and value commitment are less susceptible than either money or power to calculation, alienation, and storing. Both “remain strongly tied to persons and particular contexts,” and thus neither seems well described as a circulating medium. Further, the “reserve backing” Parsons designates for these proposed media—cultural tradition and values— are, in Habermas’s view, better understood from a “lifeworld” perspective than from a systems-theoretical angle. Habermas, in fact, has classified the cultural tradition as a component of the lifeworld, and he has described values as relevant to both the culture and personality components of the lifeworld. The same is true of the “real values” Parsons nominates for influence and value commitment: “reasons for convictions” and “justifications for obligations.”180 Habermas, in short, argues that both influence and value commitment are better analyzed through a theory of communicative action rather than through systems theory. Unlike money and power, influence and value commitment do not replace the coordinating mechanism of communicative consensus. Both influence and value commitment, on Parsons’s account, implicate reasons and justifications, not just sanctions, and thus for each we can speak of (communicatively) rational rather than empirical motivation. Finally, Habermas notes, the forms of institutionalization Parsons proposes—“prestige orderings” and “moral leadership”—are not legally secured, and in fact they are not really institutions at all.181 For these reasons, Habermas maintains, we have no reason to posit either influence or value commitment as “steering media.” Still, Habermas allows, both influence and value commitment represent “special cases of consensus formation in language.” In the standard situation of each—“giving advice” and “moral appeals,” respectively—one party has special competence or authority. The other party trusts that the specially competent or authoritative party could provide reasons sufficient to justify the relevant claim, without demanding the reasons or subjecting them to criticism. In this way, “influence and value commitment are . . . forms of generalized communication that bring about a reduction in the expenditure of energy and in the risks attending mutual understanding.” They do not replace mutual understanding in its coordinating role “but only provide it with relief through abstraction from lifeworld complexity.”182



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Such is Habermas’s account of “steering media.” Money and power, and these only, are media around which “systems,” in Habermas’s sense, can be differentiated. It should be clear, however, that we still do not know what “systems” are “in Habermas’s sense.” We need to know more about the “internal” structure of the systems he identifies, as well as much more about how Habermas hopes to link his “lifeworld” account of society and his systems-theoretical account. He addresses both issues in his account of the “uncoupling of system and lifeworld,” to which I now turn.

1.3.3 Uncoupling of System and Lifeworld Each of the two methodological approaches I have considered so far describes the development of modern societies as a process of differentiation. From the perspective of the theory of communicative action, Habermas sees the differentiation of the lifeworld’s “structural components” as an essential aspect of the lifeworld’s rationalization. From the perspective of systems theory, Habermas describes the operation of two “steering media” around which the economic and administrative systems differentiate. But from what do these systems “differentiate,” other than from each other? Habermas describes the “anchoring” of the steering media “in the lifeworld,” and so presumably system and lifeworld are differentiated. But beyond this vague notion of “anchoring,” what relation might obtain between society seen as lifeworld and society seen from the point of view of systems theory? So far I have presented the two methodological approaches almost entirely separately. Each, in Habermas’s view, accounts for some aspects of a modern society, but if we try to think of either as a model of society as a whole, we see that in each account Habermas leaves a blank spot that needs to be filled in by the other approach. The “lifeworld” perspective, Habermas says, is inadequate to account for society’s “material reproduction,” which he sees as carried out through the economic and administrative systems. To understand the structure and operation of these systems, Habermas claims, we need a systems-theoretical approach.183 But that systems-theoretical approach, Habermas maintains, cannot adequately grasp the “symbolic structures of the lifeworld.” To understand those symbolic structures, we need the notion of communicative action and its complementary concept of the lifeworld. Habermas has set up his accounts of the two approaches so that they appear to be mutually complementing.

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With the notion of the “uncoupling of system and lifeworld,” he tries to bring them together into a single model of society. Habermas describes the “uncoupling of system and lifeworld” as a “second-order process of differentiation.”184 By this he means that his account of this uncoupling treats the differentiation of the economic and administrative systems, and the differentiation of the lifeworld’s structural components, as at the same time a further process of differentiation—the differentiation of system from lifeworld.185 This notion of differentiation of system from lifeworld may seem an obvious consequence of characterizing state and economy as “systems” that, qua systems, are differentiated from their environments. And, as I suggested, it seems to bring together two different but complementing theoretical paradigms. But what Habermas accomplishes through his notion of “uncoupling” is not so much the integration of the two paradigms as the marking of a boundary between system and lifeworld that gives each approach its own turf. To the systemstheoretical approach, Habermas assigns the domains he calls “systems”— the economy, and also the state administration. To the approach that is based in a theory of communicative action, he grants the domain that he calls “the lifeworld.” And finally, it will become clear, Habermas analyzes the relations between these domains within a systems-theoretical frame of reference. Habermas locates the uncoupling of system and lifeworld within an ambitious theory of social evolution. His sketch of this theory traces the development of exchange and power relations from simple “tribal” societies to modern societies.186 At the initial point of this evolutionary process—“small, prestate societies” in which kinship is “something like a total institution”—Habermas discerns an “interweaving of system integration and social integration.” As we travel along the social-evolutionary path, however, the two forms of integration pull apart. Described systemstheoretically, each stage is marked by a new “mechanism of system differentiation” that increases the society’s complexity.187 Described in “lifeworld” terms, the transition to each stage depends on the institutionalization of these mechanisms of systems differentiation.188 Particularly important in this evolutionary process is the development of law and morality, which Habermas analyzes as a transition from “preconventional” to “conventional” to “postconventional levels.”189 The details of this evolutionary theory are not important for my purposes. What matters is the account Habermas gives of modern society, in which, he claims, system and lifeworld are largely “uncoupled.” Two



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features of this account are particularly important. The first concerns the relations between systems and the relations between system and lifeworld. The second concerns the “internal” structure of system and lifeworld. Habermas has described the economic and administrative systems as differentiated out around the steering media of money and power. Following Parsons’s account of a generalized interchange medium, Habermas takes steering media to operate in two ways: They both coordinate interaction within the relevant system and regulate the system’s “external” interchange with its environments. Money and power were hardly unknown in precapitalist societies, Habermas allows, but neither operated as a genuine “steering medium.”190 What is decisive for the formation of “mediasteered” subsystems, Habermas maintains, is that the medium comes to control the relations between system and environment.191 In the case of money, Habermas argues, this occurred with the widespread institutionalization of wage labor and the development of markets for consumer goods. With these developments, the relations between the economic system and its environment of the “private household” came to be mediated by money. I point to Habermas’s account of this relation because, for him, it is a relation between system and lifeworld: The “private household”—that is, the family, viewed from the perspective of the economic system—belongs to the societal component of the lifeworld.192 This point has more general significance. Habermas’s account of the “uncoupling of system and lifeworld” presents system and lifeworld as social spheres that are in actual interrelation with one another, not just as one-sided or partial constructions of society seen from two different theoretical perspectives. And the interrelation is regulated by steering media— at least from the side of the economic and administrative subsystems.193 The framework in which Habermas locates this interchange between system and lifeworld is thus systems-theoretical. And within this framework the lifeworld becomes “one subsystem among others”—albeit the one in which “systemic mechanisms have to be anchored.”194 The second aspect of Habermas’s account of the uncoupling of system and lifeworld concerns the “internal” structure of both domains. Habermas has described money and power as media that address a basic problem created by the rationalization of society as lifeworld: the greater danger of dissensus, to the extent consensus is no longer prescribed in advance by tradition, and the resulting burden on interpretive energies required to reach agreement communicatively. Money and power, he has said, address this problem by circumventing the process of reaching communicative understanding.195

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With his account of system and lifeworld as uncoupled, however, Habermas goes further. To his notion of steering media as regulators of systems’ internal operations, he adds the notion of “formal organizations.” By “formal organizations” Habermas means, essentially, bureaucratic organizations, whether governmental agencies or business firms, with hierarchical structures of command, defined roles and tasks, and defined behavioral expectations whose fulfillment is a condition for membership.196 Formal organizations are first constituted in positive law.197 Habermas speaks also of “formally organized domains of action [Handlungsbereiche],” by which he sometimes means “formal organizations” and sometimes means entire systems of action—the economic and administrative systems.198 The two terms go together: He tends to conceive of the economic and administrative systems as networks of formal organizations. Habermas presents formally organized domains of action as coordinated and integrated by money and power only. In these domains, Habermas claims, system and lifeworld are “uncoupled” not just in the sense that new mechanisms for coordinating action develop that are irreducible to the mechanism of communicative understanding. Rather, system and lifeworld are uncoupled in the further sense that the lifeworld’s resources become essentially irrelevant for the operation of the economic and administrative systems. These formally organized, media-steered subsystems, Habermas writes, are consolidated and objectified into norm-free structures. Members behave toward formally organized action systems, steered via processes of exchange and power, as toward a block of quasi-natural reality; within these media-steered subsystems society congeals into a second nature. Actors have always been able to shear off from an orientation to mutual understanding, adopt a strategic attitude, and objectify normative contexts into something in the objective world, but in modern societies, economic and bureaucratic spheres emerge in which social relations are regulated only via money and power. Normconformative attitudes and identity-forming social memberships are neither necessary nor possible in these spheres; they are made peripheral instead.199

Habermas goes on to argue even more explicitly that “formal organizations” in both subsystems have become indifferent to each of the structures of the lifeworld—personality, culture, and society. Through their ability to prescribe membership conditions, formal organizations manage the personal dispositions, capacities, and motivations of their members. Further, Habermas maintains, with more than a little hyperbole: “Just as persons are, as members, stripped of personality structures and neutral-



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ized into bearers of certain performances, so too cultural traditions . . . are robbed of their binding power and converted into raw material for purposes of ideology planning, that is, for an administrative processing of meaning constellations.” Finally, with respect to the society component, organizations “make themselves independent from lifeworld contexts” by “neutralizing the normative background of informal, customary, morally regulated contexts of action.”200 System and lifeworld are thus uncoupled in a radical sense. The development of money and power as media, together with the rise of formal organizations, fundamentally transforms the nature of interaction in what become the differentiated economic and administrative systems. Habermas refers in this connection to “an uncoupling of interaction from lifeworld contexts.” In these formally organized, media-steered systems, “the lifeworld contexts in which processes of reaching understanding are always embedded are devalued in favor of media-steered interactions; the lifeworld is no longer needed for the coordination of action.”201 Taken literally, this would mean that all of the lifeworld resources Habermas has identified—norms, values, institutions, interpretive schemes, personal competences and motivations—are irrelevant for the coordination of interaction in the economic and administrative spheres. This claim is plainly false. I have argued above that strategic action, not just communicative action, draws on what Habermas calls the lifeworld’s resources. The same is true of the subtype of strategic action called “media-steered” interaction, and it is true also of interaction within formal organizations. Interaction in general, not just communicative action in particular, is informed and channeled by the interpretive schemes Habermas associates with culture, the legal (at least) institutions and norms he associates with society, and the personal competences and motivations he associates with personality. To be sure, monetary transactions, for example, are less moralized than interaction with one’s friends or family. And further, the norms and behavioral expectations imposed by formal organizations may be organization specific, not general social norms. Finally, formal organizations may not permit discursive challenges to their rules or expectations. But only if we equate “norms” with “informal norms” and “moral norms”—excluding legal norms and organizationally imposed norms—do either of Habermas’s two systems, or formal organizations, appear to be norm free. In one sense, the problem is the same one I have been noting in analyzing each of Habermas’s basic concepts. His initial account of communicative

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action, before the amendments I discussed, tended toward an indefensibly sharp opposition between communicative and strategic action. His account of “lifeworld” interaction focuses almost exclusively on communicative action, with strategic action appearing only as an afterthought. And in the course of arguing that a systems-theoretical perspective must supplement his lifeworld perspective, he presented a polarizing account of the lifeworld as normatively dense and systems as “norm free.” At these points, Habermas stylizes his distinctions between communicative and strategic, validity and power, lifeworld and system.202 The problem becomes more acute, however, with Habermas’s account of the uncoupling of system and lifeworld. There the notion of lifeworld as the resources on which actors rely shifts to a conception of the lifeworld as itself a domain of action—as the informally organized and communicatively structured contexts of action 203 that stand opposed to the formally organized and media-steered spheres of action Habermas calls “systems.” This shift in the concept of the lifeworld is essential to Habermas’s “uncoupling” thesis, and it is the source of a good bit of his difficulties. It is a baffling shift as well. While perhaps the institutional complex at the core of the lifeworld’s “societal” component can be seen as a domain of action, the cultural tradition and the social stock of motivations and competences cannot. Habermas simply does not explain how the lifeworld, with these “structural components,” constitutes a system or network of action that can be placed in a systems-theoretical interchange model opposite the economic and administrative systems. In his model of the system/lifeworld relation, Habermas implicitly acknowledges this point by presenting the interchange between system and lifeworld as channeled through the institutional component only.204 As a result, however, he has no way to explain how interaction in the economic and administrative systems might draw on the interpretive schemes of culture and the motivations and competences of personality. The ultimate consequence of Habermas’s shifting conception of the lifeworld is an untenably stylized account: The lifeworld is the informal, customary, normatively rich home of communicative action, and systems are the strategic, calculating, formalized, normatively empty worlds of money and power.205 In various passages of Theory of Communicative Action unrelated to the uncoupling thesis, Habermas recognizes the points I am making. For example, as I have noted, he acknowledges that the media of money and power must be institutionalized, and that means, in Habermas’s terminology, a “recoupling” of system and lifeworld. The domains of economic and



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administrative action are legally constituted, and the processes of exchange and command are legally regulated through the basic “legal institutions” of private and public law. Formal organizations impose normative requirements and behavioral expectations on their members—not, perhaps, informal or moral requirements, but normative requirements notwithstanding. These points, of which Habermas is well aware, are obscured by the shift in his notion of the lifeworld and his hyperbolic notion of “uncoupling.” Further, Habermas acknowledges the stylization of his conception of formal organizations as steered only by money and power. Underneath the formal organization, he argues, is an informal organization, and organizations could not attain their goals if communicative action were entirely set out of play.206 This recognition is consistent with his statement that the “material reproduction of the lifeworld” is accomplished through communicative as well as strategic action. The original reason for adopting a systems-theoretical perspective was not that interaction in the systems responsible for material reproduction is entirely strategic (or, by extension, media steered). Instead, the reason had to do with the counterintuitive consequences of economic and administrative processes that are irreducible to the actor’s intentions or plans and inaccessible to a theory that confines itself to an interpretive perspective. Here, too, Habermas’s decision to see system differentiation as an uncoupling from the lifeworld—and the polarizing sense he gives this notion of “uncoupling”—has obscured insights available elsewhere in his work. Unfortunately, the model he develops to analyze the system/lifeworld relation reproduces the errors of his “uncoupling” analysis. That model is the topic of the next section.

1.4 t h e s ys t e m/l ife wor l d model i n t h eory of c om m u n ic a t i v e ac t ion Habermas’s working model of the relation between system and lifeworld is systems-theoretical: It presents media-steered interchange processes between the economic and administrative systems, on one side, and the lifeworld on the other. As I mentioned, Habermas conceives of this interchange as channeled, on the side of the lifeworld, through the institutional component. He distinguishes two “institutional orders” of the lifeworld that participate in this interchange. The “private sphere” is in interchange with the economic system, and the “public sphere” is in interchange with

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Private sphere 2) consumer 1a) client Public sphere



2a) citizen



labor power

— P’ —➤

income from employment

— M —

— M — goods and services demand

— M’ —➤

taxes

— M’ —➤

organizational accomplishments

— P —

political decisions mass loyalty

— P —

➤

1) employee

Factor/ product Medium

➤

Lifeworld role

➤

Lifeworld “institutional order”

➤

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System

Economic

Administrative

— P’ —➤

M = money medium; P = power medium. The apostrophes following the P or M that designate contributions from the lifeworld are Habermas’s; they acknowledge that neither the money medium nor the power medium is proper to the lifeworld. sou rce :

From The Theory of Communicative Action, Vol. 1, by Jurgen Habermas. Translator’s preface and translation Copyright © 1987 by Beacon Press. Originally published as Theorie des kommunikativen Handelns, Band 2: Zur Kritik der funktionalistischen Vernunft, Copyright © 1981 by Suhrkamp Verlag, Frankfurt am Main. Reprinted by permission of Beacon Press, Boston.

the administrative system. He presents these private and public spheres from a double perspective—first from the perspective of the lifeworld and then from the perspective of the relevant system. (In Table 1.1 I present most of the information contained in the next few paragraphs.)207 According to Habermas, the “institutional core” of the private sphere is the “nuclear family.” Oddly, given its location in the societal component rather than personality, Habermas describes the primary function of the family as socialization. From the perspective of the economic system, the family, as private-sphere environment, appears as the “private household.” Habermas focuses on two “roles” that have “crystallized” around the interchange relation between private sphere and economic system: the roles of employee and consumer. The employee role, he says, is “organization dependent” and arises in legal form. The consumer role is not legally constituted, and although it may be “defined with reference to formally organized domains of action,” it is not “dependent upon them.” These are the channels through which the interchange between economy and private sphere operates.



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Habermas follows this same pattern in describing the interchange between public sphere and administrative system. The “institutional core” of the public sphere consists in “communicative networks amplified by a cultural complex, a press, and later, mass media.” Habermas notes that the public sphere is really two public spheres—an artistic/literary sphere and a political public sphere. Only the latter enters the model. In this political public sphere, Habermas maintains, “a public of citizens” engages in political participation. Viewed from the perspective of the administrative system, however, the public sphere is “the environment relevant to generating legitimation.” The relevant roles are “client” of government services and “citizen of the state.” The client role, like the employee role, is “organization dependent.” The citizen role, like the consumer role, is defined with respect to, but is not “dependent upon,” the formally organized domain of the state administration. Because Habermas has selected a systems-theoretical interchange model, he presents the relations between system and lifeworld as regulated by steering media. Parsons presented the relation between systems as involving a “double interchange,” mediated by both media proper to the related systems. Habermas, however, has to improvise here. The only media he has identified are money and power, and so the interchange between system and lifeworld can be regulated only by these two media. This puts Habermas in a difficult position. On one hand, he cannot consistently attribute either the money or the power medium to the lifeworld. On the other hand, the model of interchange he borrows from Parsons requires him to do just that. The interchange relations Habermas identifies are as follows. The private sphere, via the employee role and the power medium, contributes labor power to the economic system. In exchange, the economic system provides income via the money medium. The private sphere, via the consumer role and the money medium, contributes demand for goods and services. In exchange, the economic system provides those goods and services by the money medium. In the interchange between public sphere and administrative system, the public sphere, via the client role and the money medium, contributes taxes to the administrative system. In exchange, the administrative system provides “organizational accomplishments” via the power medium. The public sphere, via the citizen’s role and the power medium, contributes “mass loyalty” to the administrative system. In exchange that system provides political decisions via the power medium.

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Habermas describes the process by which lifeworld processes become cognizable in terms of steering media as “real abstractions.” This term, which Habermas attributes to Marx,208 is significant in both its parts. With the word abstraction, Habermas means to highlight a certain conversion process of concrete “lifeworld” values into abstract “system” values that will be comprehensible within the system’s code. Following Marx, Habermas describes, as one of the processes of abstraction, the commodification of wage labor—the conversion of concrete, individual capacities for labor into quantities of abstract labor-power, comparable along the scale of money prices.209 A similar process of abstraction operates through the consumer role, in the conversion of “use-value orientations” into abstract demand, expressed in terms of willingness and ability to pay. So, too, with the conversion, in the citizen’s role, of “publicly articulated opinions and collective expressions of will” into “mass loyalty.”210 By the word real in the expression real abstractions, Habermas means to signal that these processes are not “abstractions” in a purely intellectual sense but are real social processes. Habermas sees his project in Theory of Communicative Action as a reformulation of the critique of capitalist societies, as presented first by Marx, then by Georg Lukács, and then by Habermas’s “Frankfurt School” predecessors (principally Max Horkheimer and Theodor Adorno).211 One significant distinction between Habermas’s approach and the approaches of his various predecessors is that Habermas believes these processes of “real abstraction” are not necessarily pathological. Neither the organization of media-steered subsystems as such, nor the processes of “abstraction” as such, count as social pathologies.212 But Habermas designs his model as a framework for analyzing developments that would count as crises or social pathologies. Habermas identifies a number of different types of crisis or social pathology. Two to which he pays little attention in Theory of Communicative Action are what he calls “steering crises”—“internal” crises of the two media-steered subsystems, whether in the form of “economic” crisis or “planning crisis.”213 In contrast to orthodox Marxist approaches, Habermas maintains that, with welfare-state attempts to regulate the business cycle, tendencies toward economic crisis largely have been displaced into the administrative system.214 Of greater interest to Habermas are crises in symbolic reproduction. He mentions the possibility that these may be “internally” induced: For example, the “cultural impoverishment of everyday communicative practice” may arise with the “elitist splitting-off of expert cultures from contexts of communicative action in daily life.”215 But he



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focuses more intensively on the crises of symbolic reproduction that are “externally” induced, through incompatibility between the forms of organization and rationality proper to system and lifeworld. Habermas refers to this last kind of crisis as “inner colonization,” or, the “colonization of the lifeworld.” This social pathology arises when crises in the economic and administrative systems “can be avoided only at the cost of disturbances in the symbolic reproduction of the lifeworld.”216 Or, in Habermas’s more colorful description of this social pathology: “The imperatives of autonomous subsystems make their way into the lifeworld from the outside—like colonial masters coming into a tribal society—and force a process of assimilation upon it.”217 Thus, the term colonization. Habermas’s idea is that “colonization” occurs when the informally organized, communicatively structured domains of action that Habermas has come to call the lifeworld—the domains of action that are primarily responsible for cultural reproduction, social integration, and socialization—are disrupted by the penetration of “alien,” systemic forms of organization and rationality.218 According to Habermas, tendencies toward colonization are channeled through the interchange relations his model has identified. The roles of employee, consumer, citizen, and client are the points of incursion. Habermas is particularly interested in two of those roles: consumer and client. The reason for focusing on these roles, according to Habermas, is that with the pacification of class conflict and the depoliticization of the citizen’s role, the consumer and client roles are the more likely sites of conflict. These roles, Habermas claims, have been “upgraded” under recent conditions, as a sort of “compensation” for employees’ relative lack of power in the workplace and the “neutralized citizen’s role.”219 And thus in these roles, Habermas maintains, the “privatized hopes for self-actualization and self-determination are located.”220 Of these two roles, Habermas spends most of his energy on the “client” role. He calls the colonization tendency in the relation between administrative system and client of welfare-state services “juridification”— the extension of formal law to areas previously regulated only informally and the increasing density of legal regulation.221 The term juridification does not by itself signify pathological tendencies, Habermas cautions. The development of the constitutional state (as in the nineteenth-century German Rechtsstaat) and the institution of the democratic constitutional state also count as “juridification,” and the institutions established then were, compared to their predecessor institutions, “unambiguously freedomguaranteeing.”222

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With respect to these criteria of “freedom-guaranteeing” and “freedomdepriving,” however, Habermas discerns an ambivalence in the most recent “wave” of juridification. On one hand, welfare-state programs compensate for risks by creating legal entitlements to income in case of need or inability to work. But on the other hand, this “historical progress” has costs that Habermas emphasizes. The bureaucratic structure of the administrative system requires “a centralized and computerized handling of social exigencies by large, distant organizations.” The individualizing and bureaucratic form in which assistance is offered “affects the self-image of the person concerned,” Habermas maintains, and the availability of governmental aid weakens the “readiness of solidar[y] communities to provide subsidiary assistance.” And government-provided therapeutic procedures only reproduce “the contradictions of welfare-state intervention . . . at a higher level”: The bureaucratic form of aid, Habermas claims, is inconsistent with the therapeutic aim of establishing “independence and self-reliance.”223 Habermas thus identifies a “dilemmatic structure” to welfare-state juridification: While the welfare-state guarantees are intended to serve the goal of social integration, they nevertheless promote the disintegration of life-relations when these are separated, through legalized social intervention, from the consensual mechanisms that coordinate action and are transferred over to media such as money and power.224

Habermas sketches the lines of this thesis through examination of (then) recent empirical research in social-welfare law, school law, and family law.225 This research, however, is by now dated, and it was directed more to a German than an American audience. And in any event, for present purposes the details of Habermas’s argument are less interesting than the position he assigns to law in this process of juridification. A legally oriented reader will have detected that my account of Habermas’s basic concepts, as they stood prior to Habermas’s most recent work, says little directly about law. We know that developments in law are, for Habermas, important to the rationalization of the lifeworld and the development of media-steered systems. Law is one of the “cultural systems of action” established, in early modernity, with the rationalization of culture. The basic “legal institutions” of private and public law institutionalize the media of money and power. And the media-steered subsystems, as well as their constitutive “formal organizations,” are created and regulated by law. But law is, in Habermas’s scheme, neither its own subsystem nor a structural component of the lifeworld. The position it occupies with respect to the system/lifeworld division is thus unclear.



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In his account of “juridification,” Habermas suggests that law may operate as a steering medium. In “most areas of economic, commercial, business, and administrative law,” he says, “the law is combined with the media of power and money in such a way that it takes on the role of a steering medium itself.” Like the other steering media, he says, law-as-steeringmedium must be secured by the basic “legal institutions” he has identified. But because of its connection to the media of money and power, law as medium is “technicized and demoralized,” and it can be evaluated not substantively but only according to its functionality or instrumental success.226 Further, as concerns the juridification thesis, Habermas argues that law, as a steering medium, has been an instrument of the welfare-state project of taming “modern relations of power and dependence that arose with the capitalist enterprise [and] the bureaucratic apparatus of domination.” His classification of law as a steering medium in this project, too, is part of his diagnosis that welfare-state interventionism has tended to disrupt the communicatively structured, informally organized domains it regulates. Habermas did not work out the concept of law as a medium in the way that his system/lifeworld model would demand—with a separate system it steers, and an account of its code, standard situation, generalized value, and other medium-defining characteristics. And in his most recent work, Habermas repudiates the idea of law as steering medium.227 We are still left, then, with the question of law’s position in Habermas’s system/ lifeworld model. The account he has given suggests that law is relevant to both system and lifeworld and that in that respect its significance is ambivalent. But law finds no particular place in Habermas’s model. It appears, variously, as a “cultural system of action” alongside science and art, as part of the societal component of the lifeworld (or, at least, the fundamental principles of private and public law appear there as “legal institutions”), and as a mechanism that regulates media-steered interaction in the economic and administrative systems. In Habermas’s recent work on law, he retains the mood of ambivalence, but with a much fuller and more coherent treatment of law’s structure and operation. The problems in Theory of Communicative Action’s treatment of law are paralleled in its treatment of politics. As with his account of law, Habermas’s account of political institutions and processes stretches across the divide between system and lifeworld. One would think, at first, that the state would count as part of the “institutional complex” that Habermas calls the societal component of the lifeworld. And Habermas does describe the constitutionally established framework of state offices as part of the

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societal component—though he does not make clear whether he means the legal framework that organizes those offices or the political framework of offices themselves. Habermas notes also that the exercise of political power must be legitimated, and by “legitimated” he means not only legally institutionalized but also normatively justified. But once Habermas has introduced the systems-theoretical conception of political power, he analyzes what one might call the “political system” almost exclusively as the formally organized, media-steered “administrative system” that stands on the “system” side of the system/lifeworld divide.228 No doubt this classification of political institutions as both system and lifeworld, like Habermas’s similar treatment of law, reflects his ambivalence about the state. It reflects, also, his determination to think about democracy in a way that takes account of modern complexity. Yet Habermas’s discussion of political institutions, rather than genuinely reconciling complexity and democracy, puts democracy on one side of the divide and complexity on the other. Habermas’s account of the lifeworld’s rationalization presents democracy, and the idea of the discursive production and justification of political and legal norms, as one of the West’s foremost accomplishments. But his systems-theoretical account presents an administration that operates through the steering medium of power, with the “standard situation” of power’s operation described as the “following of imperatives.” And the model of the relation between public sphere and administrative system describes a process of abstraction—not necessarily pathological—in which democratic impulses are transformed, via the power medium, into “mass loyalty.” Habermas’s more recent work, we will see, relies on a more complex notion of power that is not reducible, in its entirety, to imperative command.229 And this more recent work, also, is more attentive to what Habermas calls the political public sphere, as well as the relations between that sphere and formal governmental institutions. These changes mark a substantial improvement over the account given in Theory of Communicative Action. I have suggested that Habermas’s analysis of the uncoupling of system and lifeworld unnecessarily stylizes and polarizes what he wants to describe under the two aspects. The interchange model Habermas uses to bring together the two stylized accounts does not correct this problem. And the problem is not just that the model is incomplete—addressing, as Habermas acknowledges, only the relation between the societal component of the lifeworld and the two media-steered subsystems.230 The problem is one of principle, not just coverage. The interchange model is systems-theoretical,



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not neutral between the systems and lifeworld perspectives. On that model’s premises, the interchange among social spheres can be understood only as media steered. Thus, Habermas’s difficulty in accounting for the relation between system and lifeworld: The model demands media for the various lifeworld components, and Habermas denies that any are to be found. And thus, Habermas unconvincingly imputes money and power to the public and private spheres in their interchange with the administrative and economic systems, respectively. This ad hoc solution leads Habermas to claim, for example, that the input of labor power to the economic system operates through the power medium. Power is the more plausible choice, given the alternative between money and power, but the sale of one’s labor power is not best understood as the giving of a command. These apparently technical slips and inconsistencies are symptoms of a more serious problem: the failure to reconcile Habermas’s “lifeworld” approach with his Parsons-inspired notions of systems theory.

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Habermas’s “Reconstruction” of Modern Law 2.1 t h e t wo a spec t s of l eg a l va l i di t y a n d h a ber m a s’s m e t hod of r ec ons t ruc t ion The premise of Habermas’s analysis of modern law is the social condition he has described as the “rationalization of the lifeworld.” Through this process of rationalization, Habermas has argued, the cultural tradition has been largely secularized and has lost much of its power to prescribe in advance the division of labor and social roles. Action must be coordinated less through an unproblematic background consensus and more through the achievements of participants themselves. Interest positions are more sharply differentiated, and the possibility of dissensus and conflict accordingly has increased. Communicative action, Habermas has said, offers one mechanism for coordinating action and integrating society. But attempts to secure communicative agreement are burdensome and risky, Habermas has maintained, and, further, modern societies are characterized by the development of spheres of strategic (or “media-steered”) interaction. Accordingly, communicative agreement cannot be the only mechanism by which action is coordinated and modern societies integrated. Modern law addresses these difficulties. On one hand, law enforces compliance by strategic actors (and those otherwise uncommitted to the law’s normative claims) through sanctions. On the other hand, if a legal order is to provide a stable basis for social integration, it must be accepted as generally legitimate. According to Habermas, modern law is characterized by these two aspects: its steering of actors’ choices through sanctions and its claim to legitimacy. Both are essential. Law, on Habermas’s anal-



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ysis, “leave[s] the choice of action orientation up to the addressees.”1 In other words, it offers the alternative between two forms of compliance: one motivated by a concern for the sanctions that the norm’s enforcement would impose and the other motivated by a belief that the legal norm is legitimate. Law, then, is tailored to both the “objectivating” and “performative” attitudes that Habermas used to distinguish between strategic and communicative action. The idea that a legal order’s legitimacy buttresses its long-run stability is a staple of social theory. As Habermas notes, it features particularly prominently in Max Weber’s sociology of law.2 Habermas parts company with Weber, however, as to exactly how social theory should understand the notion of legitimacy. For his part, Weber distinguished between social (or de facto) validity and “ideal” validity.3 With the notion of social validity, Weber meant to address the issue whether, as a matter of sociological fact, members of a society generally believe that the society’s legal order and its norms are obligatory. With the notion of ideal validity, by contrast, Weber meant to refer to the question whether, as a matter of legal or political theory, a society’s legal order and norms are legitimate—whether, that is, a legal order’s socially accepted claim to validity genuinely may be redeemed. Weber’s sociology of law, and with it his notion of a legal order’s legitimacy, addresses only the matter of social validity. A legal order’s ideal validity, Weber says, is a question for legal theory or jurisprudence or the philosophy of law, not for sociology.4 Habermas’s “reconstructive” approach does not so quickly exile the question of ideal validity. His perspective on legitimacy is more abstract than Weber’s focus on actors’ actual beliefs about legal norms and the legal order. Habermas’s reconstruction of “the self-understanding of . . . modern legal orders”5 focuses on the presuppositions that underlie modern practices of legal justification. Because the process of rationalization has undermined the social order’s religious and metaphysical support, Habermas argues, the only plausible form of justification is through discourse.6 An important part of Habermas’s reconstructive analysis of law, therefore, is to analyze the various kinds of discourse involved in making and applying legitimate law. At the same time, Habermas argues, the emphasis on discourse does not mean that he is concerned only with law’s “ideal validity.” Instead, Habermas intends his discourse theory of law to reconstruct the presuppositions characteristic of modern societies, not to survey law from a perspective generated solely through an extrinsic ideal theory. As with his notion of “rationalization,” Habermas’s reconstructive analysis of

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a modern legal order is designed to capture its unexhausted rational potential but from a perspective more or less immanent to the legal order, not a utopian perspective. The tensions Habermas identifies at the outset of his theory of law— tensions between ideal and empirical validity, and between legitimacy and enforcement—exemplify a more general theoretical logic underlying Between Facts and Norms. The German title of that book is Faktizität und Geltung which, translated literally, means “facticity and validity.” This distinction between “facticity”7 and “validity” organizes the argument of Between Facts and Norms at every level. With “facticity,” Habermas associates ideas such as law’s positivity, certainty or predictability, institutional connections, and coercive enforcement.8 With “validity” he associates law’s (ideal) legitimacy and “rational acceptability” 9—that is, its claim to be normatively worthy of obedience. As suggested above, Habermas considers both moments essential. So, too, is the tension between them. It may be worth a moment to make the architectonic of Habermas’s project more clear. Between Facts and Norms divides into two main parts, each paired with one side of the most comprehensive facticity/validity distinction Habermas identifies. The first part, on the “validity” side, is the reconstructive and normative theory: the “discourse theory of law” proper, established through a reconstructive account of modern legal orders’ “selfunderstanding.”10 The second part, on the “facticity” side, is the “communication theory of society,” in which Habermas examines, from the point of view of social theory, whether the reconstructive discourse theory is plausible under factually obtaining conditions of modern social complexity. In this first division—between discourse theory proper and the communication theory of society—the tension between facticity and validity is, Habermas says, “external.” By this he means that he is concerned, in that aspect of his project, with the tension between officially legitimate democratic and legal procedures, on one hand, and, on the other hand, the systems of “social power” that may displace or otherwise influence those procedures “externally.”11 But the tension between facticity and validity, Habermas argues, inhabits also the very notion of legal validity itself.12 And so even in Habermas’s discourse theory proper—which occupies the “validity” side in the “external” tension between facticity and validity—the tension between facticity and validity reappears, this time as an “internal” tension, or as a tension immanent in the “validity dimension” of modern law itself.13 The basic figure of Habermas’s work on law is the nesting of tensions between



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facticity and validity. That is the architectonic of Habermas’s reconstructive theory of law and democracy.14 The structure of chapters in Between Facts and Norms reflects this architectonic. After the first two chapters, which sketch basic concepts in Habermas’s earlier work and introduce the facticity/validity distinction, Chapters Three and Four present the core of the discourse theory proper— the “validity” side of the most comprehensive facticity/validity division. Chapters Seven and Eight address the “communication theory of society” that occupies the “facticity” side of that distinction. The intervening Chapters Five and Six “test” the discourse theory, Habermas says, by addressing adjudication-related issues in legal theory and constitutional law. Chapters Three and Four, devoted to the “validity” side of the most general facticity/validity distinction, seem in turn to divide along the lines of that same distinction.15 In Chapter Three, Habermas addresses, first, what he calls “the system of rights,” by which he means the categories of basic rights (five, according to Habermas) that any modern system of law must recognize if it is to count as legitimate. He turns then in Chapter Four to an account of “the principles of the constitutional state,” addressing the institutional mechanisms and procedures required to implement the basic rights that he has set out abstractly, under the heading of “the system of rights,” as conditions of any legal system’s legitimacy. The account of the system of rights thus seems to track the “validity” side of Habermas’s basic distinction, while the account of the constitutional state develops the institutional and positive dimension of law that Habermas connects with “facticity.” Yet Habermas’s argument—a characteristic argument throughout his work on law and democracy—will be that the two moments, analytically distinguishable, mutually presuppose and complete one another. In section 2.2, I examine Habermas’s account of the system of rights. In section 2.3, I will take up Habermas’s account of the principles of the constitutional state.

2.2 t h e s ys t e m of r igh t s The task of Habermas’s “system of rights” is to mediate two related tensions: between private and public autonomy and between basic rights and popular sovereignty. Here, too, Habermas sees these tensions as expression of a more general tension between facticity and validity.16 Basic individual rights create spheres of morally neutralized action, thus securing

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individuals’ private autonomy. But these rights must be justified and made legitimate through a legislative procedure that is based on the “principle of popular sovereignty.”17 The idea of Habermas’s system of rights is to show that these two aspects of modern law are not only compatible but “co-original.”18 First, however, Habermas must show that modern legal orders’ “selfunderstanding” manifests the tension that he proposes to mediate.

2.2.1 The Grounds of Law’s Legitimacy Habermas’s reconstruction of modern legal orders’ “self-understanding” begins with readings of two traditions: nineteenth-century German civillaw theory and the social contract theory of Rousseau and Kant. Habermas draws two conclusions from these readings. First, the ideas of human rights and popular sovereignty are “the sole ideas that can justify modern law.”19 Second, neither tradition succeeded in reconciling the two ideas. This account is the background for Habermas’s own attempt to mediate the tension between human rights and popular sovereignty, private autonomy and civic autonomy. In German private-law theory, Habermas sees the primacy of individual private-law rights to property and free contract. For the midnineteenth century authors in this tradition, these rights presupposed an equality among legal persons and were based in the mutual recognition of all. But this mutual recognition was independent of authorization by a democratic legislature. The justification for these private-law rights was that they created and maintained a zone of personal sovereignty and private autonomy. This moral grounding of private-law rights gave way, according to Habermas, with the ascent of positivist theories of the late nineteenth century—theories that traced the validity of law not to its correspondence with moral notions but to the binding will of a sovereign. And according to Habermas, subsequent developments in German civillaw theory—efforts to restore the moral grounding of private-law rights, to add “social rights” to the negative liberties of private law, or to explain the connection between private autonomy and democratic lawmaking— have been unsuccessful.20 In Rousseau, Habermas finds the ideas of political autonomy and popular sovereignty that are absent in classical civil-law jurisprudence. And with Rousseau’s link between democratic lawmaking and the general will, the exercise of political autonomy seems to guarantee the equal liberties of



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all. In that sense, Habermas says, Rousseau’s emphasis on civic autonomy establishes “an internal connection between popular sovereignty and human rights.” But Rousseau places demanding preconditions on this exercise of civic autonomy. If the legal order is not to be a coercive order, the political community must be small and already integrated through a shared cultural tradition, and its members must possess extraordinary civic virtue. In Habermas’s view, however, these conditions amount to a denial of the basic problematic of modern law: the differentiation of interest positions, the pluralization of groups and conceptions of the good, and the increasing importance of self-interested action. And thus, according to Habermas, the promised reconciliation of private and civic autonomy remains fictive—at least with respect to a recognizably modern society.21 Finally, in Kant Habermas finds both a notion of political autonomy and an emphasis upon private individual liberties. The grounding for these private rights is, as in German civil-law jurisprudence, a moral notion of autonomy and the mutual recognition of rights among equals. These particular rights are for Kant the specification of a more general right to equal liberties. The requirement that these rights be specified in positive law seems to link Kant’s system of rights to the idea of popular sovereignty. But, according to Habermas, the status of these individual rights as prepolitical natural rights creates an “unacknowledged competition between morally grounded human rights and the principle of popular sovereignty.”22 The morally grounded system of rights operates as a limit on democratic legislation. Thus, rather than reconciling the idea of human rights with the principle of popular sovereignty, Habermas claims, Kant subordinates the latter to the former.23 Habermas incorporates into his preliminary notion of law several points on which his three readings converge. Modern law, in all three, centers around a “system of rights.” These rights take the form of equally distributed, mutually recognized individual liberties that define the legal person as rights-bearer. Following Kant and the German civil-law tradition, Habermas sees these individual rights as the basis for private autonomy— the sphere of individual decision making that must be preserved if law is to be legitimate. Further, from Rousseau and Kant, Habermas incorporates the idea of popular sovereignty or democratic lawmaking as a source of legitimacy. The idea here is that a legal order is legitimate to the extent that its norms are authored by their addressees. Habermas refers to this idea, interchangeably, as “civic autonomy,” “public autonomy,” or “political autonomy.” And, according to Habermas, Rousseau and Kant saw also

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that these two sources of legitimacy needed to be genuinely reconciled— popular sovereignty with individual rights, or, put differently, private autonomy with civic autonomy. But the reconciliations failed in each case, according to Habermas, because each tacitly ranks one term in these conceptual pairs over the other. Kant, Habermas maintains, emphasizes a “moral reading of human rights” that subordinates popular sovereignty and civic autonomy. Rousseau provides an “ethical reading of popular sovereignty”—where, by “ethical,” Habermas means “pertaining to a particular community’s form of life.” Kant and the early German civil-law theorists thus grounded law in morality. Rousseau grounded it in the shared life of a unified and virtuous ethical community. In both cases, law’s legitimacy is established extralegally, by virtue of the postulated correspondence between the legal order and some other order—whether moral or (in Habermas’s sense) ethical. According to Habermas, the subordination of law to morality or ethical life misunderstands the place of law in modern society. Legal norms are not just imperfect copies of universal moral norms, nor are they simply emanations of an existing, prepolitical consensus. Habermas sees the relation between law and morality as complementary, and he understands both as differentiated from particular forms of life belonging to ethically unified communities.24 He makes these points in the first instance through his theory of rationalization. The process Habermas calls the “rationalization of the lifeworld” brings an increasing pluralism of forms of life, with the customary norms and practices of each “devalued to mere conventions.”25 This allows the differentiation of both morality and law from traditional norms based in particular homogenous communities. On Habermas’s reading, morality becomes increasingly universalistic—Habermas focuses on Kant’s moral theory, but utilitarianism would qualify as well—and moral norms are to be justified not simply by their coherence with particular traditions but impartially, through universalistic moral discourses.26 With the positivization of law, legal norms come to be generated through legally prescribed procedures.27 The process of rationalization, then, weakens the connections between legal and moral norms, on one hand, and the customs of particular communities, on the other. The positivization of law—the generation of legal norms through legally prescribed procedures—differentiates legal from moral norms.28 So too does the internal link between the validity of a legal norm, but not a moral norm, and the norm’s enforcement.29 And so too do the different references of the two kinds of norms—to members of a legal community,



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in the case of legal norms, and (on Habermas’s view) to “humanity or a presupposed republic of world citizens,” in the case of moral norms.30 But Habermas sees the relation between law and morality not just as differentiation: The two kinds of norms, he says, are “complementary.”31 Law, according to Habermas, compensates for the heavy burdens that universalistic, postconventional moralities place on individuals. Some of these burdens Habermas classifies as “cognitive.” Postconventional moralities consist not in a list of concrete duties but primarily in a universalization principle and an idea of discursive justification. Because they require autonomous determinations, postconventional moralities require the individual to make difficult judgments in justifying general principles, in deciding which of several potentially applicable principles should apply, and in applying an abstract principle to a factual situation.32 Legal norms ease this burden with their relative concreteness.33 And through their employment of sanctions to induce compliance, legal norms address also the “weakness of the will” problems that are exacerbated in postconventional moralities.34 From a functional point of view, then, law supplements morality in regulating interpersonal relations, and it does so through institutionally bound, coercive mechanisms that are absent from postconventional morality. Habermas thus rejects the idea that law is subordinate to morality or the prepolitical customs and norms of a particular homogenous community. And although he sees legal and moral norms as complementary, he rejects the idea that law’s legitimacy can be established solely through moral theory: The institutional dimension of law and its coercive mechanisms are sufficient to differentiate law, and the basis of its legitimacy, from morality. Thus, if human rights and popular sovereignty are to be the grounds of law’s legitimacy, they need to be understood not in a moral or ethical sense, but directly as legal rights and legal procedures.35 Habermas’s reconstruction of the system of rights aims at an account that “gives equal weight to both the private and the public autonomy of the citizen.”36 In accounting for civic or political autonomy, Habermas says, he must incorporate the sense in which a legal order can be said to be authored by the members of a legal community who are also the addressees of legal norms.37 Here he must make room for democratic procedures of lawmaking—or, as Habermas puts it, for the “discursive processes of opinion- and will-formation in which the sovereignty of the people assumes a binding character.”38 And in accounting for private autonomy, Habermas claims, he must leave room for individuals not to exercise this very “communicative freedom.” Legally protected private liberties involve

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actors’ freedom to “withdraw from the public space . . . to a position of mutual observation and influence.”39 In terms of Habermas’s action theory, these liberties “entitle one to drop out of communicative action”40 and to act strategically with respect to individual interests. In these respects, private liberties are basic to the creation of morally neutralized spheres of strategic action—spheres of action that Habermas’s earlier work analyzed as the economic and administrative systems. But Habermas has in mind here more than just the freedom to act strategically in pursuit of economic gain or power. He speaks also of a right to “privacy” that consists in an actor’s refusal “to give others an account or give publicly acceptable reasons for her action plans.”41 This freedom to withdraw from the exercise of “communicative freedom”—that is, the freedom to refuse to exercise one’s public or political autonomy—is a necessary condition of that communicative freedom itself.42 In that respect, public autonomy already could be said to presuppose private autonomy.

2.2.2 The “Discourse Principle” and the Categories of Basic Rights Habermas’s categories of basic rights are designed further to reconcile the tension between private and public autonomy—a tension that appears also in the relation between human rights and popular sovereignty. Habermas approaches this reconciliation project with what he calls “the discourse principle.” In its general form, this principle is neutral between law and morality.43 As Habermas puts it, the discourse principle “merely expresses the meaning of postconventional requirements of justification”44—that is, the requirements of justification in a rationalized “lifeworld,” where tradition and religious or metaphysical worldviews are no longer sufficient to legitimate social norms or institutions. Habermas states the principle as follows: D: Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.45

I will examine later the ambiguity of “could” in the expression “could agree.” For now, clarification of the other terms—all of which are expressly defined46—will suffice. By “action norms,” Habermas means “temporally, socially, and substantively generalized behavioral expectations.” By “affected persons” he means “anyone whose interests are touched by the foreseeable consequences of a general practice regulated by the norms at issue.” And with the term rational discourse, he refers to “any attempt to reach an understanding over problematic validity claims,” provided that conditions



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permit “free processing of topics and contributions, information and reasons.” Habermas adds a rider that will turn out to be important: The term “rational discourse” also “refers indirectly to bargaining processes insofar as these are regulated by discursively grounded procedures.”47 This rider allows him to include also processes of “compromise,” where discursive agreement is impossible to obtain—provided that the bargaining conditions underlying the compromise are fair.48 Such compromises will turn out to be important in his account of the Rechtsstaat, or constitutional state. The other conceptual tool Habermas introduces is the idea of “the legal form.” Habermas seems to mean by this term the formal characteristics of legal norms that make them specifically legal rather than moral.49 Habermas also refers in this context to “the legal medium.” The terms legal form and legal medium seem to be synonymous for Habermas.50 But his use of the word medium, together with the unclear relation between “legal form” and “legal medium,” gets Habermas into some conceptual difficulties. The problem with the term medium is that Habermas’s prior writings, as well as a number of passages in Between Facts and Norms, use the term medium as shorthand for “steering medium.” As I mentioned in section 1.4, the term steering medium is part of Habermas’s social-theoretical vocabulary, and it refers to money and power as “system” mechanisms that coordinate action by circumventing the process of reaching communicative agreement. As Habermas explains, his idea of a “steering medium” is a more restrictive version of what Talcott Parsons called “generalized symbolic media,” or specialized languages for particular social subsystems (such as the economy and polity). In referring to “the legal medium,” Habermas probably means something more like Parsons’s “generalized symbolic medium” than his own “steering medium.” If that is so, then law is not a “steering medium” analogous to money and power,51 but instead, a “language” with a specialized vocabulary and conceptual structure that “circulates” throughout society.52 And if we understand the term legal medium in that way, then the term legal form should mean that which marks the legal medium as legal—the particular structure and characteristics of law that make it what it is. Even with this conceptual clarification, Habermas’s argument is difficult to follow. His initial claim is that “the legal medium as such [or the legal form] presupposes rights that define the status of legal persons as bearers of rights.”53 Habermas has in mind, in the first instance, the sort of liberties he analyzes under the heading of private autonomy.54 But he does not mean that the legal form (or legal medium) by itself necessarily implies

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the panoply of rights recognized in German civil-law theory or in any particular existing legal system. What he means, instead, is that the legal form (and legal medium) presupposes a concept of legal personhood and that the concept of legal person is one of rights-bearer, whatever the particular content of those rights might be. Habermas’s perspective here is of course abstract, but it is nonetheless familiar. American status law historically has denied full legal personhood to members of various groups by limiting or denying outright the rights available to others—whether private-law rights or rights of political participation. Those who lack the full complement of rights ordinarily granted to legal persons are, to that extent, not full legal persons. So what Habermas means is that, whatever the precise content of rights in a given legal system, the idea of modern law uses the idea of rights to define the status of persons, and legal personhood is a necessary condition for participation in legal communication. In that sense the form or medium of law implies a system of rights. But what sort of rights? This is the point at which Habermas invokes the discourse principle. He describes three “categories” of rights that are generated “simply from the application of the discourse principle to the medium of law as such.”55 The first category of rights he mentions is: 1. Basic rights that result from the politically autonomous elaboration of the right to the greatest possible measure of equal individual liberties.56 This category needs some parsing to be intelligible. Two aspects of Habermas’s formulation particularly need explanation. The first concerns the words greatest possible measure of equal, just before the words individual liberties. Habermas has said that the legal medium—or (he sometimes says) the legal form—implies the idea of individual liberties that define the status of legal persons. Here, however, we have the proviso that there must be “the greatest possible measure of equal” individual liberties. The language in quotation marks, according to Habermas, is the contribution of the discourse principle.57 While he does not explain this point, he likely means that we could not expect “all possibly affected persons” to “agree as participants in [a] rational discourse[],”58 as the discourse principle would require, to a system of unequal liberties.59 And if equal liberties were the outcome of this discourse, then the participants would opt for the maximum of liberties compatible with the liberties of all. That, at any rate, must be Habermas’s argument.60



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The other part of this formulation that needs explanation is the phrase politically autonomous elaboration of the right to equal liberties. Just as Kant saw the right to equal liberties as a general principle that needed to be particularized, so Habermas would require “elaboration” of this same right.61 This first category of rights, and the categories that follow, are just “unsaturated placeholders”62 rather than lists of actual rights. And the words politically autonomous before elaboration suggest that the elaboration of this category is for citizens to perform rather than for the theorist. The reason is Habermas’s idea of political autonomy. If the system of rights is to give adequate weight to citizens’ political autonomy, then the precise content of those rights must be left up to citizens’ discursive exercise of their political autonomy. The theorist is a “nonparticipant”63 in this politically autonomous elaboration of the right to equal liberties, and it is not for her to determine precisely what rights citizens should accord one another—unless, perhaps, the theorist is intervening in an ongoing debate in an existing society, and in that case the theorist is operating in a different phase of Habermas’s project.64 The second and third categories of rights—relating to membership in a legal community and to the “actionability” of rights—are, according to Habermas, “necessary corollaries” of the first category of rights. Corollaries may not be the right word. But Habermas seems right that the concept of legal personhood implies both membership in a legal community and—at least as a general matter, and in modern societies—the “actionability” of rights. Here, too, Habermas includes the qualification that each category refers to rights that arise only through an exercise of citizens’ political autonomy. For that reason these second and third categories, like the first, are only “unsaturated placeholders.” Habermas formulates these two categories as follows: 2. Basic rights that result from the politically autonomous elaboration of the status of a member in a voluntary association of consociates under law. 3. Basic rights that result immediately from the actionability of rights and from the politically autonomous elaboration of individual legal protection.65 Habermas describes briefly the sorts of rights that these second and third categories implicate. The category of membership rights establishes the distinction between those who belong and those who do not belong to the legal community. The general subject matter concerns citizenship rules,

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immigration, and emigration. Habermas suggests that the right to emigrate must be guaranteed and voluntary, and, as to immigration matters, there must be “a regulation in the equal interest of members and applicants.”66 Habermas does not explain these conclusions, and at first they sound surprisingly substantive. But the first conclusion, concerning the right to emigrate, follows from the idea of a legal community as voluntary rather than compulsory. One cannot be said to “consent” to a legal or political order if one is not free to leave it. The requirement that immigration regulation be “in the equal interest of members and applicants” follows, presumably, from the discourse principle. Habermas has formulated that principle to provide not that all members of a community be able to agree to a particular norm but instead that the norm be agreeable to all those affected. And regulations concerning immigration surely affect those who would choose to immigrate. Here, too, the discourse principle implies an equality of treatment. The third category of rights, covering the “actionability” of rights and availability of “individual legal protection,” requires that legal remedies be available for violations of legal rights—again, whatever those particular rights might be. Habermas has argued already that the idea of a legal norm’s validity implies its adequate enforcement. The requirement of enforcement implies, in turn, that legal persons have access to independent courts that will decide disputes “impartially and authoritatively according to the law.” Here, too, Habermas takes the discourse principle to impose further requirements—in this instance, procedural rights consistent with basic norms of due process and equal treatment.67 These three categories of rights, Habermas says, define the private autonomy of citizens. But each category requires legal institutionalization if the rights they describe are to be effective legal rights. Habermas’s description of each category has indicated that this legal institutionalization, or “elaboration” of the abstract category, must engage the political autonomy of citizens. Thus the fourth category of rights comes as no surprise: 4. Basic rights to equal opportunities to participate in processes of opinion- and will-formation in which citizens exercise their political autonomy and through which they generate legitimate law.68 Habermas describes this fourth category of rights as applying “reflexively” to each of the four categories, including the fourth category itself.69 What he means is that through the processes described in the fourth category, the rights indicated in each of the four categories can be specified, and



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legal norms can be generated. In this way, Habermas links political autonomy and private autonomy. Only through citizens’ exercise of their political autonomy, he argues, can citizens legitimately secure their private autonomy by law. And exercise of that political autonomy in lawmaking must “orient” itself by the rights, described in the first three categories, that establish the private autonomy of a legal community’s members. Private and public autonomy, as well as basic rights and popular sovereignty, are thus “co-original.”70 Each presupposes the other, and neither may be ranked above the other in analyzing the idea of legitimate law. This reconciliation between private and public autonomy—and between basic rights and popular sovereignty—is located at an extraordinarily abstract level. At this point in Habermas’s presentation, we do not yet have the institutions of a constitutional state. Rather, what Habermas is describing is the sorts of rights that persons must accord one another if they are to establish themselves as a legal community with (and through) the medium of legitimate law.71 At this level of abstraction, the tension between basic rights and popular sovereignty is easy to harmonize. Our idea of legitimate law includes both terms. Exercise of popular sovereignty does not necessarily imperil basic rights, and basic rights are not necessarily an external limit on the exercise of that sovereignty. The harmoniousness of Habermas’s reconciliation, however, does not necessarily carry over when the system of rights is institutionalized in a constitutional state. Imagine a legislative body on the brink of enacting a statute that unquestionably would infringe on some group’s basic rights. It would be implausible to say that enactment of this statute would not be an exercise of sovereignty. Habermas might contend, sensibly enough, that such a statute would not be legitimate law, in that it would offend a basic right. But in that case, basic rights would operate as a constraint on the exercise of sovereignty. As Robert Alexy has shown, similar arguments apply if we imagine the legislators to be framing a constitution rather than a statute.72 The tension between basic rights and popular sovereignty, easily mediated in an abstract account of the “system of rights,” reappears once we imagine actual legislation, whether constitution making or enactment of ordinary statutes. I would not expect Habermas to disagree with the above analysis.73 His point, I think, is not that his account of the system of rights has utterly resolved the tension between popular sovereignty and basic rights. That would be inconsistent with the main theme of his discourse theory of law: an inescapable and ongoing tension between facticity and validity. Habermas in

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fact understands this tension to be an achievement of, and criterion for, the very rationalization processes that make the discourse principle, in his view, the only persuasive principle of justification.74 What Habermas is arguing, instead, is that conceptual accounts of law that privilege basic rights over democracy, or democracy over basic rights, are misguided. The two terms, rightly understood, mutually presuppose one another in the idea of legitimate law. The fourth category of rights, concerning citizens’ exercise of political autonomy, marks a shift in perspective. The first three categories describe, from the perspective of a “nonparticipant,”75 the “principles” by which the authors of law must “orient themselves . . . insofar as they make use of the legal medium at all.” But beginning with the political participation rights described in the fourth category, we shift, Habermas says, from the standpoint of a nonparticipant to that of a participant in democratic lawmaking processes. And here we need to speak not of the general discourse principle but of the principle of democracy. Habermas’s “principle of democracy” (or “democratic principle”) is a particularization of the discourse principle. Whereas the discourse principle addresses the justification of action norms in general, the democratic principle concerns only the justification of the legal norms that are to govern a particular community.76 Habermas’s formulation of this principle is extraordinarily strong: “The democratic principle states that only those laws may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted.”77 If Habermas means that legislation must receive universal assent to be legitimate, then that requirement would be excessively demanding in any world, especially the pluralistic worlds of modern societies. But Habermas qualifies and weakens this apparent requirement of universal assent. For one thing, the word can in his statement of the democracy principle leaves him room to maneuver. He does not say that the only legitimate laws are those that have received the citizenry’s universal assent in some factually occurring “discursive process.” Instead, he says only that if a statute is to “claim legitimacy,” then it must be one that “can” claim the assent of all in a discursive process. We need to know more about the discursive process Habermas has in mind. We know that it must be an idealized and counterfactual process; otherwise, all existing law would be illegitimate. But what outcomes could we expect in an idealized and counterfactual discourse? The answer depends on how much we idealize the counterfac-



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tual discourse. It would take considerable idealization, however, for the outcome to be universal assent with respect to any law—unless, that is, we understand “assent” to mean something more like “willingness to live with” rather than univocal endorsement.78 Habermas, even at this point in the development of his theory, has signaled that he might intend assent to mean something weaker than univocal endorsement. Recall that in stating the discourse principle, Habermas includes the possibility of bargaining and compromise. A compromise may be valid, Habermas allows, even if the parties reach agreement for different reasons.79 It will turn out, in his discussion of the constitutional state, that Habermas leaves considerable room for these options—to the point of acknowledging that “compromises make up the bulk of political decisionmaking.”80 We will see that many of the arrangements Habermas approves in his account of the constitutional state are inconsistent with any strong reading of the “universal assent” requirement. What Habermas does with his account of the constitutional state is to displace the problem of “universal assent” from legislative outcomes to lawmaking procedures. The question will be whether that solution is compelling, or whether, instead, the formulation of the democracy principle should be weakened from the outset. One more category in Habermas’s system of rights remains to be mentioned. I will have more to say about this category in the concluding section of Chapter Three, but for now I will only introduce it. While the first four categories correspond to familiar liberal rights,81 the fifth category takes up the “social and ecological rights” commonly associated with the welfare state.82 And while the first four categories are “absolutely justified,” the fifth category is justified only “relatively”—that is, only so far as social and ecological rights are necessary to guarantee exercise of the rights described in the first four categories.83 Habermas formulates this category as follows: 5. Basic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded, insofar as the current circumstances make this necessary if citizens are to have equal opportunities to utilize the civil rights listed in (1) through (4).84 One question will concern how far this “relative justification” extends. Another will be whether these social and ecological rights fairly could be called “basic” to modern legal orders generally, when they are not recognized as such in American constitutional law.

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2.3 a c om pa r ison w i t h r aw l s 2.3.1 Similarities and Points of Connection Habermas’s derivation of the system of rights will perhaps be more clear to some readers if contrasted with Rawls’s use of the “original position” device.85 Both Habermas and Rawls produce their basic principles through a hypothetical and counterfactual inquiry that is designed to ensure impartial and universalistic judgment. Rawls’s “original position” models impartiality through situational constraints on the parties who negotiate the social contract: Behind the “veil of ignorance,” none knows the social position, race or ethnicity, gender, natural endowments, or comprehensive moral/political doctrine of the citizens he represents.86 For Habermas, the impartiality and universalism constraints are built into the idea of rational discourse. Both theorists, then, consider what principles would be adopted if certain specified counterfactual conditions were satisfied. And both impose a unanimity criterion—in Rawls’s case, unanimity among parties in the original position and, in Habermas’s case, unanimity among members of his hypothetically self-constituting legal community. Further, both hypothetical devices are produced through generous consideration of circumstances in a modern democratic society. The considered convictions on which Rawls relies come from the fund of publicly acknowledged insights in a modern democratic culture.87 The “medium” or “form of law” on which Habermas relies—as well as the discourse principle— is generated through “rational reconstruction” of norms and practices in specifically modern and democratic societies. So, too, is Habermas’s idea that “private” and “public autonomy”—and the liberties of moderns and ancients, respectively—are to receive equal weight. The content of the basic principles that Habermas and Rawls generate is similar.88 Rawls’s first principle of justice prescribes that “each person has an equal claim to a fully adequate scheme of equal basic rights and liberties.”89 Similarly, the first category of Habermas’s system of rights is recognition of “basic rights that result from the politically autonomous elaboration of the right to the greatest possible measure of equal individual liberties.” 90 Habermas’s formulation, requiring maximization, recalls Rawls’s original formulation in Theory of Justice, which referred to “the most extensive total system” of equal basic liberties.91 Further, both Habermas and Rawls give special solicitude to citizens’ political liberties. Habermas presents his first three categories of basic



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rights—essentially, private rights—as defined through a “politically autonomous elaboration” of a relevant principle.92 That indicates that these rights are effective only if recognized through a suitably democratic process. Habermas’s fourth category gives content to the phrase politically autonomous elaboration, by mandating broad rights of political participation. In Habermas’s thinking, then, the political liberties not only receive protection as basic rights; they condition the concretization of the nonpolitical liberties. As we will see in considering his account of the principles of the constitutional state, Habermas makes clear that he means something more than just formal equality for political participation. For his part, Rawls argues that the political liberties—and those only— must be guaranteed their “fair value.” 93 In the course of discussing “stages” beyond the original position, Rawls indicates that his principles of justice require legislation that would seek to equalize what otherwise would be substantively unequal rights of political participation.94 Rawls, like Habermas, recognizes that unconditional private rights, particularly with respect to the ownership of property, would compromise formally equal rights of political participation.95 For Rawls as for Habermas, a prime task for constitutional courts is to maintain the fair value of political liberties.96 An additional parallel in content concerns the status that each theorist gives social-welfare rights. Habermas’s fifth category of rights—only “relatively justified,” unlike the four “absolutely justified” categories—guarantees “basic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded, insofar as the current circumstances make this necessary if citizens are to have equal opportunities to utilize the civil rights” of the other four categories. According to Habermas, then, social-welfare rights count as basic only to the extent that they may be instrumental for exercise of the other categories of rights. Rawls, too, gives welfare rights decidedly secondary status. True, he recognizes that social and economic inequality requires justification. That, of course, is the import of his difference principle. But the principle of equal basic liberties is lexically prior to the difference principle, and Rawls is clear that the difference principle does not count as a constitutional essential.97 Both Habermas and Rawls, then, tend to see material inequality as constitutionally problematic only so far as it affects the exercise of more basic (and primarily political) liberties.98 Rawls, however, differs from Habermas in that he more clearly pronounces satisfaction of citizens’ “basic needs” to be a “constitutional essential.”99

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Apart from similarities in content, Rawls and Habermas give similar status to the basic principles that they develop. Habermas describes his five categories of basic rights as “unsaturated.” The descriptions are placeholders, only anticipatory of their elaboration and concretization through actual political discourse. Rawls, too, distinguishes between the two principles that would be selected in the original position, on one hand, and the principles and rules that develop in the successive stages he describes (constitutional, legislative, and judicial).100 Both thus see constitutionalism as an ongoing project rather than something accomplished and completed with the ratification of a founding document.

2.3.2 The 1995 Rawls/Habermas Debate Habermas’s Between Facts and Norms was published in 1992; Rawls’s Political Liberalism in 1993. Two years after that latter date, the two theorists engaged in a much-anticipated debate on the pages of the Journal of Philosophy. Habermas began his discussion of Rawls’s work by stating: “I admire this project, share its intentions, and regard its essential results as correct.” The “dissent” Habermas went on to express was, he said, “within the bounds of a familial dispute.”101 Two points of apparent disagreement emerged that are relevant here. The first concerns Habermas’s charge that Rawls’s theory is insufficiently proceduralist in design. The original position, Rawls explains, models a pure procedural conception of justice: Whatever the parties select is just, with no independent criterion beyond the agreement itself. According to Habermas, however, Rawls’s theory relies, implicitly and improperly, on substantive conceptions. He has in mind Rawls’s idea of society as a system of cooperation, his idea of the well-ordered society, and particularly his conception of the person. These ideas, Habermas says, “introduce[] normative contents into the very procedure of justification,” and they are themselves “in need of a prior justification.” Further, Habermas argues, Rawls owes us a demonstration that these conceptions are “neutral toward conflicting worldviews and remai[n] uncontroversial after the veil of ignorance has been lifted.”102 Rawls, of course, makes clear from the outset that his conception of the person is normative. That conception—like the other fundamental “companion” conceptions—he finds “implicit in the public political culture of a democratic society.”103 The theory, Rawls makes clear, “starts from within a certain political tradition”104 and seeks to work out a theory of justice



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on that basis. The idea of persons as “free and equal” may not be neutral with respect to all “worldviews”—in the sense that many would reject that conception—but that seems to tax Rawls with failing to achieve a sort of neutrality to which he never aspired. Rawls distinguishes between neutrality of aim and neutrality of effect. While state institutions must not be “intended to favor any comprehensive doctrine,” inevitably they will produce, for the various such doctrines, differential “effects and influences.”105 The odd feature of Habermas’s objection here is that it seems to apply equally well to his own “proceduralist” theory. Rawls makes this observation, though sometimes in the course of suggesting that Habermas’s discourse theory, a “comprehensive view,” is a sort of Hegelian logic from which unfolds “all the allegedly substantial elements of religious and metaphysical doctrines.”106 The observation can be made more cogently (and fairly) than that (and Rawls does so elsewhere in his reply). Habermas generates his five categories of rights by applying “the discourse principle” to “the medium [or form] of law.” Both notions fairly could be called substantive—or, at least, both rest on assumptions that could be characterized in that way. Discourse, as Habermas conceives of it, unfolds among persons who, like Rawls’s “person,” are free and equal. The situation must exclude all force other than the force of the better argument, and all must have equal opportunities to raise topics, to offer information, arguments, and criticisms and to question the very terms of the discussion. The idea of discourse thus incorporates, in a thoroughgoing way, egalitarian premises. So does the discourse principle, under which a norm is justified only if it would meet with universal agreement in unconstrained discourse among all those affected. Neither could be called “neutral toward conflicting worldviews” or “uncontroversial.”107 Further, as Charles Larmore points out, the professedly “postmetaphysical” character of Habermas’s theory means that “rational belief ” in the truth of religious and metaphysical world views “is no longer possible.”108 In this sense, too, Habermas’s theory is substantive and, in Rawls’s sense, “comprehensive.” Has Habermas given a “prior justification” of his idea of discourse? Not in any sense that Rawls has failed to do. Habermas, in fact, developed the idea of discourse and the discourse principle through a rational reconstruction of specifically modern and (in Habermas’s sense) “rationalized” practices of justification. So, too, did his conception of the “medium of law” come from an analysis of specifically modern forms of law, with (for example) the characteristic separation between law and morality and characteristic conception of person as rights-bearer. If Rawls’s conception of the

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person is substantive and not uncontroversial, the same is true of Habermas’s notions of discourse and the medium of law. Habermas’s method of rational reconstruction seems not fundamentally different from Rawls’s way of working up the “person” conception.109 A second objection Habermas raises to Rawls’s political liberalism concerns the co-originality of the “liberties of the moderns” and the “liberties of the ancients.” By this distinction Rawls understands, as belonging to the moderns, “freedom of thought and conscience, certain basic rights of the person and of property, and the rule of law,” and as belonging to the ancients, “equal political liberties and the values of public life.”110 The distinction maps out closely against Habermas’s own distinction between private and public autonomy.111 The central theme of Habermas’s “system of rights” is that private and public (or, political) autonomy must be coequal and seen as mutually implicative. In this way he seeks to distinguish his proceduralist theory from liberalism and republicanism (as he understands them). Liberals, according to Habermas, have subordinated rights of political participation to (the other) basic liberal rights, and republicans have reversed that ranking. He tells the same story of Kant and Rousseau, despite the intention of both thinkers to perform a genuine reconciliation. Habermas acknowledges Rawls’s intention to reconcile and balance the liberties of the moderns with the liberties of the ancients.112 But according to Habermas, Rawls has failed, for reasons built into Rawls’s theoretical design. The principles of justice selected in the original position, Habermas maintains, are already justified. And so in the successive stages of the theory that Rawls describes, with the progressive lifting of the veil of ignorance, Rawls’s citizens “find themselves subject to principles and norms that have been anticipated in theory and have already become institutionalized beyond their control.” The constitution for them is not an ongoing “project” to be realized through exercise of political autonomy— Habermas’s position—but instead a fait accompli. The “essential discourses of legitimation have already taken place within the theory,” Habermas asserts, and so the task of Rawls’s citizens is not the “present exercise of political autonomy” but instead, only “preservation of political stability.”113 Further, Habermas (mis)reads Rawls as saying explicitly that participatory rights are largely instrumental for the protection of other basic rights.114 I find Habermas’s argument unconvincing. To begin with, Rawls includes “the political liberties and freedom of association” in his list of basic liberties alongside the others.115 He does not there suggest any ranking. Moreover, in his discussion of how to handle conflicts among basic liber-



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ties, his criterion is that the “central range of application” must be maintained for each of these liberties. Again, Rawls provides no ranking, and he makes no suggestion that the political liberties must give way.116 Further, Rawls places, in his first principle of justice, the requirement that the fair value of political liberties—and those alone—be guaranteed.117 That hardly suggests that these liberties are disfavored. If anything, it might be thought (incorrectly, but more reasonably) to mean the opposite. Habermas’s point seems to be that Rawls’s theory, by pronouncing the two principles justified before any actual discourses among flesh-andblood persons, presents Rawls’s citizens as constrained.118 To use one of Habermas’s favorite motifs, they are the addressees but not the authors of the principles of justice. But first, even if the basic principles are taken as fixed and unalterable, still (as Rawls explains) much work needs to be done in concretizing and specifying them—and in enacting them into valid law. This is the work of the constitutional convention, legislative stage, and judicial stage.119 Moreover, Habermas is forgetting that, for Rawls, the theory is fully justified only when publicly justified and accepted. And here again, the objection Habermas raises would apply equally to his own theory. Habermas works up the five categories of rights through his own hypothetical procedure. The question he answers with his system of rights is: What sorts of rights must persons accord one another if they are to establish themselves as a legal community with (and through) the medium of legitimate law? The first four categories of rights Habermas takes to be “absolutely justified,” and the fifth category “relatively justified” (that is, justified so far as necessary to guarantee the other categories of rights). Do these categories of rights, generated through the counterfactual device of Habermas’s theory, then confront Habermas’s citizens as pregiven, stripping them of their political autonomy? Habermas’s position seems completely parallel to the position he criticizes in Rawls.120 With respect to his own theory, Habermas argues that even though he has pronounced four categories of rights to be absolutely justified, those rights do not operate as a constraint on citizens or legislators’ political autonomy. The reason why not is essentially a matter of definition. The basic rights Habermas identifies are, he says, generated by applying the discourse principle to the medium of law. As conditions necessary for the production of legitimate law, they cannot be seen as constraints on the political autonomy that they enable.121 Perhaps for this reason, Habermas suggests that Rawls would have done better to ground his theory not in the original position but in the idea of legitimate law and the discourse

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principle.122 He then would have the same escape that Habermas thinks is open to him. But as I have argued in section 2.2.2, the escape works only to reconcile abstractly the ideas of basic rights and popular sovereignty. Rawls, too, can make that claim—or, put in terms of his own theory, he can claim to have conceptually reconciled, without subordinating either, the political liberties with other basic liberties. But, outside the bounds of the theory, and from the perspective of a contrary-minded legislator, basic liberties do appear to be a constraint on lawmaking—so long as we don’t simply define lawmaking as the making of law consistent with the recognition of basic rights. In short, I see more agreement than disagreement between Habermas and Rawls as to the political liberties’ status. Habermas’s criticism on this point is not telling.

2.4 t h e c ons t i t u t ion a l s t a t e Habermas’s reconstructive theory of the Rechtsstaat or “constitutional state,” like his reconstructive account as a whole, is keyed to the issue of modern legal orders’ legitimacy. But the reconstructive theory itself incorporates the more general tension between facticity and validity, and so it, too, has a side that corresponds to “validity” and a side that corresponds to “facticity.” The system of rights occupies the former position in Habermas’s theory, setting out the normative conditions required for any modern system of law to count as legitimate. The rights set forth in that part of Habermas’s theory are “unsaturated placeholders,” not concrete legal rights. That is, they are seen as the conditions that orient legitimate lawmaking, not as elements of positive law. With the transition to the principles of the constitutional state, however, Habermas considers the sorts of arrangements that would have to be set forth in positive law for a legal order to count as legitimate. And so, at this point, with the idea of law’s positivity before us, we move to the “facticity” side of Habermas’s organizing distinction—even as we still consider the more general issue of legal legitimacy. Habermas’s account of the constitutional state addresses the institutions, procedures, and mechanisms that are required if the abstract categories of rights he has described are to be implemented concretely through positive law. The term Rechtsstaat, translated in Between Facts and Norms as “constitutional state” or “rule of law,” compounds the German words for “law” and “state.” Habermas’s theory of the Rechtsstaat first explores the implied



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connection—Habermas says an “internal connection”123—between law and political power. Then, by way of explaining the link between the democratic idea that legitimates law and the operation of political power, he develops a distinction between “communicative power” and “administrative power.” The idea of the democratic Rechtsstaat, or constitutional state, Habermas claims, is that citizens’ communicative power is the source of legitimate law, and administrative power—or, power as a steering medium— should remain “tied” to that lawmaking power 124 in both the generation and application of administrative power. Habermas sees the separation of powers as a mechanism that guards against the illegitimate use of administrative power. He explicates that notion by distinguishing among different kinds of discourse appropriate to the various governmental powers.

2.4.1 The Internal Link between Law and Political Power Habermas has said that the validity of a legal norm implies its adequate enforcement. To that extent, law and the exercise of power are conceptually—or, as Habermas likes to say, “internally”125—linked. This connection of law and political power appears in the enforcement of rights through state-organized courts, with state personnel imposing sanctions to enforce courts’ judgments where necessary. Habermas’s reconstructive theory of the constitutional state goes further. Law and political power are linked not just through enforcement but in the legislative process as well. Legitimate lawmaking requires democratic procedure that is established with the “help of governmental power.” And the executive power implements enacted legal norms through the “organized offices of a public administration.”126 In all these ways, Habermas says, “Political power is not externally juxtaposed to law but is rather presupposed by law.”127 The relation between law and political power is reciprocal. Not only does law presuppose political power; political power, at least in a constitutional state, presupposes law. The system of state offices, through which political power is exercised, is organized through law. And political power is exercised largely through the form of law. Political decisions, Habermas maintains, “owe their collective bindingness to the legal form in which they are clad.”128 Law and political power thus reciprocally perform functions for one another. Seen from a systems-theoretical point of view, Habermas says, law and politics mutually constitute one another’s “codes.” Here Habermas is flirting with Niklas Luhmann’s autopoietic theory—a surprising move, given

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Habermas’s frequently expressed distaste for the autopoietic (rather than Parsonsian) variant of systems theory.129 According to Luhmann, modern societies are differentiated into a plurality of functional subsystems, such as the economy, politics, law, and science, each of which is a self-producing and self-reproducing network of communication. Each subsystem’s communication is organized by a binary “code,” or distinction between opposed values, that demarcates the subsystem from its environment. Habermas follows Luhmann in taking law’s binary code to be the distinction between legal and illegal.130 This distinction, Habermas observes, is applied to particular cases in state-organized courts and enforced through governmental power. In this way, political power is constitutive for law’s binary code of legal and illegal.131 Habermas—like Luhmann—is much less clear on what the binary “code” for politics might be.132 Recalling his discussion in Theory of Communicative Action, Habermas describes the political “power code” in terms of the giving of commands.133 Apparently, then, the binary power code is the distinction between giving and following commands. And it is law, Habermas argues, that specifies who has the power of command and who has the obligation to follow.134 Habermas’s apparent reliance on this aspect of Luhmann’s theory is peculiar for at least three reasons. First, a system’s binary code, Luhmann argues, is what “closes” the system’s network of communication, and this idea of system closure is, elsewhere in Between Facts and Norms, the main target of Habermas’s anti-Luhmann polemics. As I suggest at the end of Chapter Four, I believe that Habermas’s polemics mischaracterize Luhmann’s work generally and the idea of system closure in particular. Nevertheless, Habermas seems to be appropriating an idea that, in his view, has pernicious theoretical consequences. This inclination is difficult to explain. Second, because Luhmann takes the binary code to be what defines both a system’s unity and its distinction from other systems,135 Habermas’s account of the different system codes for law and politics would commit him—if he were serious about the idea of the binary code—to the position that law and politics are distinct (though closely linked) systems of communication. While Habermas does not make his view on this point entirely clear, he seems on the whole to favor treating law as part of a more general political system, not as a separate system.136 Appropriation of “binary coding,” then is not easy to reconcile with Habermas’s main line of argument. Third, while much in Luhmann’s autopoietic theory is well worth considering—even for Habermas’s purposes—the idea of the binary code is, for reasons I explain at the end of Chapter Four, not the most attractive aspect of Luhmann’s work.



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In fact, however, Habermas does not make systematic use of Luhmann’s “binary coding” idea. It appears intermittently,137 but, in each instance, it can be translated into more familiar conceptions. In the passage we are now considering, the point is that law and political power reciprocally perform functions for one another. That point does not presuppose that legal or political communication is organized by a binary code. Still, even with the notion of binary coding excised, the idea of political power needs further analysis. As Habermas points out, not all exercises of political power are legitimate—not even when they are presented in legal form.138 And so the idea of democracy, basic to law’s legitimacy, requires a differentiation in the notion of power that can help distinguish between the legitimate and illegitimate exercise of power. That differentiation in the notion of power is between “communicative” and “administrative” power.

2.4.2 Communicative and Administrative Power In contrast to his interpretation of power as command in Theory of Communicative Action, Habermas had developed four years earlier a notion that he called a “communications concept of power.”139 What Habermas meant then, and what he means now by “communicative power,” is the “motivating force” of common convictions reached through unconstrained communicative action.140 Here Habermas draws on the notion of “rational motivation” that he developed in his account of the way that mutual recognition of validity claims coordinates communicative action. Habermas sees the communicative power of citizens as “jurisgenerative,” that is, as a way of “influenc[ing] the production of legitimate law.”141 The precondition for this “jurisgenerative” power is the existence of “undeformed public spheres”142 of political discussion that are linked to the formal institutions in which law is made.143 In turn, the precondition for undeformed public spheres is a “vibrant” civil society,144 or, network of voluntary associations that are autonomous from state control.145 These associations, Habermas maintains, are the social basis for the political public sphere.146 Habermas’s idea of democracy, then, involves much more than formal governmental institutions and periodic voting rituals. It requires broad, active, and ongoing participation by the citizenry. In this sense, Habermas’s theory of law and democracy is not purely state centered.147 It depends heavily on communication outside of formal governmental channels—communication that, if it is to be “jurisgenerative,” must influence official governmental decision making.148

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This notion of communicative power is the basis for Habermas’s reinterpretation of popular sovereignty. From a discourse-theoretical point of view, popular sovereignty means that “all political power derives from the communicative power of citizens.” Understood at full strength, this idea of popular sovereignty would require all exercises of power to be “oriented and legitimated by the laws citizens give themselves in a discursively structured opinion- and will-formation.” And ideally, all relevant questions would be “processed in discourses and negotiations on the basis of the best available information and arguments.”149 Despite the reference to “laws” that “citizens give themselves,” however, Habermas acknowledges that in political communities of any size, there can be no convocation of all the citizenry. Parliamentary bodies are indispensable. But what Habermas insists on is that these bodies “must remain anchored in the informal streams of communication emerging from public spheres that are open to all political parties, associations, and citizens.”150 Only in this way can the communicative power of public discussions among citizens influence the production of legitimate law. Habermas acknowledges further that the idea of communicative power addresses only the generation of political power, not the exercise of existing power. And even if communicative power is the source of legitimate law, and thus the source of legitimate political power, Habermas has said that the idea of a legal norm’s validity implies that the norm is adequately enforced through sanctions. The exercise of power in the form of sanctions, however, does not itself conform to the model of communicative power. Moreover, Habermas acknowledges that the idea of power as command, not power as collective will-formation, is essential to the organization and operation of governmental entities. Politics, then, cannot be reduced to the jurisgenerative operation of communicative power. “The concept of the political in its full sense,” Habermas says, “also includes the use of administrative power within the political system, as well as the competition for access to that system.”151 “Administrative power,” the counterconcept to communicative power, is the notion of power as the “steering medium” of a self-regulating administrative system.152 This systems-theoretical conception of power appeared front and center in Theory of Communicative Action. To recall that notion: Power, conceived of as official command backed by sanctions, allows actors to circumvent the process of reaching communicative agreement over contested claims to validity. Communicative power, then, develops through communicative action and discourse; administrative power circumvents



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both. The form of communicative power that is constitutive for democracy emerges outside the formal bureaucratic organizations; administrative power develops within those bureaucracies. The relation between administrative and communicative power is a central problem for democracy. In Habermas’s terms, how can the bureaucratic exercise of administrative power be linked to, and constrained by, citizens’ communicative power? That is one of the questions Habermas’s theory as a whole is designed to address. His preliminary answer is general and equivocal. The idea of the Rechtsstaat, he says, is that the administrative system must be “tied to the lawmaking communicative power. . . . Administrative power should not reproduce itself only on its own terms but should only be permitted to regenerate from the conversion of communicative power.” At the same time, however, the constitutional state must avoid “disrupting the power code by interfering with the self-steering mechanism of the administrative system.”153 This preliminary answer moves in two directions. The first part suggests that the administrative system may not legitimately become independent of citizens’ communicative power. But Habermas adds immediately that the administrative system is “self-steering” and its “power code” must not be “interfer[ed]” with. The two prescriptions are not compatible. The problem is that Habermas’s systems-theoretical concepts are incompatible with his present project: a normative theory of democracy. The concepts of “systems” and “steering media” developed in Theory of Communicative Action were part of a more general model of modern societies in which genuine democracy, as Habermas understands it, was literally inconceivable. The axis of that model is the distinction between system and lifeworld. On one side are the economic and administrative systems, operating through the steering media of money and power. On the other is the “lifeworld,” with its “structural components” of culture, society, and personality—or, as Habermas alternatively conceives of the lifeworld, the “communicatively structured contexts of action” that are distinct from the money- and power-driven economic and administrative systems.154 Theory of Communicative Action presents the relation between system and lifeworld systems-theoretically, as “interchange” controlled by “steering media.” But because, according to Habermas, only the economic and administrative systems have such steering media, the interchange model presents the relation between system and lifeworld as steered only by money and power. On this conception, the lifeworld’s contribution to the administrative system cannot be the “communicative power” of a normative consensus among citizens; instead, it must be assimilated to the “steering media” of

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money and power. And so in Habermas’s systems-theoretical model of interchange, the lifeworld’s inputs to the administrative system are “mass loyalty” and taxes, with the administrative system outputting, in exchange, political decisions and “organizational accomplishments.”155 This austere model of system/lifeworld interchange has no place for the “jurisgenerative” communicative power Habermas now attributes to citizens’ discussions in the political public sphere. The passage from Between Facts and Norms that I quoted two paragraphs above—noting that systems are “self-steering,” with their own “codes” that cannot be “interfer[ed] with”—carries over the idea of systems’ imperviousness to normative influences. The passage is typical of Habermas’s official professions of commitment to the system/lifeworld model of society. But in fact, as I argue in Chapter Four, the social-theoretical model Habermas develops toward the end of Between Facts and Norms is inconsistent with the system/lifeworld model. It had to be. Otherwise, Habermas could not maintain that communicative power may influence and constrain the exercise of administrative power. This is not to deny that bureaucracies tend to insulate themselves from democratic influences, nor is it to deny that there sometimes may be good reasons to limit the extent of such influences. My point instead is that to describe systems as “self-steering,” with “codes” that cannot be “interfer[ed] with,” presents a tension as if it were a contradiction. Further—although this claim takes me beyond the scope of the present chapter—the conception of the political system that Habermas presents in Between Facts and Norms is superior to the notion of the administrative system he defended in Theory of Communicative Action. The more recent idea of a “system,” while incompletely theorized, allows a more nuanced and balanced account of legal and political processes. In any event, the administrative system cannot be entirely “self-steering,” on Habermas’s premises, because its “power code” is the product of law. Legitimate law, on Habermas’s view, is both the product of democratic lawmaking and the mechanism that defines the structures of official command and obedience that Habermas calls “administrative power.” Law, in other words, is a mechanism for effecting, and regulating, what Habermas calls the “conversion of communicative into administrative power.”156 The particular legal techniques for constraining the official use of power that Habermas mentions are familiar: an independent and impartial judiciary bound by the rule of law, legal controls over the state administration, and the separation of powers. What is interesting in Habermas’s



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account, however, is his explication of these familiar ideas, practices, institutions and norms through discourse theory—and in particular, through a typology of the different forms of discourse and their relation to the different forms in which political power is exercised. In section 2.4.3, I analyze Habermas’s typology of discourses, as well as the idea of bargaining that sits uneasily at the boundary of Habermas’s discourse theory. Then, in section 2.4.4, I consider Habermas’s recasting of the ways in which the constitutional state binds administrative power to communicative power.

2.4.3 The Typology of Discourse and Bargaining I noted earlier the “discourse principle” Habermas takes to govern the process of justifying norms of action. That principle, he said, is neutral with respect to different kinds of norms (moral and legal, for example). Habermas further suggested that the general discourse principle operates differently in different kinds of discourse. Specifically, he noted in distinguishing between the “democracy principle” and “the moral principle” the different “reference systems” for legal and moral discourse—the legal community and “humanity or a presupposed republic of world citizens,” respectively. This idea of a “reference system” is one basis for Habermas’s distinctions among the various kinds of discourse related to norms and social action. A second concerns the kinds of reasons that are acceptable in the various forms of discourse. Before his recent work on law, Habermas had settled on a tripartite division of discourses in which “practical reason” may be employed: moral, ethical, and pragmatic.157 Habermas’s work on law now understands legal discourse—or rather, the various kinds of legal discourse appropriate to different legal institutions and practices—as drawing on, but irreducible to, each of these three types. Pragmatic issues concern the selection of appropriate means for achieving given goals, or, should the goals become problematic, then the weighing of possible goals against accepted preference standards, such as efficiency, or against accepted values.158 Pragmatic discourses are directed toward justifying “technical and strategic recommendations.”159 The validity of these recommendations is determined by the accuracy of the empirical knowledge on which they depend.160 Habermas refers to the “purposive” employment of practical reason in pragmatic discourses.161 Ethical issues arise when pragmatic preference standards or valueorientations become questionable.162 Habermas distinguishes between two kinds of ethical deliberation, one at the individual level and the other

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at the social level. Individual ethical deliberation, which Habermas refers to as “existential” or “clinical” deliberation, concerns the significance of a choice to a particular life-project or to “the kind of person one is and would like to be.”163 This decision is not purely individual but depends to a considerable extent on one’s social circumstances and the collective form of life one inhabits.164 Nonetheless, the ethical deliberation that takes place at the collective level—concerning not individual but collective identity— has a “different meaning.” Habermas speaks in this connection of “ethicalpolitical questions.”165 Discourse aimed at establishing an “authentic” understanding of the collectivity’s identity—and realizing that identity through collective decisions and courses of action—is “ethical-political discourse.”166 The reference system here is a “shared form of life,” and the standard is what is “good for us,” the reflecting community.167 This hyphenated conjunction of “ethical” with “political,” however, tends to obscure a basic problem for modern multicultural societies. Habermas ordinarily conceives of “ethical,” unmodified, as referring to a particular community that shares a form of life and a deep consensus over substantive values.168 But as Habermas notes in his criticism of “civic republican” theorists from Rousseau to Frank Michelman, one cannot conceive of modern pluralistic societies as if they were this kind of close-knit community.169 The “we” who are (on Habermas’s theory) authors and addressees of legal norms are a legal community, not an ethically homogenous group.170 This point has significant implications for Habermas’s notion of “ethical-political discourse.” Despite Habermas’s statement that the standard for such discourse is what is “good for us,” differences among conceptions of the good in multicultural societies likely prevent consensus—in the sense of substantive agreement on the merits—as to at least many matters Habermas deems ethical. Further, if consensus must be the universal (or nearuniversal) agreement that Habermas’s discourse principle seems to require, then the problem for Habermas is more difficult still. What Habermas must develop, then, is a way in which, consistent with the discourse principle, modern societies can deal with the problem of “ethical” disagreement. One option Habermas rejects would be to exclude, or at least radically devalue, all contributions to political discussion that presuppose the superiority of the speaker’s conception of the good.171 That option, Habermas claims, would bracket out ethical questions from politics and advantage the “inherited background of settled traditions.” Further, it would eliminate the possibility that discursive engagement might produce consensus as to ethical matters.172



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But what kind of consensus could be expected about ethical matters? To the extent that these matters are deeply rooted in competing conceptions of the good, and to the extent that these conceptions constitute the identity of communities and their members, then, as Thomas McCarthy has argued, “persistent ethical disagreements” are likely.173 The standard that the discourse principle sets—requiring, with respect to norms, that “all possibly affected persons could agree as participants in [a] rational discourse[]”174—seems unattainable. And Habermas realizes that it is. For that reason, his response—on this issue and elsewhere—will be to reinterpret the discourse principle to require not consensus as to the substantive norm in question but, instead, consensus as to the lawmaking procedures through which discourse is to take place.175 This is one sense in which Habermas’s theory is, as he likes to say, “proceduralist.” A recurring issue throughout my argument, however, will be whether this proceduralist move is consistent with the discourse principle or whether, if it is not, Habermas’s statement of the discourse principle must be modified. We are not quite yet in a position to address that issue. We need the rest of Habermas’s account of the various forms of discourse. The third form of discourse in Habermas’s typology is “moral discourse.” Just as Habermas’s use of the word ethical required explanation, so does his use of the word moral. Unlike ethical (or ethical-political) discourse, moral discourse refers not to a particular community or shared form of life, but to an unlimited communication community.176 Moral norms, thus, are to be justified not in terms of their coherence with this or that collective form of life, but according to their consistency with “justice,” where the term justice is to be understood in a strongly universalistic sense. On Habermas’s interpretation of moral discourse, a norm is morally justified only if it expresses a “categorical” rather than “conditional” or “hypothetical” imperative.177 In other words, a moral norm is justified only if all those potentially affected—not just all members of a particular collectivity—could agree to it in a rational discourse.178 It must, then, express an entirely general interest.179 As Habermas acknowledges, one consequence of conceiving of morality in this way is that norms will be justifiable only if they are extraordinarily abstract.180 And that raises the question as to how such abstract principles could possibly be applied. Here Habermas follows the lead of Klaus Günther in distinguishing between discourses of justification and discourses of application. While a moral norm is justified only if it passes the discourse principle’s universalization test, its application is regulated

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instead by a “principle of appropriateness.” Determining which of various valid norms is “appropriate” to a particular situation, and how it applies to that situation, requires, Habermas allows, consideration of “all the relevant features of the situation conceived as exhaustively as possible.”181 We will return to this matter in considering Habermas’s analysis of adjudication. For now it is sufficient to note that Habermas distinguishes between the justification and application of moral norms and that he makes a parallel distinction with respect to legal norms as well. Alongside these forms of discourse, Habermas places the idea of bargaining. With this notion, he begins to address some of the issues I have raised above. “In complex societies,” Habermas contends—that is, in societies marked by stratification, differentiation of interest positions, and a priority on self-interested action—“it is often the case that” neither moral nor ethical discourse will result in consensus. This is so, he says, “whenever it turns out that . . . the proposed regulations touch on . . . diverse interests . . . without any generalizable interest or clear priority of some one value being able to vindicate itself.” In such cases, he observes, “there remains the alternative of bargaining, that is, negotiation between successoriented parties who are willing to cooperate.” The aim of bargaining is to resolve conflicts not resolvable through discourse. And that means that the compromise the parties negotiate (1) must be preferable to no agreement at all; (2) must address the problem of free riders; and (3) must exclude exploitation, or, a situation in which some parties “contribute more to the cooperative arrangement than they gain from it.”182 Habermas does not make entirely clear whether these three conditions are simply an explication of what we mean by a legitimate compromise reached through bargaining, or instead, criteria that are to be applied to evaluate whether a given compromise is legitimate or illegitimate. My sense is that he means the former. Supporting this interpretation is the fact that Habermas turns immediately to the question whether bargaining is inconsistent with the discourse principle. And that, for Habermas’s discourse theory, is the question whether bargaining could be considered legitimate. “The discursive chain of a rational will-formation would snap at such points of compromise,” Habermas says, “if the discourse principle could not be brought to bear at least indirectly on bargaining processes.”183 Habermas already has signaled the conclusion he will reach. In stating the discourse principle, Habermas said that the term rational discourse “refers indirectly to bargaining processes insofar as these are regulated by discursively grounded procedures.”184



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The relation Habermas forges between discourse and bargaining is indirect at best. Discourse, he has said, imposes “symmetry conditions”: The participants must have equal opportunities to raise topics, arguments, and criticisms. The parallel in the bargaining situation is that the parties must have “equal opportunity for pressure,” that is, equal bargaining power. Because generally this condition is not satisfied at the outset, procedures must be devised that will equalize the parties’ opportunity for pressure. “To the extent that” these conditions are satisfied, Habermas maintains, compromises that result from bargaining are presumptively fair. But whether the procedures are adequate is according to Habermas a question for moral discourse. And so is the matter whether a given question is amenable to bargaining or whether, instead, it is a question in which generalizable interests are at stake.185 In these ways, procedures for bargaining must be “discursively grounded,” as Habermas states in announcing the discourse principle. And thus although bargaining involves pressure and appeal to interests rather than to rational conviction, it is governed “indirectly” by the discourse principle. As a general matter, this concession to bargaining rather than discourse is wise. Habermas, after all, is “reconstructing” the idea of the constitutional state. And because, as he acknowledges, the bulk of political decision making involves compromise rather than purely discursive agreement,186 an interpretation of the constitutional state that branded bargaining as per se illegitimate would not be a plausible reconstruction. But the reconciliation between bargaining and discourse that Habermas tries to establish raises two questions. First, the idea of bargaining suggests a refinement in the theory of action underlying Habermas’s discourse theory. The basic distinction in Habermas’s typology of social action, I said in Chapter One, is between communicative and strategic action. Habermas’s difficulties in characterizing open strategic action led him to allow that most actual interactions are a “mélange” of the two types. Bargaining seems a clear example of this “mélange.” Habermas describes it as “success-oriented” and designed to exert influence on one’s opposite number through pressure. In these respects, as Habermas says, it can be characterized as strategic interaction.187 But on the other hand, bargaining seeks to coordinate the bargainers’ respective plans of action through a communicatively achieved agreement. In that respect, it resembles communicative action. Habermas, of course, could reply that bargainers do not necessarily act communicatively without reserve—in colloquial terms, they do not necessarily place all their cards on the table. Moreover, to the extent

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that bargainers pursue different interests, they do not reach agreement for the same reasons, as Habermas’s notion of discursive agreement requires.188 But still, bargaining, to the extent it seeks cooperation and a common plan, is distinct from other forms of strategic action. Given its social significance, as well as the place it occupies in Habermas’s discourse theory of law and democracy, Habermas likely should recognize bargaining as a distinct type of rational action, irreducible either to communicative action or to strategic action in which cooperation and common action are not envisioned.189 The second question Habermas’s account of bargaining raises is whether he can plausibly claim that specifically moral discourse must ground and legitimate bargaining procedures. The procedural rules governing bargaining are, in fact, legal rather than moral norms—that is, they bind members of a legal community, not humanity as such. While legal norms “may not contradict moral norms,”190 rules governing bargaining would have to be far more concrete and detailed than abstract moral principles. And so for that reason, their justification would not be possible in purely moral discourse. Perhaps Habermas means that bargaining-related rules are applications of moral principles. But that seems inconsistent with the way Habermas has presented the idea of “application discourses.” Such discourses apply general norms to particular circumstances. Bargaining rules of course apply to particular circumstances, but as legal rules they must be of general applicability. The likely reason for this slip is Habermas’s anxiety about allowing compromise procedures to be governed by rules that themselves are likely the products of compromise. If that were so, then “the discursive chain of a rational will-formation would snap at such points of compromise.”191 Thus his statement that, while bargaining and compromise are not themselves forms of discourse, they are “indirectly governed” by the discourse principle. The problem, however, is that these practices are indirectly governed by the discourse principle only in the sense that the governing rules presumably are the product of a discursive lawmaking process. But that is true of any legally regulated activity, on Habermas’s scheme: All legal rules, if legitimate, must be the product of discursive lawmaking. Habermas’s recourse to moral discourse as the alleged source of bargaining rules is designed to avoid the conclusion that bargaining has no special connection to the discourse principle. But his argument cannot be sustained. Bargaining is not itself discourse, nor is it governed by rules that are products of moral discourse alone, nor is it “indirectly governed” by the discourse principle in any special way.



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2.4.4 Binding Administrative Power to Communicative Power This typology of discourse and bargaining is the basis for Habermas’s reading of the way that the constitutional state binds administrative to communicative power. While he speaks of “legal discourse” in the singular, it turns out that the permissible scope of this discourse varies, depending on whether we are speaking of democratic lawmaking, adjudication, or the “administration” of law more narrowly conceived. These activities differ in their legitimate access to the “different sorts of reasons” and to the “corresponding forms of communication.”192 Habermas’s reinterpretation of the separation of powers incorporates this insight. It is easiest to begin with the function of democratic lawmaking, because lawmakers on Habermas’s theory have access to the “full range” of reasons.193 Here, despite his lapse with respect to the grounding of bargaining and compromise, Habermas is particularly attentive to the differences between legal and moral norms that entail differences in the respective modes of justification. Moral arguments are relevant to the justification of legal norms, Habermas says,194 but they do not exhaust the range of permissible arguments. Legal norms govern a particular legal community, not humanity as such. They are teleological, not purely justice oriented (in Habermas’s deontological sense of justice), involving “the cooperative pursuit of collective goals and the safeguarding of collective goods.” For that reason the justification of legal norms must be open to “ethical-political” concerns. Further, as compared to moral norms (as Habermas conceives of them), legal norms are much more concrete in content. Some legal norms respond only to the need for legal certainty. The American rule of driving on the right is the most obvious example, but other norms respond primarily to the need for certainty. Even beyond these norms, the matters law regulates are not necessarily ones on which one could expect universal agreement, and for reasons Habermas has suggested, the possibility of compromises that balance interests cannot be excluded altogether from the legislative process. Finally, because the validity of legal norms presupposes their adequate enforcement, “pragmatic” issues may enter into legitimate lawmaking in this way as well.195 In short, lawmaking implicates the various kinds of issues Habermas has distinguished—moral, ethical, and pragmatic—and, accordingly, the corresponding forms of discourse all may be permissible. To mark the special character of legal justification, as well as the differences between legal and moral validity, Habermas amends slightly the tripartite division of validity

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claims that he introduced with the concept of communicative action. The validity claim relevant to legal norms is “legitimacy,” in distinction from the claim to “rightness” proper to moral norms. The standard Habermas suggests for measuring this legitimacy is whether the norm expresses “a reasonable consensus in view of all [the various] aspects and problem types.”196 The fact that Habermas selects a new name for law’s validity claim— legitimacy, rather than rightness—is significant. So, too, is his choice of name. We might take many legal rules to be “legitimate” but still believe they are unwise or suboptimal compared to alternatives. The term legitimacy suggests greater focus on procedure and origins than on substantive merit. This proceduralist turn responds to the strength with which Habermas has formulated the discourse principle. That principle, again, requires universal assent in a discursive process. Even if we understand universal assent in a somewhat relaxed manner—emphasizing the “could” in the phrase “could agree as participants in rational discourses”—the requirement still seems excessive. To name just two barriers to discursive consensus: Habermas has allowed the possibility (even necessity) of compromise over pragmatic issues, and he has said that “ethical” matters may not be susceptible either of discursive consensus or compromise. And so Habermas has to reinterpret the discourse principle, taking it to apply not so much to the substance of legal norms as to the procedure through which such norms are justified and enacted. The new term, then, is legitimacy rather than rightness, and the burden of legitimacy, here as elsewhere in Habermas’s theory, is borne by democratic procedure.197 One aspect of democratic procedure concerns the process of lawmaking within formally organized legislative bodies. As the idea of the constitutional state requires, this lawmaking process is itself legally regulated. Habermas mentions the standard issues here—periodic and secret elections with equal representation, competition among political parties, committee organization, generally public deliberations, and various legislative formalities. He does not argue that there is some uniquely correct way to address these issues. He says, instead, that these procedural matters must be “regulated in the light of the discourse principle,” to ensure that “the necessary communicative presuppositions of pragmatic, ethical, and moral discourses, on one hand, and the conditions for fair bargaining, on the other, can be sufficiently fulfilled.”198 In using the word sufficiently, Habermas is acknowledging that the idealized version of rational discourse never will be fully realized within legislative bodies. The principle of majority rule, for example, is an important



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limit. The pressures of time and the need for action require decision rather than endless discourse. Habermas suggests that a majority vote does not necessarily mean the end of discourse, just perhaps a “caesura in an ongoing discussion” or “the interim result of a discursive opinion-forming process.” But he acknowledges that legislative decisions, if revisable through new legislation, are less revisable than discursive conclusions on which collective action does not immediately depend.199 What Habermas is wrestling with here is the tension between two things he wants to affirm: his discourse principle, with its requirement of universal assent among all those affected, and the requirements of any imaginably functioning political system. Habermas wants both to argue that his discourse principle has been institutionalized, in the form of the democracy principle, and also to claim that he has “reconstructed,” from a nonutopian point of view, the “self-understanding” of existing Western constitutional democracies. This problem has come up in four contexts: (1) Habermas’s acknowledgment that lawmaking requires representative government, not a discourse among all the citizenry that by itself would produce binding law; (2) his recognition that “ethical” disagreement may make discursive consensus impossible; (3) his acknowledgment that the detailed nature of legislated norms, together with the connection between legislation and interests, makes bargaining and compromise unavoidable; and (4) his recognition that the legislative procedures that are to cure the problems mentioned in (1) through (3) above are themselves not entirely consistent with an idealized notion of discourse. In short, Habermas has to rely on an idealized notion of discourse to support his “universal assent” requirement, but that idealized notion of discourse is inconsistent with the requirements of any imaginably existing political system. In (1) through (3), Habermas has retreated from arguing that legislative outcomes must be “legitimate” in his original sense—capable of receiving the citizenry’s universal assent in discourse—to arguing that democratic procedure must carry the weight of legitimation. With (4), however, he now has to confront that existing democratic procedures are themselves far from what an idealized notion of discourse would prescribe. But he cannot reject the idealized notion of discourse without rejecting the idea of universal assent that is at the heart of the discourse and democracy principles. Ultimately, the shift to a procedural focus cannot save Habermas’s discourse principle. Procedural norms are positive legal norms, and as such, they are within the scope of the discourse principle. The democracy

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principle—the version of the discourse principle applicable to specifically legal norms—provides that “only those [laws] may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted.”200 Nothing in this statement exempts procedural norms, and for good reason. If procedure is to bear the weight of legal and political legitimacy, then procedural norms, above all, would have to qualify as legitimate. Given the discourse and democracy principles, that seems to require that the legal norms that constitute and regulate the democratic lawmaking process must themselves be capable of receiving the citizenry’s universal assent.201 We have here the same problem that prompted Habermas to retreat to procedural justification in the first place. The nuts and bolts of democratic procedure—whether to have a bicameral or unicameral legislature, the number of representatives, procedures for committee and leadership assignment, and so on—hardly seem susceptible of universal agreement in any nonidealized discourse. The maze of procedural detail, like the maze of detail in substantive legal norms, resists universal discursive consensus and calls, instead, for compromise at any number of points. Habermas seems to recognize this point when he notes that discourse theory cannot prescribe any set of uniquely correct procedures. He does not seem to recognize, however, that because procedural rules, too, are positive legal norms, they would be subject to the universal assent requirement of the discourse and democracy principles. Habermas might try to stave off this conclusion by arguing that only the most general procedural arrangements are susceptible of universal agreement (even in idealized discourse) but that these arrangements suffice to get the legislative machine in motion. This argument has two problems. First, even the most basic constitutional provisions for legislative process involve considerable detail—the number of representatives, for example—and, for reasons stated, universal discursive consensus on these matters seems unlikely. Habermas perhaps recognizes this point implicitly when he acknowledges that the “system of rights”—the basis for any legitimate constitutional project, and a system that includes democratic procedures within its ambit—could be realized in a number of permissible ways. The second problem with the argument that I am considering is that it demonstrates further just how little can be justified directly by Habermas’s discourse principle. Only the most general procedural arrangements could be substantively justified; all other legal norms would enjoy merely a presumption of rationality, so far as their generation was procedurally proper.



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This raises the question why Habermas makes such strong claims for the discourse and democracy principles. I mean that in two senses. First, why does he formulate these principles so strongly, so that norms can be substantively justified only if they could command universal assent in discourse? Second, why does he take the discourse and democracy principles, so formulated, to be so central to modern law, given how few legal norms can meet the demanding standard of universal assent? As to the first question, Habermas takes “our” practices of justification to aim at universal assent, at least as a regulative ideal. Possibly this might be so with respect to scientific discourse, although I think there is much room for doubt even there. And those who, like Habermas, are committed to strict universalism in “moral” matters will perhaps be sympathetic to the idea that moral norms must be susceptible of universal assent in an ideal discourse—though, as Habermas notes, the consequence of this position is a dramatic shrinking of the moral domain, with an equally strong trend toward increasing the abstractness of “moral” norms. But with respect to the kind of discourse that is the stuff of democratic lawmaking, the universal assent requirement seems not even to be a regulative ideal. As Habermas notes, legal norms touch on interests that may conflict sharply in modern societies, as well as group identities and forms of life that cannot be unified through law without strenuous dissent.202 The reasons Habermas has given for why universal consensus on substantive lawmaking issues likely cannot be expected suggest that the “democracy principle,” as Habermas has formulated it, is external to lawmaking discourse, not immanent within it. Habermas’s account purports to be a “reconstruction” of modern law and democracy, but conspicuously absent from political and legal discourses in modern societies is the idea that a norm is justified only if all could assent in an ideal discourse. The few instances in which unanimity is required in actual political discourses—such as the requirement of “unanimous consent” to revise and extend lawmakers’ remarks or otherwise to depart from prescribed procedure—are taken to be the subject of bargain and compromise. Such unanimity norms work, to the extent that they do, only because each knows that the other can sanction a refusal to assent by denying similar requests for unanimous consent in the future. Any resulting unanimous agreement is the result not so much of conviction with respect to a normative validity claim as it is recognition that the game is better played by withholding one’s objection. The second question—why does Habermas cling to the idea of universal assent, even as his account of legislative discourse undermines it?—likely

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finds its answer in Habermas’s account of the “system of rights.” The criterion Habermas sets for a reconstruction of law and democracy is that it must account for how the addressees of law are also its authors. The universal assent requirement is a particularly strong way of accounting for identity. If all legal norms could receive universal assent in an ideal discourse, then no one could complain that the legal order is coercive. But Habermas’s own shift to indirect or procedural legitimation, rather than direct or substantive legitimation, suggests that this defense of the “universal assent” requirement is untenable. If laws are presumptively legitimate because of their procedural pedigree, then they may well be substantively coercive—in the sense that at least some members of society would not assent to them in discourse. In shifting to procedural legitimation, Habermas recognized that as to many legislative matters, universal substantive agreement is unavailable. After that shift, the sense in which law’s addressees are also its authors is that they, because of fidelity to recognized procedure, have reason to accept legislative outcomes, even if they cannot endorse them substantively. This sense in which law’s addressees are also its authors doubtless is more modest than Habermas’s original formulation of the discourse and democracy principles seemed to promise. But it is the most that can be sustained, given Habermas’s (wise) concessions to the realities of the legislative process. The addressee/author identity, like the scope of the discourse and democracy principles themselves, has to be reassessed and reformulated to reflect Habermas’s concessions about “ethical” disagreement and the necessity of bargaining and compromise in lawmaking. That identity between addressee and author is not an independent reason for supporting the excessively strong version of the discourse and democracy principles. Universal substantive assent really has no place in Habermas’s theory after the proceduralist turn.203 The contribution of Habermas’s “discourse theory of law and democracy” thus is not the idea of universal discursive assent. Instead, it is Habermas’s recognition that discourse—not “the discourse principle” as originally formulated—is institutionalized in the lawmaking process through legally prescribed procedures. The most novel aspect of Habermas’s account is the connection between deliberation and decision in formal governmental institutions, on one hand, and informal discussion among ordinary citizens, on the other. Popular sovereignty, reinterpreted discourse-theoretically, is consistent with legislative decision making in representative bodies, but subject to an important caveat: If the citizens’ communicative power is to influence lawmaking, legislative bodies must



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remain “porous, sensitive, and receptive to the suggestions, issues and contributions, information and arguments that flow in from a discursively structured public sphere.”204 In part this, too, is a matter of legal regulation. Public spheres must be constitutionally protected.205 Habermas suggests, also, that the procedures for selecting representatives must “provide for the broadest possible spectrum of interpretive perspectives, including the views and voices of marginal groups.”206 With this latter suggestion, Habermas likely implies a criticism of the American system, in which the two-party framework tends to limit the range of represented views. But much of the work in ensuring that citizens’ communicative power influences representative bodies depends on the citizenry itself, not the actions of representatives.207 Whether political public spheres are vibrant or moribund depends in substantial part on the society’s traditions and political culture.208 Habermas’s theory of democracy places great weight on the importance of active political public spheres and on their connection to the network of voluntary associations that Habermas calls “civil society.” Habermas’s account of law and democracy, then, departs from an exclusive focus on state institutions. As Habermas recognizes, however, the claims he makes for the importance of public spheres and civil society need to be substantiated through social theory. That is a central task of Habermas’s “communication theory of society,” which, as I have explained, is the supplement in Habermas’s larger project to the discourse theory proper. Here again, a contrast with Rawls’s political liberalism may be instructive. The purpose for which Habermas develops his elaborate socialtheoretical model of modern complex societies is to determine whether the discourse theory, developed through normative “reconstruction,” actually has a purchase on existing social conditions. The motivation for this exercise thus may at first seem similar to Rawls’s motivation in developing the idea of the “overlapping consensus.” Rawls asks: “How is political liberalism possible?”209 and in particular, how can it provide a stable basis for a just society?210 Habermas asks: How is it “plausible that the reconstructed normative self-understanding of modern legal orders does not hang in mid-air,” but instead “connects with the social reality of highly complex societies”?211 I would not go so far as Habermas’s suggestion that Rawls misses the “institutional dimension” of law.212 But Habermas’s reliance on substantive social theorizing in this second part of his project, as a supplement to and check on the philosophical analysis of the first part, seems to me a great advantage of his theory.

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As a result of his excursion into social and legal theory, Habermas has a richer account of the way that democracy operates—and might operate— than Rawls can provide with his more narrow focus on public reason. Rawls’s requirements of public reason apply only to constitutional essentials and matters of basic justice.213 But, as Rawls acknowledges, much ordinary political discussion in a democratic society—among citizens and among officials—concerns other matters.214 Political Liberalism, however, has comparatively little to say about that kind of discussion. The focus on public reason also leads Rawls to understate the importance of voluntary associations in civil society for the workings of democracy. Such associations, for Rawls, count as part of the background political culture.215 Habermas, too, distinguishes between civil society and the political public sphere, but his more complete account of the link between civil-social associations and the operation of the public sphere emphasizes the former’s role in generating impulses for democratic practice. The idea of democracy, according to Habermas, is that (what Habermas calls) the citizenry’s “communicative power” emerges in the public sphere as a response to impulses from civil society, then flows through what Habermas calls the “sluices of democratic and constitutional procedures situated at the entrance to the parliamentary complex.”216 Civil society, to the extent that it is autonomous from both the state, is a source of “counterknowledge”— counter, that is, to official conceptions in the political system’s formal decision-making institutions.217 Such is Habermas’s account of the ways in which administrative power is bound to communicative power with respect to legislation. This account, based in a discourse-theoretical understanding of separation-of-powers norms, extends also to the other two familiar branches of government. Lawmaking, Habermas has said, may rely on the full range of reasons and discourses—moral, ethical, and pragmatic—in discursively justifying and enacting legal norms. Adjudication, by contrast, is limited on Habermas’s theory to the application of existing norms. Habermas seems to approach adjudication according to a civil-law model. The “cornerstone” of modern law is the statute,218 enacted by representative bodies. Habermas emphasizes the requirement of a “democratic genesis” for statutes more than did the earlier German tradition.219 But still, he sees the statute as “the foundation for individual legal claims”220 taken up in adjudication. Judicial decision, he says, involves “the application of legal statutes to individual cases.”221 The obvious question for American readers is whether this idea of adjudication is a plausible “reconstruction” (in Habermas’s sense) of Ameri-



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can practice. Common-law decision making involves the application of judge-made rules, not just statutes, and further, it involves the justification of new judge-made rules, not just the application of existing rules as pregiven premises. Habermas, oddly, does not systematically discuss the idea of common-law adjudication.222 As we will see, Habermas takes up Dworkin’s “constructive interpretation” approach in his “testing” of the discourse theory of law against legal theory proper. That will allow Habermas to argue that, in interpreting and applying existing law, judges are at the same time developing the law. But that does not adequately address the problem that judge-made rules, even if pregiven from the individual judge’s point of view, do not have the democratic pedigree that Habermas’s theory apparently would require. Habermas’s reconstructive account of the constitutional state focuses on what he calls “normative” and “systematic” arguments why adjudication must be limited to the application of existing legal norms rather than the justification and announcement of new norms.223 In terms of discourse theory, Habermas says, justification and application involve “different logics of argumentation.” To the extent this argument is not simply circular— assuming that adjudication involves only the application of pregiven norms—it is difficult to decipher. Habermas observes that adjudication relies on party presentation, with the judge as “impartial representative of the legal community,” whereas “in discourses of justification there are . . . only participants.”224 That may be so, but its significance is not immediately clear. What Habermas seems to be saying is that adjudication cannot involve the justification of norms because the only participants are the interested parties and the disinterested judge. The justification and enactment of legal norms, Habermas has argued, require the participation of the citizenry through discussion in the public sphere. Adjudication, therefore, lacks the democratic warrant Habermas’s theory would require. For that reason, it cannot involve the genesis of new norms, and it must confine itself to “a discourse of application aimed at decisions consistent over time”225— or, consistent until the appropriate lawmaking power has changed the law. Habermas’s second argument sounds similar themes. The judiciary has the coercive power of the state at its disposal to enforce its judgments. If judges were free to act as lawmakers, then they would be able to wield administrative power without connection to the communicative power of democratic discussion. The separation of lawmaking and law-applying power is a corollary of Habermas’s discourse theory of law and democracy. The conclusion is not novel—a basic argument against judge-made law

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always has been that it is undemocratic. What remains to be seen, though, is whether Habermas’s inflection of this standard point through discourse theory solves the standard difficulties. Is the distinction between justification and application any less manipulable and unsatisfying than the distinction between making and finding the law? Is it an improvement on Dworkin’s attempt to escape this choice with the notion of constructive interpretation? I will take up these issues in Chapter Three, where I consider Habermas’s “testing” of his theory against legal theory proper and also against the theory and practice of constitutional decision making. As should be apparent by now, Habermas intends his discourse theory as a recasting of separation-of-powers notions. One branch of government remains to be discussed—the executive branch, or as Habermas refers to it, “the administration” (Verwaltung). As one would expect, Habermas argues that there must be legal controls over the administration to prevent it from deploying administrative power in a way disconnected from communicative power.226 He mentions the usual such controls—the requirement of statutory authorization, ongoing legislative oversight, and judicial review. The administration may not substitute itself for the lawmaking power.227 That much is obvious. More difficult is Habermas’s distinction between adjudication and administration, both of which seem to involve the application of democratically enacted law. Habermas admits a further difficulty: Given increasing legislative reliance on general clauses and goal-oriented programs, the administration is left “considerable room for discretion.” These recent developments, Habermas suggests, undermine traditional conceptions of administrative tasks as merely the technical implementation of norms established elsewhere.228 Discourse theory, according to Habermas, offers a way to account for the separation of administration from both legislative and judicial decision making. Legislatures have access to the full range of “normative, pragmatic, and empirical reasons, including those constituted through the results of fair compromises,” provided that they access these reasons “within the framework of a democratic procedure designed for the justification of norms.”229 The judiciary engages in discourses of application, in the context of particular cases, and it is bound to apply enacted law. A court is not free to “make whatever use it likes of the reasons packaged in, and linked to, statutes.” Anticipating his discussion of Dworkin, however, Habermas implies that in applying law, courts may engage in constructive interpretation—or, as he later puts it, that they may “justify the individual decision by its coherence with a rationally reconstructed history of existing law.”230 The adminis-



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tration, however, is limited to “pragmatic discourses,” where the normative premises are “pregiven.” It is “not permitted to deal with normative reasons in either a constructive or reconstructive manner,” nor is it free to “follow [its] own interests or premises.” What it is to contribute is “empirically informed, purposive-rational decision making” in pragmatic issues.231 Habermas’s general idea here is to account for the separation of powers not so much in terms of differences among functional tasks, or in terms of a logic of general and specific,232 as in terms of differences in access to reasons and kinds of discourse. From this point of view, the significance of the separation of powers is that it is “a way to secure both the priority of democratic legislation and the recoupling of administrative power with communicative power.”233 This general sketch, developed through Habermas’s “reconstructive” analysis of law and democracy, is of course no substitute for detailed analysis of particular legal and political systems. Presumably Habermas would allow—as he has with respect to earlier work—that its merit depends on whether, in the future, it proves fruitful for more empirically oriented research.234 In fact, the rest of Habermas’s work on law seeks to bring the ideas developed reconstructively into closer contact with ideas generated through different approaches. The “communication theory of society,” which I discuss in Chapter Four, situates the discourse theory’s conclusions in a model of contemporary societies, testing whether those conclusions “connect[] with the social reality of highly complex societies.”235 And before developing that theory of society, Habermas seeks to “test and elaborate the discourse concept of law and democracy” against, first, contemporary discussions in legal theory, and second, contemporary controversies in constitutional law.236

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Discourse Theory and the Theory and Practice of Adjudication With his “testing” of the reconstructively developed discourse theory, Habermas shifts from a “philosophical” standpoint to “the perspective of legal theory proper.” From this latter standpoint, the focus is on adjudication and, in particular, on adjudication as seen from “the judge’s perspective.” Certainly, as Habermas notes, this is the dominant perspective in legal scholarship. According to Habermas, this is not simply a matter of parochialism or traditionalism but a legitimate theoretical decision. His stated reason is as follows: “Because all legal communications refer to actionable claims, court decisions provide the perspective from which the legal system is analyzed.”1 That reason does not sufficiently support a methodological commitment to court-centered legal theory. Habermas’s strategy is particularly strange given his statement, in the same general discussion, that on his approach “political legislation” is “central” and his acknowledgment that one can analyze political legislation from the standpoint of legislators, agencies, citizens, and interest groups.2 Certainly one also could investigate law’s effects (or lack of effects) outside the courtroom, even if one sees law primarily as creating “actionable claims.” But Habermas is correct that if discourse theory is to “prove itself ” as a theory of law, then it must provide an account of adjudication. To be sure, adjudication need not be understood only from “the judge’s perspective.” The perspectives of lawyers, the parties, and jurors are obvious alternatives, or better, supplements. But Habermas is right that one basic question of legal theory concerns how judges do and should decide cases. That



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question is indeed one against which a legal theory must prove itself, even if it is not obviously and necessarily the central question of legal theory.3 Habermas considers, first, the general nature of adjudication, approaching it through a critical reading of familiar perspectives that is informed by his own guiding distinction between facticity and validity. He turns, then, to the special case of constitutional adjudication.

3.1 disc ou r se t h eory a n d dwor k i n’s “c ons t ruc t i v e i n t er pr e t a t ion” In the context of adjudication, the tension between facticity and validity appears as a tension between “certainty” and “legitimacy.” With the “certainty” requirement, Habermas connects not just the general need for adequate and predictable enforcement of legal standards but also the more particular need for consistency in judicial decision making. With “legitimacy,” Habermas associates the need for judicial decisions to be normatively justifiable and thus worthy of respect apart from the presence of sanctions.4 Habermas describes the basic problem of adjudication as follows: “How can the application of a contingently emergent law be carried out with both internal consistency and rational external justification, so as to guarantee simultaneously the certainty of law and its rightness?”5 Two aspects of this formulation deserve comment. First, the word application reflects Habermas’s position, developed in his analysis of the separation of powers, that adjudication is about the application of legal norms, not their creation and justification.6 The words external justification express the same idea. The justification for the norms applied in judicial decisions must come from without—from the reasons “packaged in, and linked to, statutes.”7 Second, the references to “internal consistency” and “emergent law” express the idea that present judicial decisions link to a past and future of legal decision making. The certainty requirement thus mandates consistency with past institutional history and, at the same time, prescribes that present judicial decisions must be points of connection for future judicial decisions. With this idea of the double requirement for judicial decision making as the backdrop, Habermas distinguishes his discourse-theoretical approach from three prominent theories of judicial decision making. As one by now might expect, Habermas maintains that each of these theories fails to reconcile the certainty and legitimacy requirements.

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According to Habermas, legal realism8 revokes the certainty requirement by denying that past decisions are sufficiently determinate to constrain present decision. This denial would, in effect, negate “the very function of law,” which is “to stabilize expectations.” Further, Habermas argues, realism pursues the legitimacy goal only by assimilating judicial decision making to other kinds of political decision. On this view, cases are correctly decided only if the judge wisely uses her discretion to pursue utilitarian or social-welfare goals. In both respects, Habermas thinks, realists skeptically reject the necessary “idealizing suppositions” of participants in the judicial process.9 Legal positivists, Habermas thinks, commit a symmetrical error. According to Habermas, positivists see law as a closed system of norms, with legitimation coming only through fidelity to legally prescribed procedures. The basic norm—whether Hart’s “rule of recognition” or Kelsen’s Grundnorm—bears the weight of legitimation but “without itself being capable of rational justification.” Instead, “as part of a historical form of life, it must be factually accepted as settled custom.” The emphasis on identifying unambiguously what is or is not law, and the concern with “pedigree” rather than rational justification, promotes the certainty guarantee at the expense of the legitimacy or “rightness” guarantee. Positivism’s treatment of “hard cases,” Habermas argues, reflects this “priority of legal certainty.” In such cases, Habermas maintains with Hart in mind, positivists claim that law has run out and commit the decision to judicial discretion. Here the “rightness” standard is extrinsic to law.10 “Legal hermeneutics” fares somewhat better in Habermas’s assessment. The insight here is that a “case” is defined by the relevant norm, whose relevance criteria select some aspects of the factual situation and exclude others. The decision reached by applying the rule counts as a further development of the rule. A decision’s legitimacy derives from the ethical tradition that shapes both the judge’s “preunderstanding” of the case and the interpretive maxims that aid in application. But this connection of legitimacy to a particular tradition is insufficient in a pluralistic society, Habermas argues.11 The encounters Habermas stages with these three theories of law do not amount to much of a “test” for discourse theory. All three sketches are too brief to develop the theory in question, and the account of “realist” thinkers—attributing to them “a flat revocation of any guarantees of legal certainty”—is particularly crude.12 The characterization of positivism as pursuing the “priority of certainty” through judicial discretion, also, is



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problematic. Further, each of the three general approaches has considerable internal diversity, with many variants and subvariants. Habermas would have done better either to encounter the three theories in a less cartoonish version or to omit the discussion entirely.13 The purpose of his encounter, however, probably is not so much a “testing” of his own theory as a setup for a theory he will consider at some length: the theory of adjudication Ronald Dworkin developed in work up to and including Law’s Empire. The connections between Dworkin’s account of adjudication and Habermas’s ideas are easy to see. Both focus on the decision of legal rather than factual issues, and both assume the “internal” perspective of the judge.14 Both see judicial decision making as bound by the certainty and legitimacy guarantees.15 Both emphasize the requirement of principled judicial decision. Habermas, in fact, could make more of the connection between his own approach and Dworkin’s theory of “constructive interpretation.” The linkage is easiest to see if we consider first the “chain novel” device that Dworkin uses to illustrate judicial decision making. A new chapter for a chain novel, Dworkin observes, must “fit” the prior chapters that other authors have crafted.16 Further, among the possible ways of continuing the story that survive some threshold test of “fit,” the author must consider which “makes the work in progress best, all things considered.” Dworkin, of course, notes that the two “dimensions” of interpretation—“fit” and “justification,” he called them in his 1986 work, Law’s Empire17—are not entirely separable. Questions of fit are relevant also in the second dimension of interpretation, both in the chain novel example and in the practice of judicial decision making that the example illustrates.18 Put in terms of judicial decision making, the “fit” requirement means that a present decision must sufficiently cohere with relevant past decisions. Habermas, perhaps oddly, describes this only as a matter of justification, maintaining that Dworkin would “justify the individual decision by its coherence with a rationally reconstructed history of existing law.”19 Perhaps he is trying to say only that, on Dworkin’s theory, the degree of fit is relevant to the matter of justification. In any event, the requirement of coherence with past decisions is part of what Habermas means by adjudication’s “certainty” requirement.20 Dworkin’s second dimension of interpretation, referring to the decision’s justifiability, corresponds to Habermas’s “legitimacy” or “rightness” requirement. Put in terms of Habermas’s overarching distinction between facticity and validity: Dworkin’s “fit” requirement treats past decisions as authoritative (“facticity”), but, at the

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same time, he sees the present decision’s justifiability (“validity”) as not entirely reducible to its degree of fit. Neither the interpretive dimensions of fit and justification, nor the guarantees of certainty and legitimacy, collapse into one another. Habermas is more critical, however, of Dworkin’s decision to elaborate “constructive interpretation” through the device of Hercules, the idealized judge with “superhuman intellectual power and patience” whose cogitations and decisions we witness throughout the second half of Law’s Empire. Habermas asks the obvious questions. Does Dworkin’s reliance on an idealized judicial figure indicate that the interpretive tasks he sets for ordinary judges are excessively demanding? If no judge, by definition, can equal Hercules’ capacities, then can the theory Dworkin is defending serve as even a regulative ideal?21 Habermas approaches these issues by way of Dworkin’s reception in critical legal studies. Accordingly—and because of his own views about the central issues in adjudication—Habermas takes the basic problem to be one of indeterminacy. What reason, he asks, do we have for thinking that Dworkin-style judging would not simply substitute the political prejudices of flesh-and-blood judges, and unacknowledged influences in the judicial system’s environment, for determination by law?22 And if the law is “shot through with contradictory principles and policies,” then could Dworkin’s judge possibly complete the “rational reconstruction” that his interpretive method requires?23 To some extent, Habermas defends Dworkin against these charges. He notes Dworkin’s own reply, to the effect that the objections confuse rules with principles.24 Rules, understood as concrete norms that apply directly to particular fact-situations, cannot conflict without either invalidating one of the rules or requiring an exception. Principles, by contrast, may “compete” within a coherent normative theory without the competition being a theory-defeating “contradiction.”25 This reply is correct as far as it goes, Habermas thinks, but it can be deepened by considering Habermas’s own distinction, borrowed from Klaus Günther, between discourses of justification and discourses of application. “[A]ll norms” except for the most rulelike rules, Habermas claims, “are inherently indeterminate” in their application.26 This is because most norms do not specify, in detail and in advance, the factual situations to which they do and do not apply. And so in many cases, more than one norm may be potentially applicable. A discourse of application, according to Günther and Habermas, is required to determine which valid norm is “appropriately” applied in the particu-



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lar context, after consideration of all potentially applicable norms and all relevant facts and circumstances.27 But because the relevance of facts and circumstances depends on which norm one is considering, discourses of application require one to work back and forth between the norm and its situation of application. This uncertainty of application, however, does not affect the norms’ validity.28 And so the “indeterminacy” objection Habermas attributes to critical legal studies confuses justification with application, not just principles with rules.29 In this analysis Habermas follows closely Günther’s account of the logic of application discourses.30 As Habermas acknowledges, however, this reply to the indeterminacy objection does not sufficiently address the requirement of legal certainty. He makes this acknowledgment in the context of evaluating Dworkin’s theory,31 but it applies equally to his own. As Robert Alexy has argued, the standard of “appropriateness” in discourses of application, together with the subsidiary requirement of a “complete description of the situation,” is empty.32 It does not assist the judge either in selecting a governing norm or in applying the norm to the factual situations that the norm illuminates.33 It simply tells the judge to decide the case correctly. “Appropriateness” is a term of praise rather than a criterion or instruction that can guide decision making and promote certainty of outcome. Habermas’s responses to this problem are surprising. He suggests, first, that “legal certainty” is “itself a principle that must be weighed against other principles in the case at hand.”34 This response seems, first, to misstate the logical status Habermas has given to “certainty.” It is not a “principle,” in the sense of a general norm that, in particular cases, helps specify the justification for decision. Instead, it is one of two basic functional requirements that a legal system as a whole must satisfy: The course of decision must be sufficiently certain (that is, predictable in view of past institutional history, with adequate enforcement), and decisions must be sufficiently justified to count as correct. Doubtless the point Habermas is trying to make is that these two requirements, which he has identified as in tension,35 may be traded off against each other. What he suggests is a reinterpretation of the certainty requirement that trims back its demands to a more manageable level. Again, his recourse is to procedure. Instead of focusing on the certainty of outcome, Habermas says, we should focus on the certainty of procedures. Sound procedures, he contends: guarante[e] the certainty of law at a different level. Procedural rights guarantee each legal person the claim to a fair procedure that in turn guarantees not certainty of outcome but a discursive clarification of the pertinent facts and legal

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This reinterpretation and relocation, however, responds to neither of the reasons that motivated Habermas to postulate “certainty” as a requirement for adjudication. The “very function of law,” he said, was to “stabilize expectations.”37 That function requires predictability of outcome, not just predictability that litigation procedures will be fair. Nor does the fairness of procedures by itself guarantee continuity in a legal system’s institutional history. While good procedures may help produce more consistent outcomes, the more salient factor seems to be the character of legal norms applied in a particular system. As we have known at least since legal process theory: “Rules,” which specify their applicability and application relatively precisely, are generally more certain in their outcome than open-ended “standards” or “principles.” It may be, as Habermas suggests in the final chapter of Between Facts and Norms, that contemporary conditions make classical ideas of legal certainty unrealizable.38 But then why does Habermas not make that clear at the outset of his discussion of adjudication? Why is certainty (of outcome) a basic function of law, and why is realism faulted for “revoking” the (classical) guarantee of legal certainty? Habermas’s further response to the “indeterminacy of application” problem is no more satisfying. Apparently following Klaus Günther’s lead, he suggests that legal “paradigms” can operate to limit the indeterminacy of adjudication.39 What Habermas means by this term is not at first clear. His most common usage of this term—beginning with the opening of his first chapter on adjudication and continuing throughout Between Facts and Norms—presents “paradigms” as highly abstract interpretations of a legal system as a whole. Borrowing from systems theory, he describes a legal paradigm as “something like the implicit social theory of the legal system, and hence the image this system forms of its social environment.”40 Understood in this way, Habermas claims, “the legal paradigm determines how basic rights and constitutional principles are to be understood and how they can be realized in the context of contemporary society.”41 Habermas usually identifies these paradigms in a trio of competing conceptions— with his own conception drawing from but superseding the other two. In order of historical occurrence, these are the “liberal” (or “bourgeois formal-law”) paradigm, the “social-welfare” (or “welfarist” paradigm), and his own “proceduralist” paradigm.42



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If Habermas has these paradigms in mind, then he has no solution to the problem of indeterminacy in application. They are far too abstract to provide guidance in concrete cases.43 Further, as Habermas acknowledges, these paradigms presently compete with one another, and so even if any one of them provided clear guidance in a particular question, the question of paradigm selection would remain.44 Habermas’s usual trio of paradigms, then, are more indeterminate in application than the legal norms they purportedly clarify. As Habermas acknowledges in another context, the complexity of judicial decision making may be reduced with less abstract “paradigms.” In discussing Cass Sunstein’s proposed seven “canons” for interpreting regulatory statutes, Habermas first remarks that the proposal is an “exemplary contribution to the paradigm discussion,” largely because the canons cohere with the discourse theory’s “radical-democratic meaning of the system of rights.”45 But while Habermas agrees that “background norms” are necessary for judicial interpretation (at least in cases of ambiguity), and while he approves of Sunstein’s proposal on the merits, he draws back from endorsing fully this kind of solution to the problem of indeterminacy. These canons at least verge on “a politically inspired ‘creation of law,’ ” and in that respect they offend the requirement that judicial activity be limited to discourses of application, not justification.46 Further, canons of construction, and interpretive norms more generally, tend to be the property of legal experts, and so they may become ideological and resistant to change.47 Habermas should add that typically they are contested, both in the abstract and in their application to particular cases. Because they are contested, professionalized rules, Habermas could add further, interpretive canons may not materially assist in producing legal certainty: They do not guarantee substantive consistency with past cases, nor do they provide much guidance for law-conforming primary conduct.48 Ultimately, Habermas addresses the indeterminacy problem through a “theory of legal discourse” that, as one by now would expect, gives pride of place to procedure. He begins this theory by renewing his objections to Dworkin’s “Hercules” device. The theory is “monological,” Habermas observes (following Frank Michelman), meaning that Hercules develops his interpretations not in discourse with others—whether attorneys in the case, his fellow judges, or both—but through his own solitary cognitive efforts. Monological is a term of opprobrium in a discourse theory that relies on “dialogue” (or discursive engagement) in the search for “appropriate” applications of legal norms. And so rather than “anchor the ideal demands

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on legal theory in . . . the ideal personality of a judge who is distinguished by her virtue and her privileged access to the truth,” Habermas suggests, better to have recourse to “the political ideal of an ‘open society of interpreters of the constitution.’ ” 49 This move, however, has little to do with promoting legal certainty or reducing indeterminacy in the law’s application. If the law, as applied, were what an “open society of interpreters” decided after some discursive procedure, then the distinction between adjudication and legislation in fact would be leveled out. Habermas will put the idea of the “open society” to other uses—and I will come back to them—but his invocation of that idea in addressing the indeterminacy problem is unhelpful.50 Besides, what Habermas addresses under the heading of “legal procedures” involves, for the most part, something other than democratic influence on legal outcomes. His aim is to show how legal procedures, especially litigation procedures, incorporate—more or less—the discourse principle. The “more or less” qualification is important. As with legislative procedures, judicial procedures impose time and relevance constraints. Pretrial procedures, and rulings during trial, limit the issues that may be raised and the time that may be devoted to them. The parties, Habermas acknowledges, pursue interests strategically—that is, their contribution to courtroom discourse is not disinterested pursuit of the right answer but advocacy. The burden of proof asymmetrically distributes discursive roles. Habermas sees the role of the judge as compensation for these divergences from the discourse model. “The legal discourse of the court,” Habermas writes, “is played out in a procedural-legal vacuum, so that reaching a judgment is left up to the judge’s professional ability.” In the German system, Habermas points out, the judge is required to set out the reasons for decision. In Anglo-American trials, however, jury decisions may be simply answers as to ultimate issues, with no explanation and no real checks to see whether the conclusions are discursively warranted. And as to factual matters, as Habermas notes, appellate review is sharply limited.51 The same is true of most ordinary trial rulings on (for example) the admission of evidence. Moreover, voting procedures in multimember decision-making bodies, whether judge or jury, may further deviate from the discourse model. This is less true in jury cases, perhaps, to the extent that the law requires unanimity or at least a strong supermajority. In cases with multimember judicial panels, however, a simple majority will suffice. As with rules establishing legislative majority rule, “consensus” among de-



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cision makers is a less stringent requirement than Habermas’s statement of the discourse principle first would suggest. To this list of limits that legal procedure imposes on the discourse principle, one should consider also the overwhelming percentage of cases that are settled or (in criminal cases) plea-bargained. In such cases, we see bargaining rather than something that meets the general requirements of discourse. True, as I mentioned above, Habermas’s account of the constitutional state’s principles leaves room for bargaining and compromise. But it requires that the conditions of bargaining be fair, with power more or less symmetrically distributed. Do the conditions of legal bargaining meet this requirement? Certainly there is an imbalance of power in most criminal cases between prosecution and defense, and the same is true in many civil cases. The requirement of appointed counsel in criminal cases is partial compensation for the imbalance of power, but, given the realities of at least many American systems of criminal justice, doubtless it is not full compensation. One accomplishment of legal procedure is, as Habermas claims, the structuring of a space in which arguments can be exchanged and relevant information brought forward. The requirement of judicial impartiality, and such requirements as there may be for reasoned explanation of judgments, compensate in part for divergences from the discourse principle’s usual requirements. But the differences between actual judicial procedures and the idealized requirements of discourse are as important as the similarities. Here, as with similar restrictions on discourse in legislative matters, Habermas sensibly realizes that the discourse principle, taken fullstrength, would be unworkable. The question remains, however, whether a discourse theory can make those concessions without systematically revising the original statement of the discourse principle. Habermas sees his recourse to procedure as a reformulation of Dworkin’s theory of judicial interpretation. Rather than place “idealizing demands” on the judge, with the rhetorical device of Hercules as superhuman intellect, Habermas locates those demands in “the necessary pragmatic presuppositions of legal discourse.”52 But just as Dworkin concedes that ordinary judges do not match but can only emulate Hercules, so the procedures actually applied in adjudication can only partially realize the demands of the full-strength discourse principle. There is a further difference. More is not always better when it comes to realization of the discourse principle. Adjudicative procedures ­necessarily,

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and wisely, stop far short of fully institutionalizing ideal discourse requirements. Competing with the demands of the discourse principle (“validity” or “legitimacy”) are the pragmatic requirements of decision making (“facticity”). Habermas is right that these are in tension. But these pragmatic requirements are not just a moment of “facticity” that limits the discourse principle. They are conditions without which no attempt to institutionalize discourse even could be made. One further aspect of Habermas’s general theory of adjudication remains to be discussed: the status of common-law decision making. A significant part of Dworkin’s account of “constructive interpretation” in Law’s Empire is devoted to common-law adjudication,53 and Habermas takes Dworkin’s idea of constructive interpretation as inspiration. But throughout the course of Between Facts and Norms, Habermas rarely mentions the topic of common-law decision and never considers it systematically.54 One reason, likely, is Habermas’s greater familiarity with the civillaw tradition. Still, Habermas has had significant contact with American legal scholars over the years, and his account of constitutional adjudication refers frequently to American constitutional practice and theory. Further, the common-law tradition is hardly unknown to German sociology of law. Max Weber discussed it,55 and Niklas Luhmann, Habermas’s longtime theoretical rival, begins his autopoietic study of law by noting that he learned much from considering common-law systems.56 Habermas’s account of law in fact invites consideration of commonlaw adjudication. As noted in Chapter Two, the core principle of Habermas’s theory of the constitutional state is that administrative power must be bound to the communicative power that originates in discussion among the citizenry and “circulates” through legislative bodies. Habermas recognizes that courts wield administrative power.57 In cases of statutory or constitutional interpretation—Habermas’s paradigm cases of judicial interpretation—the connection to the citizenry’s communicative activity and its legislative product is apparent. Not so, however, in the case of common-law decision making, where law is made by judges (though subject to legislative correction). While some state-court judges in the United States are elected (federal judges are not), the process by which they reach decisions and make new law does not feature significant popular participation. In highly visible cases, interested groups may be allowed to file friend-of-the-court or amicus curiae briefs, but adjudication typically depends exclusively or almost exclusively on presentation by the litigating parties. Their interests may not be widely shared, and certainly they are



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shaped by the case’s litigation posture. Adjudication does not offer opportunities for public input and participation that are remotely comparable to legislative hearings, town-hall meetings, petition drives, and the like. The administrative power that issues from lawmaking common-law court decisions, then, has at best an uncertain relationship to the communicative power of the citizenry. The problem of squaring common-law adjudication with democratic theory is of course not unique to Habermas. But some of the usual escapes available to other thinkers are not open to Habermas. It is not enough, on his principles, to argue that the people and the legislature tacitly have approved common-law decision making, retaining and occasionally exercising the power to override such judicial decisions. Further, even if a jurisdiction had a statute that generally bestowed this power on courts, the delegation of lawmaking power to courts still would be problematic for Habermas. Despite Habermas’s references to an “open society” of interpreters, and despite his statements that a critical public needs to develop to evaluate court decisions,58 the fact remains that common-law courts have few if any of the procedures that ensure public participation in legislative decision making. It does not seem to me enough, in other words, for the people and their legislative representatives to tolerate common-law decision making, or even to authorize it once and for all. Habermas’s theory of lawmaking requires popular participation in the genesis of law, not just tacit authorization or after-the-fact criticism.59 Nor can Habermas escape the problem by noting that, in each case, judges do not make law afresh but only apply and develop the work of their judicial predecessors. The first difficulty with this reply is that, as I argue in the following pages, in discussing Habermas’s theory of constitutional adjudication, the distinction between justification and application is elusive. Moreover, if we were to acknowledge that common-law courts engage in justification discourses as well as application discourses, or that application discourses may include some elements of norm justification, the problem remains that judicial proceedings don’t offer the kind of opportunities for public participation available in the legislative process. Further, if we were to try to argue that common-law courts only apply precedents reached by their judicial predecessors, the problem is that at an earlier point in this chain of common-law decisions, courts have engaged in lawmaking. And here, too, the problem is that the citizenry’s communicative power has (and has had) little if anything to do with that

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lawmaking. The “web”60 of law that common-law courts make and apply is relatively unconnected to citizens’ communicative power. Victor Peterson tries to defend Habermas by noting that his theory of separation-of-powers norms is based on a distinction among kinds of discourse and that it rejects the “classical” sharp separations among lawmaking, law-applying, and law-implementing operations of government.61 Habermas, at the end of his separation-of-powers discussion, certainly does criticize the classical “liberal” conception: The classical scheme for separate branches of government becomes less tenable the more laws lose the form of conditional programs [akin to “rules,” as opposed to “standards”] and assume instead the shape of goal-oriented programs. As a rule, these “materialized” laws, too, appear as general norms formulated without proper nouns and directed to an indeterminate number of addressees. However, they contain general clauses and vague statutory language, or set concrete policies (analogous to special legislation) that leave the administration considerable room for discretion.62

Habermas sees these developments in both the United States and Germany and in “comparable countries” as well. They require, he maintains, “new structures” if the legitimacy of administrative action is to be maintained, such as “corresponding forms of participation or . . . quasi-judicial and parliamentary procedures, procedures for compromise formation, and the like.”63 The implications of these developments directly concern the executive rather than the judiciary. But in the final chapter of Between Facts and Norms, Habermas argues that in contemporary societies even the discourse-theoretical understanding of separated powers must be relativized. This relativization affects the judiciary as well as the executive: To the extent that legal programs are in need of further specification by the courts—because decisions in the gray area between legislation and adjudication tend to devolve on the judiciary, all provisos notwithstanding—juristic discourses of application must be visibly supplemented by elements taken from discourses of justification.64

And here Habermas recognizes the need for new forms of legitimation: Naturally these elements of a quasi-legislative opinion- and will-formation require another kind of legitimation than does adjudication proper. The additional burden of legitimation could be partly satisfied by additional obligations for courts to justify opinions before an enlarged critical forum specific to the judiciary. This requires the institutionalization of a legal public sphere that goes beyond the existing culture of experts and is sufficiently sensitive to make important court decisions the focus of public controversy.65



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This development would seem democratically desirable for instances in which courts must, with some sort of necessity, take on new lawmaking or quasi-lawmaking functions. But does the whole system of common-law adjudication fit this description? Would it not be possible for norms presently developed by common-law courts instead to be the subject of legislation rather than judicial lawmaking? Habermas is not in these passages arguing that the common-law system of adjudication, as practiced in, for example, the United States, fits the model of separated powers he has defended. Nor could he, it would seem, if there is indeed a democratically preferable alternative.66 One option for Habermas might be to argue, straightforwardly, that common-law decision making is simply illegitimate. Courts inevitably fill gaps, clarify ambiguity, and correct vaguenesses in statutes and constitutions, the argument might go, but they may not take the lead in creating legal norms. This would be a straightforward application of Habermas’s distinction between justification and application, together with his separation-of-powers contention that the courts may do only the latter and not the former. The problem, however, is that Habermas is purporting to “reconstruct” the “normative self-understanding” of modern legal orders. Some of those legal orders take common-law decision making to be basic. Treating this as a “mistake”—an option in Dworkin’s theory of constructive interpretation on which Habermas remarks67—might seem impermissible for a reconstructive rather than purely normative theory. Is the practice of common-law decision making simply too basic to Anglo-American jurisprudence for Habermas to treat it as needlessly undemocratic and thus a misapplication of the constitutional state’s recognized principles?68 Or could he occupy something of a middle ground—recognizing its entrenchment yet still criticizing it as a deviation from democratic principles? Common-law adjudication, in short, is a topic Habermas needs to address more directly. It seems inconsistent with his theory of adjudication and the idea of democratic power, yet difficult simply to dismiss within a reconstructive theory.

3.2 c ons t i t u t ion a l a dj u dic a t ion Habermas’s theory of constitutional adjudication rests heavily on the distinction between discourses of justification and discourses of application.

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The critical side of his account is directed toward the “value jurisprudence” he discerns in German constitutional practice and the paternalism he sees in some constitutional theories (especially those of the “civic republican” variety). The positive side of his discussion is to develop a “proceduralist” account of constitutional courts’ legitimate role, which he develops through his critique of “liberal” and “republican” models.

3.2.1 Value Jurisprudence in Constitutional Practice Habermas makes clear that the separation of powers does not, in his view, necessarily preclude constitutional review of legislation or settling of intragovernmental disputes.69 Nor, he says, does he take the “liberal” model of constitutional-court adjudication to be incontestably binding— where by “the liberal model” he means the idea that the only enforceable individual constitutional rights are “negative” rights against the state.70 This latter position follows from Habermas’s account of the “system of rights.” He introduces his five categories of basic rights prior to considering the principles of the constitutional state, taking these categories to be necessary conditions for any legal community’s attempt to constitute itself through legitimate law. Nothing in Habermas’s formulation implies that his categories of basic rights, when “saturated” and enacted as binding legal norms, apply only as against the state. The fourth and fifth categories, particularly—involving rights to participation in democratic lawmaking and (relatively justified) rights to “social and ecological” security—clearly envision “positive” rights. Further, the abstractness with which Habermas specifies his categories of basic rights means, as he says, that there are many different ways in which they might legitimately be implemented. The “liberal” model of the constitution is one possibility, but it is not uniquely legitimate.71 Habermas argues, further, that the social conditions that made the liberal model attractive have eroded. The assumptions about “economic society” that underlie the liberal model, Habermas states, “no longer hold for developed, postindustrial societies in the West.” The first category of rights—taking, from Kant, the idea that law must ensure “the compatibility of each one’s liberty with an equal liberty for all”—shrinks in the liberal model to a picture of negative rights against the state. And so, “measured against Kant’s principle of law, it is only the shift to the social-welfare paradigm that again brings out the objective legal contents of individual liberties that have always already been implicit in the system of rights.”72



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The question, though, is how a constitutional court can legitimately enforce the system of rights—or, more properly put, enforce the version of that system that has been implemented through positive law. We know, from Habermas’s conception of the separation of powers, that the court must apply constitutional provisions rather than create law. Habermas argues, however, that the German constitutional court has tended toward the latter and thereby has overstepped its legitimate authority. The catchphrase Habermas uses to designate the problem is “value jurisprudence.” By that term (which he borrows from critics of the German constitutional court),73 Habermas means the idea that the constitution is “not so much . . . a system of rules structured by principles, but . . . a ‘concrete order of values.’ ” On this view, principles express values, and where principles compete, the problem of application should be resolved by weighing and balancing the underlying values. This is a “conceptual” error, according to Habermas. He catalogues various differences between values and principles. Values are “teleological,” reflect “intersubjectively shared preferences,” and are only “relatively binding,” while principles are “deontological” and “absolutely binding.” Values “recommend,” while principles “command.” These conceptual differences notwithstanding, Habermas has to tread lightly here. He has, after all, allowed that through pragmatic and ethical-political discourses, values and preferences legitimately may be incorporated into legislation. So too might they be incorporated into constitutional provisions. Still, according to Habermas, “No doubt values or teleological contents also find their way into law, but law defined through a system of rights domesticates, as it were, the policy goals and value orientations of the legislator through the strict priority of normative points of view.”74 One basis for Habermas’s critique is thus a fundamental distinction between justification and application discourses. But the distinction between justification and application is less sharp and more malleable than he allows. This problem is particularly difficult with respect to the most general constitutional norms, such as “due process” or “equal protection,” and particularly difficult also in cases of first impression. Suppose, for example, that a court is deciding, as a matter of first impression, whether due process requires a government agency to grant a hearing before issuing a particular kind of adverse decision. Certainly one can say that the court must apply the due process clause rather than simply weigh and balance values or interests or equities. But in this case, it is unclear what it means to “apply the law.” One way to accomplish this task—and a standard way

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for the U.S. Supreme Court—is for the court to fashion a subordinate rule or standard that not only will decide the present case but will govern a relevant category of cases in the future. The court will need to provide justifications for its choice of an auxiliary rule or standard. Its justification will be convincing as legal argument only if it marshals evidence of text, history, structure, or purpose that demonstrably connects to the more general norm or principle the court is interpreting. A good example of this interplay between application and justification is the Court’s decision in Kyllo v. United States.75 The question in that case was whether warrantless use of a “thermal-imaging device” to detect unusual heat patterns emanating from a residence—probative of the resident’s use of high-intensity lamps to cultivate marijuana—violated the Fourth Amendment. In an opinion written by Justice Scalia,76 the Court began its analysis by quoting the relevant portion of the Fourth Amendment’s text: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” By itself, of course, the language does not obviously require a decision either way. The Court proceeded to justify its decision—that the police activity was unconstitutional—by relying on subordinate or auxiliary rules that are not stated explicitly in the constitutional text. The first, found in the Court’s prior cases, was that “with few exceptions,” a “warrantless search of a home” is unreasonable and hence unconstitutional. The Court explained that prior decisions had treated privacy interests in the home as “ ‘at the very core’ of the Fourth Amendment.”77 That left open, however, the question whether what had occurred in this case was a “search” or, instead, simply observation constitutionally indistinguishable from the instances of warrantless visual surveillance that had been permitted in prior cases. The Court’s analysis considers four possible auxiliary rules, none explicit in constitutional text, that might determine whether a search had occurred. The first—common-law trespass doctrine—had been used “well into the 20th century,” the Court noted, but recent cases had “decoupled” the Fourth Amendment meaning of “search” from traditional “trespass” notions. A second was the government’s proposed rule, endorsed by the Kyllo dissenters, that the distinction should be between observations (whether technologically aided or not) of a building’s exterior surface, on one hand, and “through-the-wall surveillance” on the other. The Court rejected this proposed rule as inconsistent with prior cases and as “leav[ing] the homeowner at the mercy of advancing technology.” A third possible auxiliary rule, also rejected by the Court,



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would have distinguished between observation of “intimate details” or “private activities in private areas,” on one hand, and the observation of (for example) heat emissions as measured on the building’s surface. The Court explained: “In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.”78 Noting the significance that prior cases had given actual “physical ‘intrusion into a constitutionally protected area,’ ” the Court selected a fourth possible auxiliary rule to define whether a “search” has occurred: “Where, as here, the Government uses a device that is not in general public use, to explore details of a home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” The Court relied not just on the idea that the Fourth Amendment gives special “sanctity” to the home, and to “details” therein, but on two further considerations. The first was the idea that the Fourth Amendment must be understood to “assure[] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” While the Court noted cases that had applied this “criterion,” it seems to come also from a more general interpretive principle. One version of such a principle might be the following: The purpose of protecting liberties with a written constitution is to ensure that those liberties, as understood at the time the Constitution was adopted, are not eroded.79 The Court’s second consideration in selecting its “criterion” was the need to provide advance guidance to law enforcement officials as to which techniques are permitted and which are forbidden (at least without a warrant).80 Kyllo, in other words, illustrates how applying a constitutional standard such as the Fourth Amendment may require constructing and justifying a new rule or standard that not only decides the present case but will govern future cases as well. Important for present purposes is that the rule constructed, justified, and adopted in Kyllo did not previously have the status of an authoritative norm of any kind. For that reason, the process of generating and adopting that rule seems hard to describe simply as an “application discourse” in which we choose among conflicting norms that we presuppose as valid (and hence have no need to justify). As Christopher Zurn has argued, “Justification discourses . . . inevitably refer to application discourses,” and “Application discourses . . . inevitably refer back to justification discourses.” This “general reflexive reciprocity between justification and application will result in the inevitable transmutation of constitutional protection into constitutional elaboration.”81

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My point is not that decisions like Kyllo involve “discourses of justification” rather than “discourses of application.” The point, instead, is that in the application of abstract principles or other general norms, the functions of justification and application, as Habermas (following Klaus Günther) has described them, are not entirely distinguishable. One result of the decision is a singular judgment that affects the parties to the case.82 In this respect, the Court is engaged in the application of a relatively abstract and authoritative norm. But the other result of the case is the generation of a new and more specific rule that will govern future cases as well. In this respect, justification is required. As Robert Alexy points out, we can distinguish between the functions of justification and application without positing two different kinds of discourse: For discourses of application the question what is the correct solution in a certain situation is constitutive, for discourses of justification, the question which universal norm is right. But from the fact that those two questions have to be distinguished it does not follow that there exist two essentially different kinds of discourse.83

Even if one agrees with Habermas and Günther and distinguishes between two kinds of discourse, both kinds seem present in ordinary constitutional-law decisions like Kyllo. Habermas seems to recognize, at least in one passage of Between Facts and Norms, that the distinction between justification and application discourses, with the judiciary limited to the latter, may not be so simple to maintain. Writing in terms not limited to constitutional adjudication, Habermas acknowledges: To the extent that legal programs are in need of further specification by the courts—because decisions in the gray area between legislation and adjudication tend to devolve on the judiciary, all provisos notwithstanding—juristic discourses of application must be visibly supplemented by elements taken from discourses of justification.84

This point, however, seems to be more generally significant than Habermas usually allows. On this one point (though not more generally in matters of constitutional theory), Habermas might have followed Dworkin, from whom he borrows the idea of “constructive interpretation.”85 “Law as integrity,” Dworkin writes, “rejects as unhelpful the ancient question whether judges find or invent law; we understand legal reasoning, it suggests, only by seeing the sense in which they do both and neither.”86 The



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same may be said of the closely parallel distinction between applying and justifying legal norms.87 To be sure, Habermas is right that—as he praises Dworkin for recognizing—courts are not in the same position as legislatures.88 This of course is the real purpose in “binding” courts, constitutional or otherwise, “to existing law”89 and confining them to “discourses of application.” Habermas’s main argument is that legal principles may not be treated as if they were mere values and straightforwardly balanced—as if the court were a legislative body resolving conflicts among the various values and preferences in a pluralistic society. This distinction between values and principles is the other basis, besides the justification/application distinction, for Habermas’s critique of the German constitutional court. One way to understand what Habermas is criticizing is through the work of Robert Alexy. In A Theory of Constitutional Rights (2002) (originally published in 1986), Alexy undertakes a “rehabilitation of the muchdespised theory of values” announced in the German court’s Lüth decision of 195890—the theory to which Habermas objects. The core of Alexy’s rehabilitation is a theory of principles. Alexy sees the distinction between rule and principle as “the basis for a theory of constitutional justification.” Rules are “always either fulfilled or not,” and their conflict is “played out at the level of validity.” By that Alexy means that, if rules conflict, then either one must be invalidated or one must be amended (perhaps with an exception clause). Principles, by contrast, are “optimization requirements”; that is, they “require that something be realized to the greatest extent possible given the legal and factual possibilities.” 91 Their conflict is not one of validity but of “weight.” 92 The metaphor Alexy uses for how one resolves a conflict between or among principles is “balancing.” 93 Alexy refers sometimes to balancing interests and sometimes to balancing the principles themselves. His more formal statements refer to establishing a “relation of precedence” among the reasons that the principles represent.94 The German constitutional court, by contrast, has spoken of weighing values. This last idiom, as mentioned, is what provokes Habermas’s criticism. But Alexy sees the Lüth court’s statement about the Basic Law as an “objective order of values,” centered on human dignity,95 as capable of translation into the language of principles. The court itself has referred alternatively to “the principles . . . that are expressed by the constitutional rights.” 96 The move from values to principles is possible, according to Alexy, because

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the two “have basically the same conceptual structure,” 97 as each refers to “gradated satisfaction.” 98 Yet—and here Alexy’s analysis coincides with Habermas’s—they occupy different “fields.” 99 As optimization requirements, principles “belong to the deontological realm.”100 Values, by contrast, concern “the Good” and thus “are located on the axiological plane.”101 Still, Alexy notes, neither the possibility of translating value-talk into principle-talk nor the deontological/axiological distinction provides an easy escape from objections to the German court’s value jurisprudence. “Objections raised to a theory of constitutional rights as values apply equally to a theory of constitutional rights as principles.”102 And so those objections must be answered. The objection that most concerns Alexy is that balancing defies “rational control,” leading to “judicial subjectivism and decisionism.” His answer is that he presents a “justification model.” Balancing, he has said, produces a conditional relation of precedence among reasons—“conditional,” that is, with respect to the relevant circumstances of the case. To justify this relation of precedence, he says, “one can use all the arguments available in constitutional argumentation generally.”103 Balancing, then, is no more or less “subjective” or “decisionist” than legal reasoning more generally. And balancing, according to Alexy, is inescapable in a system of constitutional rights that includes principles. That is because no principle, he argues, can be absolute. For this proposition Alexy offers a “proof.” Suppose, he says, that a principle is absolute. Then it must protect either a collective interest or an individual right. But if an absolute principle were to protect a collective interest, then there would be no individual rights “for as far as the absolute principle reaches.” The absoluteness of the principle, then, would be inconsistent with the idea of individual rights. On the other hand, if the absolute principle were to protect an individual right, then all conflicting similar rights would have to “give way, which is inconsistent” (inconsistent because similar rights would be treated differently). Alexy’s conclusion: “Absolute principles are either incompatible with constitutional rights or can only apply where the rights they create benefit just one person.”104 The argument is unconvincing to the extent that one individual constitutional right might be thought to be incommensurable with and superior to all others—and also one whose particular instantiations are not in competition with one another. Alexy addresses that possibility. The usual candidate for such a right in German law, he suggests, is the Basic Law’s principle of “inviolable” human dignity.105 While the constitutional language may suggest an absolute principle, according to Alexy the court’s cases establish



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only that there is a “core area of private autonomy,” protected by a rule, with a periphery where intrusions on private autonomy are permitted when the reasons are deemed sufficiently important.106 Here, too, it is a matter of considering the precedence among reasons in accommodating the right to human dignity with collective interests or (perhaps) other competing rights. For his part, perhaps due to the relative emptiness of his notion of “appropriateness” in application discourses, Habermas seems to allow courts to do what seems practically indistinguishable from Alexy’s proposal. He describes legal norms as a “package” of reasons107 that constitutional courts may unpackage for purposes of applying the norm, so long as they do not assume the position of a legislator: The legitimating reasons available from the constitution are given to the constitutional court in advance from the perspective of the application of law. . . . The court reopens the package of reasons that legitimated legislative decisions so that it might mobilize them for a coherent ruling on the individual case in agreement with existing principles of law; it may not, however, use these reasons in an implicitly legislative manner that directly elaborates and develops the system of rights.108

Perhaps Habermas intends a distinction between “reasons,” on one hand, and “purposes,” “goals,” or “values,” on the other. But it is difficult to see what meaning general principles have if one bars consideration of the purposes, goals, or values these principles could be said to advance (or, on another view, were thought by their authors, or contemporaries of their authors, to advance). Further, the idea that a “firewall” separates norms and values perhaps makes sense for “moral” norms, at least as Habermas conceives of them. Those norms are to be justified not through their coherence with a particular collective form of life but through a strict universalization test that takes humanity as such to be the “reference system.” Legal norms, by contrast, are justified not just in universalistic moral discourse, Habermas has said, but also through pragmatic and ethical-political discourse. As Habermas has explained, interests, values, and collective goals all are relevant, even dominant, in pragmatic and ethical-political discourse. Given this conception of legal norms’ “validity basis,” then, it seems peculiar to exclude, in an “application discourse” that interprets a legal norm, the very considerations that were relevant to its justification.109 Apart from his critique of value jurisprudence, Habermas recognizes this point. As I have noted, Habermas argues at least intermittently that courts must work with, and interpret, the “package” of reasons relevant to a legal norm’s justification. He also has acknowledged the point in outlining

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his distinction between legal and moral norms. There Habermas states that legal “discourses of justification and application” cannot focus only on the “justice” considerations of moral discourse, but “also have to be open to a pragmatic and ethical-political use of practical reason.”110 Habermas is right that legal principles are not themselves values, goods, or collective goals. But surely the values, goods, and collective goals relevant to a principle’s justification are relevant in concretizing it for application to a particular case or in resolving a competition among competing principles.111 Habermas presents his critique of value jurisprudence as a critique of the German constitutional court’s “methodological” error.112 In my view, nothing much separates Habermas from Alexy in method, and because Alexy offers his approach as an interpretation of German constitutional court practice, nothing much evidently separates Habermas’s proposed method from the German court’s method. Habermas’s critique of the German court seems to me properly substantive, not methodological. His argument, I believe, should be not that the German court has committed a category mistake by confusing principles and values but that it has “unpackaged” the principles improperly in particular cases—following its own normative purposes and not those marked by the constitution. That critique would require Habermas both to offer a substantive theory of what the German constitution means and to document the ways in which the German court, in its particular cases, has departed from that meaning. But Habermas does not follow that path in Between Facts and Norms. A substantive critique—however undeveloped in Habermas’s exposition—would be consistent with Habermas’s general aims. The account of judicial methodology is only part of Habermas’s more general separation-of-powers theory. The basic principle of the constitutional state, Habermas has said, is that the connection between communicative and administrative power must be maintained—or, more specifically, that the priority of democratic legislation, understood to include constitutional provisions along with ordinary statutes, must be preserved. From that point of view, judicial rulings that decisively change the meaning of statutes or constitutional provisions amount, in Habermas’s terminology, to the triumph of judges’ administrative power over democratically legitimate expressions of citizens’ communicative power. That concern is what animates Habermas’s claim that courts must be bound “to existing law” and his statement that a court may not “make whatever use it likes” of the reasons that are “packaged in, and linked to, statutes.”113



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3.2.2 The Proceduralist Model of Constitutional Courts’ Legitimate Role Habermas develops his “proceduralist” account of constitutional courts’ role in contrast to what he characterizes as “liberal” and “republican” models of law and politics. His idea is to appropriate from each what is useful. This strategy is unsurprising: It relies on contrasts developed throughout his discourse theory of law. His account of the two “ideas that can justify modern law” connects “human rights” with liberalism and “popular sovereignty” with republicanism.114 In his system of rights, the categories of rights devoted to private autonomy respond to the “liberal” side of the liberal/republican divide, and the categories of rights that secure public or civic autonomy respond to the “republican” side. Critical as Habermas is of republican theories—and, I will argue, not always fairly critical—his sympathies lie closer to that side than to the liberal model. The sketches that Between Facts and Norms offers of both the liberal and republican models are, as Habermas says, “stylized.”115 In the liberal model, he has said, basic individual rights obtain only as negative rights against state interference.116 These rights create a sphere in which individuals may pursue private ends.117 The political process involves a competitive struggle for power among strategically acting groups,118 with citizen participation through voting necessary primarily as a check on government and primarily for the sake of protecting citizens’ private ends.119 The measure of legitimacy is quantitative—votes, understood as the aggregation of preferences.120 In terms of Habermas’s system of rights, the emphasis is much more strongly on private autonomy, with citizens’ public autonomy figuring primarily as an instrument for securing private autonomy. Given this characterization of the “liberal” model, we see immediately that Habermas cannot accept it as his own. Habermas designed his “system of rights” so that private and public autonomy would be “co-original” and would receive equal weight. If the “liberal” view is that public autonomy has value only as an instrument for securing private autonomy, then Habermas cannot accept that view. Further, Habermas’s conception of citizen participation involves considerably more than just voting. He emphasizes the constitutive role of citizens’ discussion in the political public sphere—constitutive for the generation of legitimate law but constitutive also for personal and group identities. Within formal governmental institutions, Habermas has emphasized the importance of discourse, not just bargaining and compromise. The separation-of-powers theory Habermas has urged is designed not

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just to protect private interests from government encroachment but also to bind administrative power to citizens’ communicative power. Partly for these conceptual reasons, but partly because of changing social conditions, Habermas argues against a “liberal” conception of basic rights and their enforcement. The “classical scheme for the separation and interdependence of government branches,” he says, “no longer corresponds to” the constitutional court’s mission of “keep[ing] watch over just that system of rights that makes citizens’ private and public autonomy equally possible.” The most pertinent change in social circumstances that Habermas describes is a tendency toward greater concentration of power. And so while “liberal” models see the danger to private autonomy exclusively (or at least primarily) in government intervention, for Habermas the danger to private autonomy comes as much from “positions of economic and social power” as from the state. From his perspective, the “liberal” prescription of formally equal freedoms to vote and otherwise participate cannot be sufficient. The effective exercise of “communicative and participatory rights”—public autonomy—is threatened, according to Habermas, by unequal social power.121 Thus the task of “keep[ing] watch over” the system of rights cannot mean that the constitutional court should be attentive only to threats from the state and the infringement of formally equal liberties. In ways we will soon consider, Habermas argues that the constitutional court must be attentive to the danger that concentrated social and economic power poses to both private and public autonomy. Here Habermas’s thinking reflects the German more than the American constitutional tradition. For the most part, the American system protects basic rights, such as the right of equality or the freedom of expression, only against state action, not private action. The German constitutional court, however, has held that constitutional rights norms have a “radiating effect” that “affect[s] the relations between citizens” to produce a “third party or horizontal effect.”122 Habermas recognizes similar effects specifically in the area of social-welfare rights.123 As Robert Alexy explains, the idea of horizontal effect may mean different things. On one interpretation favored by the German court, it amounts to an interpretive mandate that private-law norms must be interpreted in light of constitutional rights (“indirect effect”).124 Alexy discerns also two other senses of “horizontal effect.” According to the idea of “direct effect,” “certain rights and no-rights, liberties and no-liberties, powers and disabilities” exist between citizens “on the basis of constitutional reasons, which would not exist in the absence of these reasons.”125 And according to the idea of “in-



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direct effect,” the state must have regard for constitutional rights norms, as “objective principles,” “both in legislating in the private law field and also in private law adjudication.” Each of these three “models,” Alexy argues, “correctly highlights some aspects of . . . horizontal effect cases.”126 With this possibility that constitutional rights may affect private-law norms— with respect to both judicial interpretation and legislative duties in enactment—the German system is more attuned than the American system to Habermas’s concern for concentrated social and economic power’s constitutional dangers. Habermas acknowledges similarities between the modern republican model—particularly Michelman’s—and his own conception. As does Habermas, modern republicans emphasize the “procedural conditions” of modern democracy that include deliberation within formal political institutions. But more characteristically, and in common with Habermas, neorepublicans see democracy’s basic operations outside those formal institutions. They emphasize, Habermas notes, the importance of citizens’ public autonomy, with communication and participation rights “preeminent[]” among civil rights.127 The link between the democratic process and law’s legitimacy depends on robust, potentially preference-changing, political discussion among citizens in the political public sphere. And, with Habermas, Michelman sees the social basis of this public sphere in the voluntary associations of civil society.128 These civil-social organizations occupy the “margins” of the officially organized political system. By virtue of that location, they are ideally situated to produce novel “initiatives, issues and contributions, problems and proposals.”129 A prime role for constitutional courts, according to the neorepublican essays of Michelman and Sunstein, is the promotion of deliberative democracy, conceived as operating inside and outside formal political institutions.130 These similarities between Habermas’s theory of democracy and neorepublican theory—especially Michelman’s version—are striking. In distancing his “proceduralist” conception from the republican view, however, Habermas works up and in my view exaggerates two differences. First, Habermas asserts repeatedly in Between Facts and Norms, neorepublican theory à la Michelman assumes a deep “ethical” consensus that “does not sit well with the conditions of cultural and societal pluralism that distinguish modern societies.”131 For that reason, Habermas argues, neorepublican theory operates with an idealized and even premodern conception of politics.132 According to Habermas, neorepublican theory therefore tends to see actual politics as “fallen” and defective. And therefore, Habermas

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claims, republicans resort, necessarily, either to an activist constitutional court as substitute for the absent people or to a romanticized but ritualized “symbolic politics.”133 The first part of this diagnosis depends on largely overlooking the “neo” in “neorepublican.” Habermas places great emphasis on republicanism, unmodified, as a theory of ethically unified communities, with full exercise of citizenship to be expected from only the most virtuous members of those communities.134 He reads Michelman to continue this presupposition of strong ethical consensus.135 This reading is mistaken, in my view. Michelman explicitly poses, as a central problem for any neorepublican theory, the tension between, on one hand, traditional republicanism’s assumptions of deep consensus among members of an ethically integrated elite of a small community and, on the other hand, the modern American realities of ethical and cultural plurality.136 He inquires whether, starting from modern conditions, his revised version of republicanism could account for how an ethically plural and interest-divided public of citizens might democratically produce law, such that each could accept that law.137 One might not like Michelman’s answer to that question. Or one might, as I do, take the question concerning universal acceptance to be the wrong one. But Habermas is not in any position to make that latter objection. The question is exactly the one that he asks. And Habermas’s accusation that Michelman assumes deep ethical consensus from the outset unfairly chains Michelman to elements of the republican tradition that he is attempting to revise.138 The idea that Michelman resorts to “symbolic politics,” on the order of “bicentennial celebrations of the Declaration of Independence,”139 is particularly mistaken. In making this charge, Habermas refers specifically to Michelman’s statement that a modern, large-scale, democratic political community’s identity—made, by the way, not found—depends on “remembrance” of the community’s origins “in public acts of deliberate creation.”140 But what Michelman is talking about, I think, is something closely akin to Habermas’s own “reconstructive” account of how a legal community constitutes itself as a self-governing legal community, under law, with both private and public autonomy secured. Michelman’s inquiry is, to be sure, historical in a way that Habermas’s is not: He speaks of the origins of specifically American constitutionalism, not the principles of the constitutional state in general. But the idea of politics as periodic return to origins is not Michelman’s conception. After noting that the founding of the American republic was an act of “popular self-creation,” Michelman adds, with respect to the idea of self-governance: “Once, however, is hardly



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enough.” He goes on to criticize the “myth of the Founder” in “classical republican” thinking, in which politics is a cycle between forgetting and recollecting the founder’s unique virtue.141 Democratic politics for Michelman is an ongoing and uncertain matter, with a tension between the original act of popular self-creation and subsequent developments of the constitutional project. It is hardly a matter either of ritually celebrating origins and founders or of returning, without mediation, to the founders’ wisdom. The notion of deliberative politics with which Michelman operates is, to be sure, idealized. But certainly the same is true for Habermas’s own discoursetheoretical account of the connections between citizens’ communicative power and the administrative power of the state apparatus.142 That leaves the question of the constitutional court’s legitimate authority. According to Habermas, Michelman, perhaps more than other neorepublicans, sees the danger of “constitutional-court paternalism.”143 But given Habermas’s interpretation of Michelman—the assumption of a deep ethical consensus and an understanding of politics only as “symbolic” politics—Habermas has to conclude that Michelman tends toward the paternalism he tries to resist. That conclusion, after all, was what was supposed to follow from Michelman’s misunderstanding of ethical consensus and politics. Habermas’s claim was that neorepublican theory, including Michelman’s work, leaves a vacuum in the idea of deliberative democracy that requires substitution of courts for the people. Habermas is on somewhat firmer ground with this conclusion than he was with the premises of his argument. As Habermas notes, Michelman recognizes that constitutional-court “activism” is suspect on his premises. In fact, Michelman sees also that any form of judicial review is difficult for him to justify.144 That difficulty motivates and structures his essay Law’s Republic. Michelman begins with an account of the Supreme Court’s decision in Bowers v. Hardwick, which relied on notions of deference to democratic legislation and “majority sentiments about . . . morality” to sustain application of an antisodomy criminal statute to same-sex sexual conduct.145 Classical republicanism, Michelman observes, would seem to speak in favor of the Bowers decision. And so, given Michelman’s commitment to opposing Bowers, he needs to find resources in neorepublican theory that amend the classical republican emphasis on “normative unity.”146 Even in his last paragraph of the essay, however—after he has presented his constitutional argument for a different result in Bowers—Michelman notes that “the difficulty remains of explaining how it can be right to address such a non-demonstrative argument about the impermanent meaning of

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the people’s law to any body other than the People.” Michelman’s answer to this difficulty is tentative, relying in the first instance on the idea that judges “perhaps” have some special cognitive or normative advantage: Judges perhaps enjoy a situational advantage over the people at large in listening for voices from the margins. Judges are perhaps better situated to conduct a sympathetic inquiry into how, if at all, the readings of history upon which those voices base their complaint can count as interpretations of that history— interpretations which, however re-collective or even transformative, remain true to that history’s informing commitment to the pursuit of political freedom through jurisgenerative politics.147

As Michelman recognizes, however, this kind of answer raises serious questions for a theory that, at its core, presents popular political engagement as jurisgenerative and the source of legal legitimacy. “[A] judicial constitutional convention,” Michelman admits, “is not equivalent—indeed it is contrary—to actual democracy.” Michelman’s ultimate answer is “pragmatic.” “Actual democracy is not all there is to political freedom,” he says in the essay’s final sentence, “and Hardwick is before us, appealing to law’s republic.”148 This passage, together with a related passage that Habermas quotes,149 makes the best case for Michelman’s slippage into “constitutional-court paternalism.” But if he is guilty of that offense, he is not driven to it for the reason Habermas thinks. The passages show that Michelman precisely does not assume a deep ethical consensus that is binding on all interpreters of law. Part of his idea of “political freedom,” invoked in the last lines, is freedom from a political community’s consensus, and the passage that Habermas quotes assigns judges the task of “challeng[ing] ‘the people’s’ selfenclosing tendency to assume their own moral completion as they now are.”150 Further, Michelman hesitates to rely on “actual democracy,” in the context of Bowers, not because he has a premodern notion of politics that both demands total engagement from a virtuous people and, for that reason, cannot be realized under modern conditions. Instead, Michelman’s concern—that “voices from the margins” will go unheeded—identifies a structural problem in majoritarian political institutions that is recognized in both American constitutional law and constitutional theory.151 Whether or not Michelman is right that the Georgia statute unconstitutionally denies rights of privacy and equal citizenship is an interpretive question that can be answered only by addressing the substantive merits of Michelman’s constitutional argument.152



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To be sure, Michelman’s final paragraph betrays considerable anxiety about his constitutional argument. Voices heard from the margin are not necessarily to be given authority, and majoritarian democracy is not always to be distrusted. But Michelman is not alone in trying to sort out these difficulties. He has, in fact, the company of Habermas. Consider Habermas’s initial characterization of legitimate judicial review: Judicial review should refer primarily to the conditions for the democratic genesis of laws. More specifically, it must start by examining the communication structures of a public sphere subverted by the power of the mass media; go on to consider the actual chances that divergent and marginal voices will be heard and that formally equal rights of participation will be effectively exercised; and conclude with the equal parliamentary representation of all the currently relevant groups, interest positions, and value orientations. Here it must also refer to the range of issues, arguments and problems, values and interests that find their way into parliamentary deliberation and are considered in the justification of approved norms.153

This passage is surprising in a number of respects. Perhaps most surprising is that Habermas offers it as an endorsing interpretation of John Hart Ely’s theory of judicial review. While the main themes of Ely’s “representation-reinforcing” theory come through—“clearing the channels of political change” and “facilitating the representation of minorities”154— William Forbath is right that Ely “might be amazed” to see his theory characterized in this way.155 Conclusions about exactly what Habermas would have the Supreme Court do are difficult to draw, from this or any of Habermas’s other discussions of a constitutional court’s legitimate powers.156 But the picture that emerges suggests, in Habermas’s own characterization, a “rather bold constitutional adjudication”157 that would make not just Ely but perhaps even Michelman uncomfortable. In developing Ely’s themes of representation reinforcement, Habermas suggests that the “power of the mass media” operates to “subvert[]” the political public sphere. Elsewhere in Between Facts and Norms he explains what he means by this charge. Concentration of editorial control in the hands of a few induces a centrist bias that does not facilitate the representation of “divergent and marginal voices.” Habermas criticizes also the fragmentation of issues and the presentation of politics as entertainment, as well as the accommodating response among party and political leaders to these very developments. While Habermas notes research suggesting that the public’s critical capacity may not be as low as often is alleged,158 he sees

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the “social power” of large media organizations as a threat to “nullify[]” the “constitutionally regulated system of power”—and thus as a threat to the legitimacy of the political system and its decisions.159 Habermas does not make clear what a constitutional court is supposed to do about these problems, and in part his criticisms are directed to media organizations themselves. But Habermas also notes that in Germany one finds the beginnings of “constitutional regulation” that would reduce the social power of media organizations and, presumably, diminish their agenda-setting capacity. Mentioning both media self-regulation and mass-communications law, Habermas endorses the proposal that political and social actors would be allowed to “use” the public sphere only insofar as they make convincing contributions to the solution of problems that have been perceived by the public or have been put on the public agenda with the public’s consent. In a similar vein, political parties would have to participate in the opinion- and will-formation from the public’s own perspective, rather than patronizing the public and extracting mass loyalty from the public sphere for the purposes of maintaining their own power.160

This proposal, however, would seem to outfit government officials with the power of selecting among speakers and the content of speech. Even with the aim of ensuring “convincing contributions” and upgrading the level of political discourse, the constitutional problem here is obvious—especially in the American context, where government selection among speakers is regarded as perhaps the chief evil addressed by the Constitution’s free-speech and free-press clauses.161 Certainly one can imagine a constitutional argument that would support the proposals Habermas is discussing. Whether that argument connects with the body of free-expression doctrine in this country, however, is doubtful.162 Habermas, of course, does not err simply by rejecting implicitly the received wisdom of American constitutional doctrine, and Between Facts and Norms is not intended as a treatise on American constitutional law. But the tension between mass-media-dominated political discussion and deliberative democracy is relatively easy to identify. What would be helpful would be consideration, also, of the other side of the free-expression question. Habermas’s proposal raises obvious problems, and not just under prevailing American doctrine. His own theory suggests that civil-social organizations and the political public sphere need to be constitutionally protected and not dominated by government.163 It is hardly obvious, however, that his proposal would not undermine the public sphere, albeit through state administrative power rather than through the social power of media organizations.



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Habermas sounds also the second theme of Ely’s “representationreinforcing” theory. A constitutional court’s judicial review, he says, must “consider the actual chances that divergent and marginal voices will be heard and that formally equal rights of participation will be effectively exercised.”164 This kind of position follows from Habermas’s rejection of the “liberal” paradigm and its emphasis on purely formal equality. Disparities of social and economic power, Habermas has said, threaten full and effective participation in the democratic process, and, accordingly, these disparities threaten the legitimacy of official decision making. But Habermas, understandably in the general-theoretical work Between Facts and Norms, is short on details. How should the divergence between full and actual participation be taken into account? Presumably the court is not free to rewrite legislative norms, reasoning that they would have been different had the political process been genuinely and effectively open on equal terms. But under what circumstances may it invalidate, or refuse to enforce, legislation on those grounds? Should it, instead, remand the issue to the legislature?165 Given that social and economic power always is unequally distributed in some measure, how serious must the imbalance be to justify the court’s solicitude? The answers to these questions would help explain just how assertive Habermas’s constitutional court would be. Most interesting in Habermas’s account of judicial review is his reference to “equal parliamentary representation” for all “currently relevant groups, interest positions, and value orientations.”166 By “equal” he means, presumably, equal in proportion to their influence in the public sphere. But how is that influence to be measured? If, as in this country, the political system operates under a “first past the post” scheme of districted elections, then voting outcomes will be biased against smaller parties,167 and even public opinion polls likely will reflect that bias. It seems that the proportional representation system must already be in place for there to be measures adequate for implementation. Further, and more fundamental, how should the court go about ensuring that all currently relevant groups and positions receive parliamentary representation? Habermas doubtless is thinking here of European systems in which his ideas already are reflected in present political organization.168 Whether he could make the same recommendation in the very different context of American politics is doubtful. Legislation, such as the Voting Rights Act, goes some small way toward Habermas’s proposal. But it is difficult to imagine an American court, on its own, mandating proportional parliamentary representation for all “currently relevant groups, interest positions

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and value orientations.” The connection between this kind of representation and a laudable system of democracy is evident—though hardly indisputable. But without any firm basis in politics as it now is practiced, the power of a court to mandate this kind of change, even in the name of sound democratic procedure, seems at least doubtful. It is a long way from Reynolds v. Sims’s “one person, one vote”169 ruling to a constitutionally mandated system of proportional representation for groups, interests, and value orientations. Two current issues in American constitutional law demonstrate the gap between what Habermas envisions for judicial review and what the U.S. Supreme Court is prepared to deliver. The first is campaign finance, and it indicates primarily substantive differences between Habermas and the Court. The second concerns “gerrymandered” electoral districts, and it illustrates primarily a difference with respect to the limits of legitimate judicial activity. My account of the gap is not intended as criticism of Habermas’s account. Instead, Habermas’s work can generate both criticism of American political reality and also support for reform outside of the courts. The issue of how to finance political campaigns clearly is a central issue for democratic and constitutional politics, and deliberative democratic theorists tend to support equalizing political spending. Rawls, for example, sees public funding of campaigns, together with limits on private contributions, as essential to establishing and maintaining the “fair value” of equal political liberties.170 He supports, also, an egalitarian regulation of expenditures on campaign speech. Writing even before the Court’s 2010 decision in Citizens United v. FEC, which invalidated congressional limits on corporate campaign expenditures, Rawls observes that “what is dismaying is that the present Court seems to reject altogether the idea that Congress may try to establish the fair value of the political liberties.”171 Dworkin, too, argues that deliberative-democratic ideals require much stronger regulation of campaign contributions and even speech itself. “Money is the enemy not just of fairness but of real argument,”172 he maintains. Going well beyond the kind of regulation that Citizens United invalidated, Dworkin advocates, for example, that campaign advertisements in the familiar form should be forbidden on all networks except subject to the following regulations: the advertisement must run for a minimum of three minutes, of which at least two minutes must consist in a candidate for office or an officer of an organization that has paid for the advertisement speaking directly to the camera.173

While Habermas seems not to have commented directly on campaignfinance issues, that might reflect the fact that German political campaigns



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are much shorter, cheaper, and heavily subsidized by public funds. Were he to attend to the American context, Habermas likely would see campaignfinance regulation to be an essential part of maintaining a democratic and egalitarian political process. Accordingly, he likely would take its support to be a central part of American judicial review. After the Citizens United case, however, regulation of campaign finance seems constitutionally blocked. In that decision, the Court invalidated limits on corporations’ and unions’ use of general-treasury money to engage in what federal law called “electioneering communication.” By that term, Congress meant “ ‘any broadcast, cable, or satellite communication’ that ‘refers to a clearly identified candidate for Federal office’ and is made within 30 days of a primary or 60 days of a general election.”174 The challenged statute itself (the 2002 Bipartisan Campaign Reform Act or “BCRA,” informally known as “McCain-Feingold”) had left open many channels for corporate electoral speech. Unlimited expenditures from the general treasury were permissible at any time other than the thirty- or sixty-day windows, and within those windows corporations still were permitted to spend freely on speech through their PACs, or “political action committees,” which are segregated funds whose money is raised from employees or stockholders expressly for political purposes. (The amount of money in a PAC, the theory goes, reflects support for its sponsor’s political ideas, whereas the amount of money in a corporation’s general treasury reflects only the relative popularity of its goods and services.) Further, corporations were free to use general-treasury money at any time so long as the funded speech addressed only issues and not candidates. Finally, corporations’ speech in print or through the Internet was wholly unregulated. Yet the Court ruled in Citizens United that the First Amendment prohibited the distinction Congress had made between speech by corporations and speech by individuals and other noncorporate organizations. The Court’s ruling may endanger the other limit Congress imposed in the BCRA. That limit was on the political parties’ ability to raise so-called soft money, that is, money raised in unlimited amounts that then could be used for political speech that was formally—although often not really— independent of political campaigns.175 In banning soft-money donations, Congress’s objective was to block what had been a way around limits on direct contributions to candidates. One effect of that regulation, however, was to shift money away from the political parties and toward (typically) more sharply ideological independent groups known as “527s” (after the provision of the Internal Revenue Code under which they organize).176

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And at the oral argument in Citizens United, the question emerged whether invalidating BCRA’s regulation of electioneering communications would, by now encouraging money to move toward corporations and unions and again away from political parties, create pressure to repeal BCRA’s ban on soft money.177 Some experts predict that the Court itself is likely to overturn the soft-money ban,178 and given the 5-4 vote on that issue the first time around—a breakdown that, like the alignment on electioneering communications, has shifted with the Court’s changing composition—the prediction seems cogent. The result of such a decision would be to leave the place of money in politics less regulated than it was before the 2002 BCRA, with the opportunity for corporations, unions, and wealthy individuals to exercise outsized influence in public-sphere electoral debates. Given Habermas’s conception of the constitutional court as guardian of (to borrow Rawls’s phrase) the “fair value” of the equal political liberties, American observers inspired by Habermas’s work could press criticisms of the U.S. Supreme Court’s present course. And Habermas’s emphasis on procedural approaches could support the kinds of campaignfinance regulation left open by Citizens United: requirements that corporate (as well as other) expenditures on electioneering communication must be disclosed and “disclaimer” requirements that those responsible for funding broadcast ads must clearly identify themselves. As the Court noted in Citizens United, these requirements increase the transparency of corporation-funded speech and “enable[] the electorate to make informed decisions and give proper weight to different speakers and messages.”179 As the Court noted further, internet publication makes the disclosed information readily accessible to ordinary persons, both voters and shareholders. The problem, however, is that disclosure and disclaimer requirements by themselves seem insufficient to fill the gap that Citizens United created. Accordingly, a Habermasian response to the campaign-finance situation at present would be to join those who, like Harvard law professor Lawrence Lessig, are pressing for a constitutional amendment that would authorize the kinds of campaign-finance regulation just invalidated.180 Indeed, the Habermasian likely would want to go much further here in limiting the effect of unequal social power on the value of formally equal political liberties. The people acting through constitutional amendment would not be subject to limitations conventionally thought to bind reviewing constitutional courts. A second issue that shows the gap between Habermasian constitutional ideals and current American constitutional reality—and the potential for



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Habermasian criticism—is the issue of partisan gerrymandering in drawing electoral districts. As the early nineteenth-century referent of the term indicates,181 gerrymandering has been part of American politics since the establishment of a party system,182 and those in office long have drawn the boundaries of electoral districts to favor themselves and their allies. But only in the past thirty or so years, once advanced computer technology began to become cheaply available to process detailed, block-by-block votingregistration information, did the art of partisan gerrymandering become almost an exact science. When outfitted with the power to draw district lines, each major party tends to protect its incumbents with “safe” seats and to minimize the electoral prospects of its opponents by “cracking” (splitting the party’s stronghold with a district-dividing line) or “packing” (placing a large supermajority of the party’s supporters in a single district, thus preventing it from winning two seats rather than one).183 Since the 2000 election cycle, a parallel trend has been the “bipartisan” or “sweetheart gerrymander,” a sort of “non-aggression pact between the two parties” designed to protect incumbents of each party.184 The result has been an increase in the number of safe seats with a corresponding decline in electoral competitiveness. A common hypothesis is that further results are a decrease in representatives’ accountability to the electorate and an increase in sharp-edged partisanship.185 While one might dispute whether sharper partisanship necessarily is a vice for a political system, a decline in accountability surely is. Since the 1980s, the Supreme Court has considered constitutional challenges to partisan gerrymanders but, so far, ultimately has denied relief. When it first considered the issue in 1986, a majority of the Court’s members recognized the possibility of a successful challenge but failed to unite on a constitutional standard.186 Eighteen years later, the Court emerged in more or less the same place: Five members of the Court believed that partisan gerrymanders could violate the Constitution and perhaps, in some future case, be amenable to judicial relief, but a majority of the Court found no violation in the case before them, and no majority coalesced around a single constitutional standard.187 The issue of partisan gerrymandering became more difficult still when the Supreme Court permitted Texas’s 2006 partisan gerrymander, notwithstanding prior convention that redistricting would occur only immediately after each decennial census. And in that case, too, the Court failed to agree on a standard for evaluating the constitutionality of partisan gerrymanders.188

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But that this democracy-endangering practice189 evades judicial redress hardly exhausts the avenue for constitutional politics. The question whether partisan gerrymanders may violate the Constitution is, for the Supreme Court, only one of justiciability. Even Justice Scalia, writing for three other Justices to find the issue nonjusticiable, seemed willing to grant that “an excessive injection of politics” into redistricting “is unlawful.”190 And Scalia’s argument for nonjusticiability relied heavily on the availability of congressional rather than judicial relief. While the Constitution confers on states the responsibility for congressional districting in the first instance, it reserves to Congress the power to “check partisan manipulation of the election process by the states.”191 Legislation to that effect has been introduced in the House and Senate, after similar bills died in both houses during the last Congress.192 It may be unrealistic to expect Congress to correct the practice that seats its members but, as popular discontent with the practices of partisan and bipartisan gerrymandering increases, perhaps not. In any event, and besides also the possibility of federal constitutional amendment or state constitutional litigation, legislative action at the state level is both possible and underway. A small but increasing number of states have taken redistricting—for both congressional and state legislative office—out of the hands of state legislatures and put it in the hands of independent and presumably neutral commissions. Other states use commissions in an advisory capacity or as backup in case of legislative deadlock. Other mechanisms, such as more or less purely computer-generated districting, have been proposed.193 While the future of this reform movement is of course uncertain, it nicely illustrates Habermas’s idea that the constitution is an ongoing project—one that should engage citizens and legislatures, not just courts. In this area, unlike others, the Supreme Court has recognized that nonjudicial actors have a role in constitutional development.194 Two final points about Habermas and the role of constitutional courts are appropriate. First, his discussion of the “rather bold” approach courts should take when considering the democratic political process should not obscure the more deferential approach he commends in other areas. For Habermas, the constitution is a project whose elaboration involves not just the courts but the legislature and the people as well. In this respect his thinking converges with recent work in American constitutional theory that focuses on the “constitution outside the courts” and “popular constitutionalism.”



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Building on work by Paul Brest and Sanford Levinson,195 Mark Tushnet has analyzed the role of Congress—and, taking a comparative perspective, other national legislatures196—as constitutional interpreter. Like Habermas, Tushnet is moved by the tension between judicial review and democratic self-governance. The greater danger, he argues, is posed by “strong-form,” as opposed to “weak-form,” judicial review. This distinction between “strong-” and “weak-form” review is illuminating and, in my opinion, would much enrich Habermas’s analysis. By “strong-form” review, Tushnet means a system, like the American system, in which “judicial interpretations of the Constitution are final and unrevisable by ordinary legislative majorities.”197 “Weak-form” review, by contrast, “provides mechanisms for the people to respond to decisions that they reasonably believe are mistaken”—mechanisms that “can be deployed more rapidly than the constitutional amendment or judicial appointment processes.”198 Examples of weak-form review that Tushnet discusses include the variants found in New Zealand, the United Kingdom, and Canada. In each variant, the national legislature, rather than the constitutional court, has the last word in at least some areas of judicial review.199 American observers tend to be skeptical of weak-form review and distrustful of the very idea of legislatures as constitutional interpreters. Tushnet argues that one reason for the distrust—and for some of the poor congressional performances that fuel that distrust—is what he calls “the judicial overhang”: Congress “know[s] the courts are available to correct (some) of their constitutional errors,” and for that reason “legislators have little incentive to expend great effort in enacting only constitutionally permissible statutes.” As an example of the overhang, Tushnet cites Senator Arlen Specter’s explanation for his vote in favor of the Military Commissions Act of 2006. While Specter believed that part of the act was unconstitutional (his amendment to correct the problem had failed), he justified his vote for the act by noting that the Supreme Court would “clean it up.”200 And the Court did.201 The example illustrates, first, that the judicial overhang complicates our ability to evaluate Congress’s capacity for congressional interpretation: While, according to the Court, Congress got the Constitution wrong in the Military Commissions Act, Specter’s remark indicates that in that instance congressional interpretive capacity was not necessarily lacking.202 The example illustrates, further, that the judicial overhang likely inhibits Congress from developing its constitution-interpreting capacity. The judicial overhang problem in strong-form systems demonstrates the need for a comparative perspective. Are legislatures in weak-form

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systems actually better constitutional interpreters than their counterparts in strong-form systems? In particular, are they better protectors of basic rights? Answering those questions requires both substantive interpretation of the respective constitutions and a substantive theory about the appropriate level of basic rights protection. Further, to the extent that legislatures in weak-form system perform better than strong-form counterparts, what institutions, practices, and procedures are responsible? If strong-from review is firmly rooted, does local culture allow selective borrowing from, or at least learning from, exemplary weak-form institutions, practices, or procedures? Habermas does not draw the distinction between strong-form and weak-form review, but, given his separation-of-powers ideas and emphasis on legislative generation of law, some version of weak-form review would seem congenial to him. He might further be attracted to the idea of “popular constitutionalism” defended by Stanford Law School Dean Larry Kramer.203 Like Tushnet, Kramer attacks the idea of “judicial supremacy”—the notion that the Supreme Court has “the final word on constitutional interpretation.”204 While his argument is steeped in the specifically American history of judicial review, in contrast to Tushnet’s comparative and present-day approach, Kramer’s account adds an historical dimension to the Habermasian idea of the Constitution as an ongoing project that is not the property of a lawyerly and judicial elite. Kramer and Tushnet are hardly alone in contemporary American constitutional thought. From the direction of history and political science, Keith Whittington too has prominently attacked the idea of judicial supremacy.205 Within the legal academy, Robert Post and Reva Siegel have explored the connection between the making of constitutional law and social movements. Their position, however, which they call “democratic constitutionalism,” resists Kramer’s sharp alternative between judicial supremacy and democratic self-governance.206 Habermas’s social-theoretical and philosophical explanation of legitimate law’s necessarily democratic generation seems naturally to supplement this developing new literature in American constitutional theory and history. American progressives’ romance with courts seems to be ending. Writing from the direction of legal philosophy, Christopher Zurn recently has published an important study of judicial review from the point of view of Habermasian deliberative-democratic theory. As with proponents of popular or democratic constitutionalism, Zurn argues for a multiplication of the sites of constitutional interpretation and politics. Constitutional review is a “function,” he points out, that is not reducible to the



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specific “institution” of judicial review. After critically reviewing prominent American legal-theoretical justifications for judicial review, Zurn concludes with specific institutional proposals [that] best comport with the ideals of deliberative democratic constitutionalism: proceduralist judicial review located in an independent constitutional court . . . , constitutional self-review panels in the legislative and executive branches, mechanisms for dispersing decisional authority concerning constitutional elaboration across the branches of national government, easing overly obdurate amendability requirements, and civic constitutional fora for both democratic deliberation about constitutional matters and as alternative mechanisms for constitutional amendment.207

Although as Zurn acknowledges, not all of his proposals translate into likely reform of American institutions (such as the proposal for a specifically constitutional court rather than the comparatively more generalist U.S. Supreme Court), Zurn’s attention to questions of institutional design, as well as Habermasian deliberative-democratic theory, is a welcome addition to American constitutional theorizing. The final point about Habermas’s theory of constitutional courts’ legitimate role is signaled by his most general statement: that the constitutional court must “keep watch over just that system of rights that makes citizens’ private and public autonomy equally possible.”208 This statement raises the issue that has been at least implicitly present in some of the preceding discussion. Habermas’s reconstruction of the “system of rights” develops general categories of rights that, he says, a modern legal system must recognize if it is to be legitimate. He acknowledges, however, that there is more than one way to implement those categories of rights, and he emphasizes that the abstract categories are not enforceable legal rights until they have been “saturated” through democratic lawmaking. That means that even if we retain the idea that the “reconstruction” has some critical potential—it allows us to evaluate the relative legitimacy of particular implementations—still, Habermas cannot expect courts to do anything other than enforce the legal norms that in fact have been enacted. On Habermas’s theory, courts are “bound to existing law.” While a reconstructive account of the system of rights and constitutional state might be instructive in interpreting a particular legal system’s legal norms, nonetheless, courts must tether their decisions not directly to that account but directly to the governing legal norms. Thus the role of judicial review is not, strictly speaking, to “keep watch over just that system of rights that makes citizens’ private and public

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autonomy equally possible.” The role of judicial review, instead, is to keep watch over the version of the system of rights that govern in a particular legal community. The discourse theory of law is not itself a charter that is to be enforced directly. A critical account of how courts have fulfilled their mission cannot content itself with references to a reconstructive theory. Instead, it must engage directly the texts that authoritatively govern in a particular legal community. Understandably, Habermas saw that as beyond the scope of his project in Between Facts and Norms. But even on the premises of that project, critical evaluation of existing legal systems cannot avoid engaging the particular ways that—in authoritative legal texts— those systems have implemented the “system of rights” and “principles of the constitutional state.” That raises, at least in the American context, the problem of Habermas’s fifth category of basic rights, consideration of which I deferred in Chapter Two. This category consists of “basic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded, insofar as the current circumstances make this necessary if citizens are to have equal opportunities to” exercise their private and public autonomy.209 Even the statement of this category of rights raises a problem discussed earlier: How equal must the opportunities be made? And, given the “relative” rather than “absolute” justification of this category of rights, Habermas has to face an additional question: How close a connection should be required between new social and ecological rights, on one hand, and private and public autonomy, on the other? These questions are particularly pressing in the context of judicial review. If a court is convinced that the legislature has not done enough to implement social or ecological protection, what remedy should it order? The question is difficult because the legislative programs implementing these sorts of rights typically are detailed, with complex enforcement schemes. A more fundamental question, however, is whether Habermas can claim plausibly to have reconstructed modern legal systems generally when the American system offers so little in the way of basic protection—that is, constitutional protection—for social and ecological rights. True, Habermas assigns a significant role to legislatures in implementing the system of rights.210 He also recognizes that the German constitutional court has found a “radiating effect” of social-welfare guarantees so that they not only establish entitlements with respect to the government but also influence the content of private-law norms.211 But the near total absence of specific protection for these rights in American constitutional law poses a



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challenge to Habermas’s reconstructive theory. Perhaps American courts simply have made a mistake by failing to recognize deeper commitments implied by the system of law that we have. But if so, then that argument would need to be made.212 One might find the beginnings of that argument in comparative analysis of other nations’ attempts to recognize social and ecological rights. Most recently written constitutions, after all, offer explicit guarantees, albeit of various strengths, for these categories of rights. A growing Englishlanguage literature addresses these new forms of constitutional protection that rely on a variable mix of legislative and judicial institutional involvement.213 In sum, it is difficult to know exactly what to make of Habermas’s account of the constitutional court’s legitimate role. His positive statements on the subject are both brief and general. A strong reading of these statements would give the constitutional court considerable latitude to remake the democratic process. Further, because Habermas sees the democratic process as threatened by inequality in social and economic power, his proceduralist theory could be understood to authorize large-scale redistribution of power. On the other hand, however, his critique of “value jurisprudence,” while not strictly applicable in this context, suggests a conception of judicial restraint. Part of the difficulty in interpreting his views may be the difference between American and German constitutional law, particularly with respect to issues of free expression and the constitutional basis for social-welfare rights. The commitments of the “proceduralist paradigm” would be easier to discern if Habermas left the level of reconstructive theorizing and, in his “testing” of the discourse theory against the world of adjudication, encountered more concretely the particular ways in which the “system of rights” and “principles of the constitutional state” have been institutionalized.214

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System, Lifeworld, and Habermas’s “Communication Theory of Society” In the previous chapter, I considered Habermas’s attempt to “test” the “discourse concept of law and democracy” by immersing it into leading discussions of legal theory. That was the occupation of Chapters Five and Six in Between Facts and Norms. In the succeeding chapters of that work, Habermas takes up another test, this time against social theory. His aim, he has said later, was to develop a “reconstructive social theory which employs a ‘dual perspective’ ”—the perspective, first explored in his 1981 monumental work Theory of Communication Action, of “system” and “lifeworld.” The purpose of developing what he now calls a “communication theory of society” is “to make it plausible that the reconstructed normative self-understanding of modern legal orders does not hang in mid-air.” Instead, Habermas says, his proposed model “should explain how this [normative] self-understanding connects with the social reality of highly complex societies.”1 The idea is to ensure that the normative theory is not “utopian” in a pejorative sense. While in Theory of Communicative Action Habermas meticulously developed the concepts of system and lifeworld and the model of “interchange” between the two, Between Facts and Norms does not so much explain the basic concepts of his earlier theory as invoke them. But as I explain in section 4.1, such conceptual explication as he provides of “system” and “lifeworld” is generally consistent with the analysis provided in Theory of Communicative Action. Still, in developing the “communication theory of society” in which his “discourse theory of law” is to be situated, Habermas departs from his



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earlier understanding of the relation between system and lifeworld. One reason is that Habermas, for the first time, is giving systematic attention to law, and it turns out that law does not fit neatly into either the “system” or “lifeworld” category. To some extent this was true even in Theory of Communicative Action—recall Habermas’s distinction between “law as medium” (system) and “law as institution” (lifeworld). But Between Facts and Norms repudiates that distinction. And in placing law on center stage, the question of law’s relation to the system/lifeworld distinction becomes more pressing. Habermas’s initial solution to this difficulty is a proliferation of metaphors: Law, he says, “mediates” between system and lifeworld or operates as a “transformer” or “hinge” between system and lifeworld. In section 4.2, I discuss Habermas’s attempt to give these metaphors more precise content. As I noted at the opening to Chapter Two, Habermas’s general aim in the “communication theory of society” is to explain how the “communicative power” developed in citizens’ public-sphere discussion might influence and check state “administrative power”—and also how it might not. The theoretical construction Habermas develops here is the “model of the circulation of political power.”2 To some extent, I argue, the model of the circulation of power can be understood as consistent with the distinction between system and lifeworld. The model provides greater detail concerning the political public sphere, the “lifeworld environment” to the administrative system in Theory of Communicative Action. It presents, also, the idea of “civil society” as an elaboration of the lifeworld’s “private sphere.” Many of the innovations in Between Facts and Norms, then, can be understood as attempts to flesh out, or to adjust, the framework presented in Theory of Communicative Action. But despite Habermas’s continued allegiance to the system/lifeworld distinction, I argue in section 4.3, the model of the circulation of power in fact reworks the notions of system and lifeworld so substantially that Habermas’s official conceptions no longer apply. Power, even as it operates in the political system’s core, no longer can be understood as simply the “steering medium” Habermas described. The relation Habermas describes as one between “system” and “lifeworld” no longer is channeled exclusively through steering media, as the old interchange model prescribes. Law (or, the legal system) straddles the distinction that was supposed to constitute the theory’s axis. And on the “lifeworld” side, Habermas’s continued reference to the three “structural components” (culture, society, and personality) does not work for him. As the reader might guess, I think these developments in

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Habermas’s model of society are for the best, but, in moving away from the older notions of system and lifeworld, Habermas leaves basic conceptions in his model essentially untheorized. I argue that Habermas’s revised model can be shored up on both the “system” and “lifeworld” side of his basic distinction. On the system side, I suggest in section 4.4 that Habermas’s conception in fact approaches the post-Parsons “autopoietic” systems theory of Niklas Luhmann—even as Habermas generally polemicizes against that theory. Further but selective appropriation of autopoietic concepts, I argue, would improve Habermas’s social theory. On the other side of Habermas’s basic distinction, I argue that the concept of lifeworld as separate social sphere should be discarded.

4 .1 t h e offici a l ac c ou n t of “l i fe wor l d” a n d “s ys t e m” Habermas’s explication of the lifeworld concept, though abbreviated, tracks the account given in Theory of Communicative Action. As before, he presents the lifeworld first in Husserlian and Schutzian terms, as the unproblematic, taken-for-granted background of human action. But also as before, the idea of the “rationalization of the lifeworld” leads Habermas quickly to a different conception. In the course of that rationalization, Habermas claims, the lifeworld’s “structural components,” still fused in “archaic” societies,3 differentiate into culture, society, and personality.4 And, with that rationalization, social formations’ “symbolic reproduction”—cultural reproduction, social integration and socialization—comes to depend more heavily on participants’ communicative achievements.5 This account, like the parallel account in Theory of Communicative Action, works two changes on the original phenomenological conception of the lifeworld. First, Habermas’s emphasis on communicative action as mechanism for symbolic reproduction leads him to see the lifeworld as centered around specifically communicative action, not so much as the background to all social action. “The lifeworld,” Habermas writes in Between Facts and Norms, “is constituted from a network of communicative actions.”6 Second, Habermas’s discussion of the lifeworld’s rationalization turns the notion into a concept of society—a concept that takes on substantive theoretical significance. Social formations, conceived as lifeworlds, have “structural components.”7 In the course of historical development, they



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have been “rationalized,” in the sense that their cultural traditions, social institutions, and patterns of socialization have come to depend increasingly on specifically communicative action, and particularly on rational criticism. This revised conception of the lifeworld is, in the first instance, a conception of whole social formations as lifeworlds. But again following the path marked in Theory of Communicative Action, the term lifeworld soon comes to refer not to whole social formations but to only certain social spheres. As before, this redefinition depends on two premises: the centering of the lifeworld concept around communicative action and the idea that system and lifeworld have become uncoupled. Habermas’s account of the uncoupling of system and lifeworld is consistent with his account in Theory of Communicative Action. With the rationalization of society as lifeworld, he argues, “the risk of dissension increases with the scope for taking yes/no positions on criticizable validity claims.” At the same time, the potential for social conflict increases with the differentiation of interest positions and the “unshackl[ing]” of “self-interested pursuit of one’s own success.” The burden of social integration, then, shifts to the achievements of communicative action, while at the same time that very integration is endangered by the strategic pursuit of individual interests.8 Money and power, Habermas confirms, operate as “steering media” that can relieve the burden on communicative action. They are mechanisms of “system integration,” not (as with “values, norms, and mutual understandings”) “social integration.” 9 These media deploy “special codes” that abstract from ordinary language and permit users to circumvent the process of reaching communicative agreement (that is, consensus over claims to validity). Although Habermas omits the lengthy discussion of system differentiation he provided in Theory of Communicative Action, he characterizes the end result of that process in the same terms. The economic and administrative system differentiate out from the lifeworld’s societal component10 and “separate[] from the lifeworld.”11 These systems, which operate through “markets and governmental bodies,” respectively, “become “independent vis-à-vis socially integrated spheres of action, that is, spheres integrated through values, norms, and mutual understanding.”12 Thus, for Habermas, the lifeworld concept ultimately is a partial conception of society, referring to “socially integrated spheres of action” that are distinct from the economic and administrative systems. As in Theory of Communicative Action, the methodological distinction between systems

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theory and action theory becomes a substantive distinction that divides the social turf. And, as before, the question arises: What is the relation between system and lifeworld? A complete answer to this question will require examination of Habermas’s “circulation of power” model. The preliminary answer, however, begins with Habermas’s claim, consistent with Theory of Communicative Action, that the “steering media” of money and power must be “anchored in the society component of the lifeworld” through “legal institutionalization.”13 Habermas embellishes on this “anchoring” idea by describing law as a “hinge between system and lifeworld”14 or, alternatively, as a “transformer in the society-wide communication circulating between system and lifeworld.”15 What Habermas means by these catchphrases is two things. First, modern law can be analyzed in both system and lifeworld terms. Viewed from the “system” side of the system/lifeworld distinction, law institutionalizes the power medium by establishing the framework of offices and specifying rules of official command. It institutionalizes the money medium not just by establishing and maintaining a currency, but also by promulgating and enforcing private-law rules for money-mediated transactions.16 From the “lifeworld” side, legal rules and legal institutions “belong[] to the societal component of the lifeworld.”17 In developing his “discourse theory of law,” with its emphasis on participatory democratic lawmaking as the source of legal legitimacy, Habermas makes clear that law, to the extent that it is accepted as legitimate, is a source of social integration.18 The production and reproduction of legitimate law, then, is part of the symbolic reproduction of the lifeworld. Finally, in Habermas’s analysis of the democratic lawmaking process, the production of legitimate law connects the “communicative power” of citizens’ public-sphere discussion with the “administrative power” that operates within the differentiated administrative system. In these ways, law operates as “hinge” between system and lifeworld. The second sense of Habermas’s metaphors is signaled more clearly in the “transformer” than the “hinge” metaphor. Habermas, both in Theory of Communicative Action and in Between Facts and Norms, presents the media of money and power as specialized languages, differentiated from ordinary language. To the extent that the democratic lawmaking process successfully produces valid law, Habermas suggests, it mediates between the ordinary-language communication of the political public sphere and the specialized languages of (administrative) power and money.19 Habermas’s



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idea here is that legal validity has two sides. On one hand, modern law claims to be legitimate—that is, to be worthy of citizens’ rational assent— and to that extent it is related to the “normatively substantive messages” of citizens’ political communication in the public sphere. On the other hand, modern law leaves open the possibility of a different attitude—obedience rooted not in normative conviction but in the fear of sanctions for noncompliance. According to Habermas, this second aspect of legal validity is tailored to the strategic pursuit of economic interests and the exercise of administrative power (which is, essentially, the power of command). In this sense, Habermas claims, law “accepts” the normative “messages” that originate in lifeworld political communication among citizens and “puts these into a form that is comprehensible to the special codes of the powersteered administration and the money-steered economy.” And thus “the language of law . . . can function as a transformer in the society-wide communication circulating between system and lifeworld.”20 I will consider in the next section Habermas’s attempt, with his “model of the circulation of power,” to give the “hinge” and “transformer” metaphors more precise content. For the moment, it is enough to note that the image of law as “hinge” or “transformer” raises questions for Habermas’s understanding of the system/lifeworld relation. The first question concerns Habermas’s location of “legal institutions” in the lifeworld’s societal component. In Theory of Communicative Action, Habermas seemed to understand “legal institutions” as basic legal principles, especially those of contract and property law. But what of “legal institutions” such as courts? How are they to be understood? Do they have a double status, such that they belong to both system and lifeworld? Or, as the “hinge” and “transformer” metaphors suggest, are they somehow intermediate between system and lifeworld or astride the system/lifeworld distinction? Second, how is it that a lifeworld sphere—the political public sphere— can send “normatively substantive messages” to the administrative system? The system/lifeworld model developed in Theory of Communicative Action required that interchange between system and lifeworld be channeled by system “steering media.” Habermas’s idea of “administrative power” conforms to the conception of a “steering medium,” but “communicative power” does not. How, then, does this communication between system and lifeworld occur? The question is difficult because Habermas’s conceptual explication of “lifeworld,” “system,” and “steering medium” tracks without explicitly revising the accounts given in Theory of Communicative Action.

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4 .2 t h e model of t h e circ u l a t ion of pow er In attempting to situate his discourse theory of democracy socialtheoretically, Habermas introduces what he calls a model of the “constitutionally regulated circulation of power.”21 In some ways, this model can be understood as specifying more precisely Theory of Communicative Action’s account of “interchange” between lifeworld and administrative system. Habermas prefaces his introduction of the model with a quick run-through of the distinction between system and lifeworld,22 and he provides an expanded analysis of the public sphere and “private sphere”—the lifeworld environments to the administrative system in Theory of Communicative Action. But Habermas borrows the model from Bernhard Peters,23 and Peters is critical of the “dualistic conception of system and lifeworld.”24 Unsurprisingly, then, the new model conceives of the “circulation of power” in a way that avoids some of the difficulties of Habermas’s earlier system/ lifeworld model. The changes are necessary, given the objectives Habermas pursues in his work on law and democracy—objectives that are fundamentally different from those pursued in Theory of Communicative Action. Habermas’s earlier system/lifeworld model was the centerpiece of a politically defensive crisis theory. Apparently skeptical about the possibility of genuine democracy, Habermas argued in Theory of Communicative Action that the “colonizing” tendencies of the economic and (especially) administrative systems faced structural limits: limits rooted in the functional necessities of symbolic reproduction. Between Facts and Norms, by contrast, pursues a more “offensive” strategy.25 The “reconstructive” part of Habermas’s discourse theory of law and democracy investigates not so much the functional necessities of “symbolic reproduction” as the explicitly normative principles of the constitutional state. The leading principle, according to Habermas, is that the state’s exercise of “administrative power” must be linked to citizens’ articulation of communicative power in the political public sphere. And thus, rather than see the role of the political public sphere as the production of only “mass loyalty”—the picture developed in Theory of Communicative Action’s system/lifeworld interchange model— Habermas now sees the political public sphere as normatively influencing the course of official decision and as productive of law. To be sure, the point of the “communication theory of society” is to discover the “inertial moments” that resist the realization of democratic ideals.26 But the emphatically prodemocratic thrust of Habermas’s project makes the old system/lifeworld model inappropriate.



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The idea of the new “circulation of power” model, then, is to show more precisely how citizens’ communicative power may be converted into administrative power—power as a steering medium—and how the latter can be checked by the former. At the very outset, four changes from the older system/lifeworld model are apparent (the significance of which will be discussed below). First, Habermas now refers to “the political system” rather than to “the administrative system.” Second, only the political system, and not the economic system, appears in the model. (To be sure, Theory of Communicative Action is not exactly exemplary in its analysis of the economic system,27 but it does include that system in the model.) Third, Habermas presents the political system not as a single administrative apparatus but as internally differentiated into regions of “center” (or “core”), “inner periphery,” and “outer periphery.”28 And fourth, in his account of these regions, Habermas refers much more forthrightly to political institutions and associations—such as legislatures, courts, and political parties—in partial replacement of more shadowy references to anonymous workings of the system. Habermas’s model is easiest to understand if we approach it first through the center/periphery map.

4.2.1 The Political System’s Center The “center” or “core area” of the political system, Habermas explains, is “formed by the familiar complexes of administration.” Each of the three branches of government is represented here. Habermas mentions “the incumbent Government,” by which presumably he means the executive branch. Included, also, are “parliamentary bodies,” understood in their connection with a party system that competes for election. More generally, Habermas refers here to “democratic opinion- and will-formation,” which “includes” parliaments, elections, and party competition. Finally, Habermas includes the “judicial system” in the center or “core area” of the political system.29 Inclusion of the executive branch is unsurprising. Habermas’s account of the other two branches, however, requires comment. First, Habermas’s location of “democratic opinion- and will-formation,” through processes of election and legislation, marks a significant change in his conception of “systems.” One prominent characteristic of “systems,” as defined in Theory of Communicative Action, was that both their internal operations and their relations to their environments are steered by “media” that circumvent the

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process of reaching understanding through communicative action. For the administrative system (now known as the political system), the medium was power, understood as command. But Habermas now speaks of “democratic opinion- and will-formation” in the “core area” of the political system. The political system’s internal operations, then, seem to be communicatively organized and dependent on the rational discourse Habermas connects to communicative action. Already at this point, then, the distinction between system and lifeworld is attenuated in the new model. The second aspect of the political system’s center that requires comment is Habermas’s decision to place the judicial system there rather than in a separate legal system. In some respects, this choice is not surprising. Courts are (at least typically) politically organized and staffed by state personnel; further, as Habermas notes in his general account of law, their decisions presuppose and rely on political enforcement. Moreover, Habermas’s earlier account of the lifeworld’s “colonization” saw family and juvenile courts as part of the administrative system.30 But Habermas since has repudiated the idea of “law as medium” that underwrote his treatment of family and juvenile courts as part of the welfare-state bureaucracy. And various passages in Between Facts and Norms affirmatively suggest a distinction between legal and political systems. Some of these passages seem to use the term legal system to refer to what Habermas’s model calls “the political system.”31 But others seem to point more strongly toward positing the legal system as a distinct system— though one linked to the operations of the political system. In some of these passages, Habermas flirts with the ideas of Niklas Luhmann, the late (but still preeminent) systems theorist. This flirtation is surprising, given Habermas’s frequent polemics, in Between Facts and Norms and elsewhere, against Luhmann’s work. As Habermas notes, Luhmann’s brand of systems theory—the theory of “autopoietic” systems32—relies on the idea of a system’s “code” as the basis for the system’s identity and unity (and thus also the system’s distinction from its environment).33 A code, for Luhmann, is a binary distinction basic to the system’s communications— for the legal system, the distinction between legal and illegal. Habermas picks up this idea of the binary legal code,34 and he suggests also that the political system has its own binary code. While Habermas, like Luhmann, does not make entirely clear what this latter binary code is, it appears to be the distinction between command and obedience.35 Habermas’s positing of separate system codes would seem to commit him to a distinction between the legal and political systems.36



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Despite Habermas’s flirtation with the idea of binary codes, however, he seems content to understand the judicial system as part of a more comprehensive political system.37 One reason, likely, is that he still sees “systems” as defined through steering media, not so much through binary codes. And law, he has now decided, is not a steering medium. Further, Habermas’s discourse theory of law accounts for the distinctiveness of judicial communication—its differences from legislative or administrative communication—through the notion of separation of powers. The different branches of government represented in the political system’s “center,” Habermas claims, have access to different kinds of reasons and are permitted different sorts of discourse.38 Habermas, then, can place the judicial system within a more general “political system” without denying the differences that make argumentation in the judicial system distinctive. That allows him to avoid a reduction of “law”—judicial discourse—to (ordinary or party) “politics.” Finally—and this is a point yet to be developed— Habermas’s “circulation of power” model distinguishes between center and periphery according to the degree of formal organization and institutionalization. The “center” of the political system is formally organized, that is, created by positive law, and whether one looks at courts, legislatures or agencies, the center is the locus of official decision. Habermas identifies the periphery, by contrast, in terms of informal organization and separation from official channels of decision.

4.2.2 The Political System’s Periphery Beyond the political system’s “center” of decision-making institutions, Habermas identifies an “inner periphery” and an “outer periphery.” The inner periphery, he suggests, includes institutions with “rights of selfgovernance or . . . other kinds of oversight and lawmaking functions delegated by the state” (for example, “universities, public insurance systems, professional agencies and associations, charitable organizations, foundations, etc.”).39 This assemblage of groups is an odd collection. Public insurance systems would seem more naturally to fit into the state administration, particularly given Habermas’s prior treatment of welfare bureaucracies as power-wielding, “lifeworld-colonizing” arms of the state apparatus. Further, whether universities should be seen as exercising powers “delegated by the state” would seem to depend on whether they are public or private institutions. Presumably, however, Habermas is thinking of, for example, the extensive government sponsorship of university-based

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scientific research, especially in the medical and defense sectors. And so even private universities might be seen as quasi-state institutions, albeit generally not ones that make official governmental decisions. Professional associations—such as, in this country, the AMA and ABA—perform regulatory functions that might well have been considered the province of official government institutions. While “charitable associations and foundations” fit less naturally into this picture, the “inner periphery” thus seems to consist mostly in institutions and associations that perform quasi-state functions without exercising official state decision-making power. Habermas gives much more attention to the political system’s “outer periphery.” In classifying the organizations and associations one finds there, Habermas distinguishes between “customers” and “suppliers.” By “customers,” Habermas means various organizations, such as “business associations, labor unions, [and] interest groups,” which are linked in a network of ongoing communication with “public agencies.”40 Habermas seems to see these “customers” as representatives, of a sort, of the economic system.41 With respect to the political system, their activity seems to consist largely in bargaining on behalf of their respective constituencies.42 They are “customers” in the sense that their encounters with the political system are directed primarily toward obtaining governmental largesse and favors for their clients. The “suppliers” are driven less by directly economic interests and more by ideological objectives. They are “associations, and organizations, that, before parliaments and through the courts, give voice to social problems, make broad demands, articulate public interests or needs, and thus attempt to influence the political process more from normative points of view than from the standpoint of particular interests.” These groups include: (1) “organizations representing clearly defined group interests”; (2) associations with “goals recognizably defined by party politics”; (3) “cultural establishments” (such as “academics, writers’ associations, and ‘radical professionals’ ”); and (4) “public-interest groups” (for example, environmentalist groups and animal-protection associations, but also “churches or charitable organizations”).43 As Habermas is aware, the distinction between customers and suppliers is not entirely easy to draw.44 Labor unions and industry associations, for example, seem to be both customers and suppliers: They seek both to lobby official decision makers for economically favorable outcomes and also to participate more generally in public debate. But in any event, to the extent that a group counts as “supplier,” it appears in three places in



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Habermas’s topography of the “circulation of power.” Besides populating the political system’s outer periphery, “suppliers” are key players in the public sphere of political discussion, and they help constitute the network of voluntary associations that Habermas calls “civil society.”

4.2.3 The Public Sphere and Civil Society The public sphere, Habermas tells us, is not a system, institution, organization, or “framework of norms.” His positive descriptions tend to be highly metaphorical—and the metaphors sometimes mix indiscriminately. It is a “network” of communications with respect to public issues. The political public sphere is a “sounding board for problems,” a “warning system with sensors that, though unspecialized, are sensitive throughout society.” The political public sphere “filter[s],” “synthesize[s],” and “bundle[s]” “streams of communication.” Reviewing the usual metaphors of space and stage and forum—“architectural metaphors of structured spaces”— Habermas argues that they do not adequately convey the nature of the political public sphere. While these metaphors may describe limited publics, the political public sphere is detached from physical presence and simple interactions; it becomes “extend[ed] to the virtual presence of scattered readers, listeners, or viewers linked by public media.”45 And as detached from concrete presences and interactions, the political public sphere is, in Habermas’s formulation, a circuit of “as it were, ‘subjectless’ forms of communication”46—or, in an alternative formulation, an “anonymous circuit[] of communication.”47 This array of metaphors may be daunting,48 but what Habermas is trying to do with them can be made reasonably clear. One aim is to characterize the relation between the public sphere and the political system’s center—the sphere of official decision making (and lawmaking in particular). The other is to account for the relation between the political public sphere and the “private sphere” of the lifeworld. Consider, first, the relation between political public sphere and political center. The political public sphere is the source of citizens’ “communicative power”—the power of common convictions that arises through rational debate. Deliberative decision making in the political system’s “center” is another locus of communicative power. The idea of the constitutional state, Habermas has argued, is that citizens’ communicative power must influence the communicative power developed in officials’ deliberations. Or, to use another of Habermas’s favorite metaphors: Citizens’ communicative

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power must be able to pass through the “sluice” of official deliberative procedures and “penetrate[] the constitutionally organized political system.”49 Habermas’s reconstruction of the constitutional state notes that democracy cannot, under modern conditions, mean the assembly of all the citizens.50 And thus the political public sphere, for Habermas, is not a physical space in which the citizenry as a whole is present and interacts. Instead, the political public sphere relies on mass-communications media that establish “virtual” presence—communication among those who never will meet face-to-face and know nothing or very little of one another’s lives. That is the meaning of his emphasis on “anonymous” and “subjectless circuits of communication.” The various contributions in these circuits of opinion influence official decision making only if they are “bundled” to form what Habermas calls “public opinion.” Habermas resists the usual idea that public opinion is the statistical average of what people think. Nor does he simply weight the average to reflect the likelihood of voting, the degree of influence of the respective opinion holders, or anything of the sort. Oddly—because his concern here seems to be mainly whether public opinion will influence decision making in the political system’s center—Habermas insists on a qualitative appraisal of public opinion. And so opinion polls, in Habermas’s view, reflect public opinion “only if they have been preceded by a focused public debate and a corresponding opinion-formation in a mobilized public sphere.” Relevant factors here include the “discursive level of opinion-formation” and its inclusiveness—or, more generally, the “procedural properties of its process of generation.”51 As a descriptive definition of public opinion, or even the influence of public opinion, this conception seems inapt. But it may be more plausible if understood as a “basis for measuring the legitimacy of the influence that public opinion has on the political system.”52 Viewed in this way, Habermas is suggesting that public discussion has an appropriate democratic influence only to the extent that the conditions of public debate meet certain discursive criteria. I will discuss below Habermas’s account of the obstacles that may prevent the public sphere from producing the requisite “influence” on the political system’s center. The second aim of Habermas’s account of the public sphere—captured in the “sounding board” and “sensors” metaphor—is to explain how problems and issues make it onto the agenda of public discussion. The connection is through the lifeworld sphere he calls “civil society.”



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The appearance of civil society in Habermas’s model is connected with the shift in his theoretical and political objectives since Theory of Communicative Action.53 The place that civil society now occupies is the lifeworld’s “private sphere.”54 In Theory of Communicative Action, Habermas saw the private sphere as centered around the nuclear family—or, from the perspective of the economic system to which it was “lifeworld environment,” centered around the “private household.” The roles of “employee” and “consumer,” Habermas said, were the relevant roles for money-steered interchange between the economic system and private sphere. Habermas did not consider in Theory of Communicative Action the relation between the private sphere and the political system.55 In Between Facts and Norms, by contrast, Habermas is interested precisely in the relation between private sphere and the political system. Habermas’s focus on “civil society,” rather than the employee and consumer roles, reflects this new interest. What he is investigating is the political significance of the private sphere. How, he asks, is it related to the public sphere of political discussion, and how in turn is it related to formal political decision making? Habermas’s understanding of “civil society” is consistent with that term’s common usage in recent political discussion. His most usual definition presents civil society as a “network of voluntary associations,”56 although he includes also family relations.57 The voluntary associations that constitute civil society, Habermas emphasizes, are “noneconomic,”58 “informal,”59 and generally egalitarian.60 Civil society, so conceived, is thus distinct from both the economic and political systems.61 Habermas makes clear that civil society is a “lifeworld” sphere.62 Civil society’s “lifeworld” location is the source of its strategic role in Habermas’s theory. The problems, concerns, and issues of everyday life, he suggests, are discussed in civil-social associations before they become items of public-sphere discussion.63 Participants in public-sphere discussion are, Habermas says, “recruited” from civil society’s voluntary associations.64 And so these associations may “distill and transmit” responses to lifeworld problems “in amplified form to the public sphere.”65 Civil society, to the extent that it is autonomous from both the state and political systems, is in this way a source of “counterknowledge”—counter, that is, to official conceptions in the political system’s formal decision-making institutions.66 Together, then, civil society and the political public sphere establish a link between system and lifeworld. This link, on Habermas’s view, is what

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makes genuine democracy possible. At the same time, Habermas emphasizes a number of preconditions.

4.2.4 The Circulation of Power and the Possibility of Democracy One set of preconditions for democracy, according to Habermas, has to do with the “culture” and “personality” components of the lifeworld—not just the “society” component in which voluntary associations are rooted. Democracy, he claims, presupposes “a liberal political culture supported by corresponding patterns of political socialization.”67 In other words, the society in question must have a tradition of inclusive and broad political participation, and individuals must be both able and disposed to take advantage of the possibilities that the culture presents. “Otherwise,” Habermas suggests at one point, doubtless with an eye on post–Cold War Eastern Europe and Russia, “populist movements arise that blindly defend the frozen traditions of a lifeworld endangered by capitalist modernization.”68 More generally: Public debate otherwise would cordon off some topics from rational discussion, or it would fail to include all whose interests are potentially affected, or both. And that would offend the principle of democracy, as Habermas understands it. Second, both civil society and the political public sphere must be legally protected to ensure their autonomy. Basic rights of free speech, press, association, and assembly are necessary not just for the political public sphere but for civil society as well. In fact, Habermas claims, civil society is constituted through these basic rights, as well as through legal protections of “privacy”—where this last is understood as the protection of autonomous choice in matters of lifestyle and judgment. These legal protections, if effective, safeguard both the political public sphere and civil society from state domination.69 Third, both civil society and the political public sphere must be insulated also from the effects of unequal “social power”—that is, unequal “possibilities . . . in social relationships to assert [one’s] own will and interests, even against the opposition of others.”70 While the power to assert one’s will and interests is essential to political participation,71 gross inequalities in the distribution of social power mean that some may “influence the political process in such a way that their interests acquire a priority not in accord with equal civil rights.” Habermas suggests that the egalitarian structures of voluntary associations may, to some extent, “absorb and neutralize” differences in social power. But, at the same time,



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the democratic potential of civil society itself depends on a more or less equal distribution of power.72 And so does the democratic potential of the political public sphere.73 Of course the problem is that the redistribution of unequal social power is extraordinarily unlikely if that very inequality renders both civil society and the political public sphere democratically ineffective. Perhaps in confession of the difficulty of this dilemma, Habermas suggests at one point that genuine democracy would be possible “only in an egalitarian public of citizens that has emerged from the confines of class and thrown off the millennia-old shackles of social stratification and exploitation.”74 That, however, does not seem to be our situation. Fourth, a precondition for modern democracy is an appropriate role for the mass communications media. As Habermas recognizes, the modern political public sphere requires these media, if political communication and debate is to extend beyond simple (and generally ineffective) face-toface interaction. But at the same time, the expense of many forms of communication, together with dominance of print and television by powerful organizations, means a centralization of control over the selection of “topics, contributions, and authors into the mass-media-dominated public sphere.” Habermas notes also the economic incentives toward dumbingdown of political reporting and commentary (or, for that matter, minimizing it in favor of purer forms of entertainment).75 Habermas noted these dangers in 1992, and so he was unable to consider at that time whether the Internet could, in some measure, counter the trends toward centralized control. (His present assessment, discussed in Chapter Five, is less positive than one might expect.) The diagnosis he presents in Between Facts and Norms is threefold. First, he notes studies that find audiences not so passive as the sharpest media critics believe. Second, he presents a normative argument that “the mass media ought to understand themselves as the mandatary of an enlightened public whose willingness to learn and capacity for criticism they at once presuppose, demand, and reinforce.” Third, he suggests that government regulate the mass media to require broader access and presentation of noncentrist points of view.76 The obvious difficulty with this last idea—and one that Habermas acknowledges—is that using state administrative power to select among speakers raises substantial free-speech concerns. Habermas notes, also, an additional obstacle to genuine democracy: the tendency of governmental institutions in the political system’s center to short-circuit the “official” or “constitutional” circulation of power. The “official” pattern of circulation, reconstructed in Habermas’s discourse

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theory of democracy, prescribes that legislative initiatives are to come from the citizens’ exercise of “communicative power.” Set out socialtheoretically, in terms of Habermas’s center/periphery model of the political system, communicative power, emerging in the public sphere as a response to the impulses from civil society, must flow through the “sluices of democratic and constitutional procedures situated at the entrance to the parliamentary complex.”77 But in practice, Habermas acknowledges, much “normal business” crosscuts this official flow. And this, he says, is unavoidable. Most operations of the core “proceed according to routines” that are not necessarily linked to popular initiatives: From a normative standpoint, the only decisive question concerns which power constellations these patterns reflect and how the latter can be changed. This in turn depends on whether the settled routines remain open to renovative impulses from the periphery. In cases of conflict, that is, processing matters according to the usual conventions is eclipsed by another mode of operation.

Habermas calls this other mode “problematization.” Here “the attention span of the citizenry enlarges,” and “the pressure of public opinion” compels the core institutions to switch over to “constitutional channels for the circulation of power.”78 Habermas is not altogether optimistic about the possibilities here. “Under certain circumstances,” he says, “civil society can acquire influence in the public sphere, have an effect on the parliamentary complex (and the courts) through its own public opinions, and compel the political system to switch over to the official circulation of power.”79 But in addition to the obstacles noted above—the effects of unequal social power and the normalizing power of the mass media—Habermas acknowledges that political parties and leaders, too, have ways of managing public opinion.80 While political parties are essential to the operation of the political system’s center,81 their function of recruiting and disciplining officeholders may well interfere with the development of sufficiently discursive public debate.82 Habermas does note, however, that many of the important movements in the last two decades—antinuclear movements, environmental movements, feminism, and multiculturalism, to name a few of his examples— have originated in civil society, eventually making it onto the “agenda” of the public sphere. And only much later, after a long period of public opinion formation, did they gain official attention.83 Civil society, then, has for Habermas an innovating role in the democratic lawmaking process.



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4 .3 t h e s t a t us of t h e s ys t e m /l i fe wor l d model With the preceding sketch of Habermas’s “circulation of power” model in mind, the question becomes: What has happened to the system/lifeworld model that Habermas defended earlier? As I showed in section 4.1, Between Facts and Norms officially presents the concepts of system and lifeworld more or less as Habermas developed them, with considerable fanfare, in Theory of Communicative Action. But immediately after concluding one of these official presentations,84 Habermas presents the “circulation of power” model, and that model on its face expresses differences from Habermas’s earlier system/lifeworld theory. In this part of my argument, I will be considering whether or not Habermas’s new model effectively abandons many of the central assumptions of the earlier system/lifeworld scheme. I look at this matter as someone who has argued that the original system/lifeworld model is untenable.

4.3.1 Mapping Center/Periphery against System/Lifeworld Habermas’s “circulation of power” model speaks more of the political system’s “center” and “periphery” than it speaks of system and lifeworld. Habermas does not make clear how the center/periphery schema maps out against the distinction between system and lifeworld. Does the periphery— especially the “outer periphery”—belong to system or lifeworld? And what effect does the notion of “periphery” have? If, as it seems, the concept of “periphery” blurs the boundary between system and lifeworld, then does the distinction between system and lifeworld still have significance? The changes that the notion of “periphery” might effect are easiest to see when one examines the position the two models assign to the political public sphere. Habermas’s earlier system/lifeworld model made clear that the political public sphere belongs to the “societal component” of the lifeworld, as the administrative system’s environment. The public sphere was not “in” the administrative system; instead, it was related externally to that system through media-steered, input/output interchange relations. The newer model, however, speaks of “the political system” rather than the administrative system, and it presents the relevant system as differentiated into center and periphery. One would think that the “center” of the political system might be the same as the old, undifferentiated administrative system. Not so. While “the incumbent Government” seems

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to correspond at least roughly to the old administrative system, Habermas includes at the political system’s center legislative bodies and courts— institutions not clearly accounted for in the old system/lifeworld model and difficult (as Habermas now acknowledges) to see entirely in terms of administrative power (or the steering medium of “power as command”). Even the “center” of the new “political” system seems more expansive than the old administrative system, and Habermas makes clear that its workings cannot be accounted for solely in terms of “power as command.” Introduction of the political system’s “periphery” complicates matters further. The term periphery is ambiguous. Does it include the public sphere? Civil society? Does it refer to the outer reaches of the political system—distant regions that still are within the system’s boundaries? Or does it refer instead only to those “peripheral” regions that are beyond the system’s perimeter? Much of Habermas’s initial account of the periphery is a list and description of the various players that populate that region—the quasi-state organizations and associations of the “inner periphery,” and the “customers” and “suppliers” of the outer periphery.85 The public sphere is emphatically not an organization, association, or system. For that reason, it is difficult to place on the system’s “periphery.” Habermas, however, states that the political public sphere is the political system’s “real periphery.”86 Other statements are to similar effect.87 Still other statements are more equivocal,88 but on balance, Habermas seems to suggest that the political system’s “periphery” includes the political public sphere. In fact, Habermas suggests that the political system’s periphery includes also the sphere he calls “civil society.”89 That leaves the question whether the periphery is part of the political system—that is, within the system’s boundaries—or whether, instead, it is a region “peripheral” to the system in the sense of lying beyond the system’s outer limit. Habermas cannot avoid the question because the system/ lifeworld distinction, even as formulated in Between Facts and Norms, sees systems as differentiated and separate from their environments. Systems theory depends on the distinction between system and environment. And so if systems-theoretical concepts still have meaning to Habermas—as he says they do—then he has to answer the “boundary” question. Habermas does not make his answer altogether explicit, but if he is retaining his system/lifeworld distinction, the answer has to be that the periphery lies outside the political system’s boundary.90 The political public sphere, he says, is not organized as a system.91 And further, Habermas



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makes clear that “civil society” belongs to the lifeworld—with the usual specific address being the lifeworld’s “societal component.” 92 Thus the periphery, conceived as including both the political public sphere and civil society, must not be within the political system’s boundaries. But while this answer resolves the “mapping” issue, it also raises further problems. One difficulty is at least terminological and possibly conceptual. If the “periphery” is not properly part of the political system, then why does Habermas describe the political system as differentiated into center and periphery? Instead of referring to governmental decision making institutions as the political system’s “center,” it would be enough to refer to them as, simply, “the political system.” Only if the periphery were part of the system would we need the distinction between center and periphery. Otherwise, we should speak more simply of system and environment, or system and not-system. Two other difficulties will be the subject of separate sections. First, if the periphery is beyond the political system’s boundaries—lying in the domain Habermas calls the lifeworld—then Habermas must account for the interchange between system and lifeworld. The account he has given in Between Facts and Norms is full of terms like “influence,” “communication of normative messages,” and the like. These notions are impossible to square with the austere “media theory” announced in Theory of Communicative Action. Habermas’s “circulation of power” model, I will suggest, confirms the criticisms I made of the earlier “interchange model.” A second difficulty is that the reasons why the public sphere and civil society cannot be part of the political system—why they must be assigned to the lifeworld—also suggest that the center is not a “system,” either. Very little of the Parsons-inspired systems theory actually animates Habermas’s current work—notwithstanding his formal allegiance to the earlier “systems” concept.

4.3.2 The Two Models and Interchange among Social Spheres The model of system/lifeworld interchange presented in Theory of Communicative Action is a systems-theoretical model. According to Habermas’s critical appropriation of Parsons’s media theory, interchange between systems operates through the media proper to the related systems. The media proper to the economic and political systems, Habermas claimed, are money and political power. Habermas recognizes only money and power as “steering media.” As I noted in Chapter One, Habermas specifically

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rejects Parsons’s suggestions that “influence” and “value-commitment” qualify as media analogous to money. And as I have argued, that makes the model of system/lifeworld interchange asymmetric. The lifeworld spheres Habermas presents as operating in media-controlled interchange with the two systems—the public and private sphere—have no media of their own to contribute to the interchange. And so their “inputs” into the two systems must be assimilated to the media of money and power. The irony of this conceptual strategy is that, while designed to preserve the integrity of the lifeworld in all its normative richness, the strategy requires Habermas to conclude that the public sphere contributes only “taxes” and “mass loyalty” to the administrative system, in exchange for “organizational performances” and “binding decisions.” The system-theoretical frame of Habermas’s interchange model, together with the assumptions he makes about the nature of interchange and steering media, leads him in Theory of Communicative Action to a hollowed-out conception of democracy’s workings. As I have argued, Habermas likely chose this conceptual strategy to make his argument normatively minimalist. The argument of Theory of Communicative Action is not a normative exhortation for more democracy or greater economic justice. While Habermas’s account of the lifeworld’s “rationalization” is designed to demonstrate the unexhausted “rational potential” in modern societies—the only selective and partial realization of “communicative rationality”—his diagnosis of modern “social pathologies” takes the form of a crisis theory. Independent of the political will to resist the “colonizing” tendencies of economic and bureaucratic systems, he argues, those tendencies face unavoidable limits—limits rooted in the functional necessity of “symbolically reproducing” the lifeworld. The focus of Habermas’s system/lifeworld model, then, was on the effects that systems have on the lifeworld, not so much the influence that the lifeworld might have on systems. Between Facts and Norms is a very different project. The argument is much more strongly normative. Legal norms are legitimate, he claims, only if they conform to the principle of democracy. And that means that they must be able to “meet with the . . . assent of all citizens in a discursive process of legislation that in turn has been legally constituted” 93 (though, with due regard for fair compromise). Habermas’s recourse to social theory is designed as a “translation” of the strongly normative principles of the discourse theory of democracy. Accordingly, the “circulation of power” model focuses on the conditions necessary for the production of legitimate law: (1) A “vibrant” civil society 94 must transmit “impulses” to the political



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public sphere that express unresolved social problems that are susceptible of political solution; (2) a “robust” 95 and “unsubverted” 96 political public sphere must discursively process these impulses to generate “public opinion”; (3) this public opinion must “influence” 97 the deliberations of official decision makers (primarily legislative bodies) in the political system’s center; and (4) the administration’s exercise of “administrative power” must be bound by the normative premises of legal rules and principles whose existence ultimately depends on citizens’ “jurisgenerative” communicative power. The focus, then, is on how lifeworld structures peripheral to the political system—civil society and the public sphere—may “influence” the operation of the political system that is differentiated from the lifeworld.98 Notice the term influence. Habermas’s argument in Between Facts and Norms uses the idea of “influence” to characterize the relation between spheres constituted through communicative action—civil society and public sphere—and the “system” that, Habermas still claims, is qua system organized around a “steering medium.” No longer must system and lifeworld be related only through money and power. Instead, the “input” from lifeworld to system operates through “influence,” and Theory of Communicative Action specifically concludes that “influence” is not the name of a steering medium.99 Without acknowledging the point, Habermas effectively has abandoned the premises of his systems-theoretical conception of “interchange” between system and lifeworld. My argument does not depend on Habermas’s having chosen the term influence to describe the effect of the political system’s periphery (read: lifeworld) on the system’s center. The very premise of Habermas’s project is to account for how informally organized spheres, constituted by and centered around communicative action, may send “normatively substantive messages” to spheres that, supposedly, are differentiated as “systems” that operate and communicate only through steering media. This conception is impossible to reconcile with the media theory that Habermas embraced in Theory of Communicative Action.

4.3.3 “System” Revisited Habermas’s media theory was supposed to account not just for the relations among systems but for the “internal” operations of systems as well. Here, too, the concept of “steering medium” is central for Habermas. A defining characteristic of a steering medium is that it allows calculating, strategic actors to circumvent the process of reaching understanding over

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contested validity claims. Habermas in effect defines “systems” as spheres of action in which steering media, not linguistic consensus, play the central coordinating role. Habermas refers to systems as “media-steered,” as opposed to “communicatively organized.” A second feature of Theory of Communicative Action’s “system” conception is the notion of formal organization. By “formally organized,” Habermas means “created by positive law.” Habermas makes clear, first, that the economic and administrative systems as a whole are created by positive law: The media of money and power, he says, must be “legally institutionalized” for the media to operate as stable systems media. And further, Habermas extends the notion of formal organization to include the entities and associations that populate the economic and administrative systems. Here he is thinking of bureaucratic organizations—both business firms and government agencies—that are structured hierarchically and have defined expectations for membership that are enforced through command. Combining these two features, I noted in Chapter One, Theory of Communicative Action develops a hyperbolic conception of these systems as “norm-free structures” in which “the lifeworld”—understood as the cultural tradition, social norms, and personal competences and dispositions— is irrelevant for the coordination of action. I argued strenuously against this conception. In Between Facts and Norms, Habermas’s explications of the “systems” concept do not explicitly revise his earlier account. While he does not repeat the more hyperbolic claims about “norm-free structures,” he does make clear that a defining characteristic of a “system,” and what renders it “independent” from the lifeworld, is its development of a steering medium that allows users to circumvent the process of communicative agreement. That understanding of a “system” was what made clear—despite initial ambiguity—that the “peripheral” spheres of civil society and the public sphere could not be systems or part of the political system proper. They have no steering media of their own, operating instead through “influence”—which, again, is not a steering medium on Habermas’s view. They reproduce themselves through communicative action and are “communicatively organized,” which for Habermas indicates “lifeworld” rather than “system” status. But now consider Habermas’s account of the political system’s center. Legislatures, he claims, operate deliberatively, and while they have special procedures that structure and (because of time constraints) sometimes terminate discourse,100 they do not operate simply through the power of



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command. Instead, they are part of the process of “democratic opinionand will-formation.”101 Similarly, Habermas understands the adjudicative structure as consistent with the “discourse principle,” even if time and relevance constraints limit the scope of available arguments and even if the participating lawyers—though not the judge—present arguments strategically.102 Further, even the “administration” operates through discourse as well as through command.103 Communicative action and discourse, then, are not peculiar to the lifeworld. Habermas’s expansion of the idea of political power to include communicative as well as administrative power, and his ready admission that communicative power is generated through discourse in the political system’s center, suggest a move away from the earlier conception of “systems.” The notion of a “steering medium”—power as command, in the case of the political system—is too crude a tool for Habermas’s theory of democracy. And so although his official explications of the “system” concept still insist that systems are differentiated out around steering media, Habermas’s actual analysis of the political system is more sophisticated. And it has to be, given Habermas’s objectives in Between Facts and Norms. Here, as with the unacknowledged revisions of the “interchange” concept, the developments seem to me clear improvements. But in what sense is the political system now a “system”? And, with respect to the notion of interchange, are we limited to the “electronics metaphors”104 of “impulse,” “amplifier,” “transformer,” along with the water metaphor of “sluices”? Is Habermas’s mixing of these metaphors the best theoretical (let alone literary) strategy? In section 4.4, I will suggest that a better conception of social “systems,” and a better account of the relations among social spheres, might be available through a selective appropriation of more recent systems theory. I have in mind here the “autopoietic” theory of the late Niklas Luhmann, Habermas’s longtime partner in debate and probably Habermas’s equal in eminence among continental social theorists. As I have noted in passing already, Habermas’s encounters with Luhmann’s “autopoietic” theory are almost entirely polemical, and his interpretation of autopoietic theory is, for the most part, a caricature. But oddly, at the same time that Habermas blisters the idea of autopoiesis, he states offhandedly that the political and legal systems are “autopoietic.”105 Habermas appropriates what is in my judgment a less attractive idea in Luhmann’s work—the idea of the binary code, already discussed briefly and to be discussed somewhat more expansively in the following pages.106 A more accurate reading of Luhmann’s

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work, and a more judicious borrowing from it, could rehabilitate Habermas’s collapsed notion of social systems.

4.3.4 “Lifeworld” Revisited I have described the successive shifts in Habermas’s notion of the lifeworld: from (1) the phenomenological concept of lifeworld as the unproblematic, naively relied on set of resources on which social interaction draws; to (2) the idea that society as a whole can be conceived as “lifeworld,” with the “structural components” of culture, society, and personality; to (3) the notion of the lifeworld as a separate (because communicatively organized) social sphere, involved in interchange with the systemically integrated economy and administration. These shifts are particularly apparent in Theory and Communicative Action, but they appear also in the official lifeworld-explicating passages of Between Facts and Norms. In my view, both (2) and (3) in the preceding paragraph are problematic in principle, and neither idea fits well with the line of argument followed in Between Facts and Norms. Consider, first, the “components” idea. This idea begins to emerge in Theory of Communicative Action when Habermas is criticizing, from within, the phenomenological conception of the lifeworld. If we understand the lifeworld as the background of social interaction, and as the stock of resources on which actors draw, then we see that actors rely on culturally transmitted knowledge, group memberships, and personal identities (including skills, dispositions, and motivations), not just the cultural “stock of knowledge” that Schutz emphasized. As I pointed out, and as Habermas acknowledges, this list corresponds closely to Parsons’s culture/ society/personality schema. These resources of action, however, become lifeworld “components” only when Habermas makes a methodological shift. He is interested, he says, in developing the “lifeworld” concept not just as a means for analyzing this or that particular context of action, or even the problematic of social action in general. Instead, his focus is on the lifeworld “as a whole,” and in particular, how the lifeworld reproduces itself through time.107 Not social action so much as society becomes his object of investigation. And at this point, we have the idea that society as a whole can be seen as lifeworld. Habermas quickly converts the resources of “action”—“culture,” “society,” and “personality”—into “structural components of the lifeworld,” or rather, structural components of society seen as lifeworld.



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This last move is puzzling. Why would we necessarily think that society has “components,” if that term has the ordinary meaning of “parts”? And why would we assume that culture, society, and personality are the appropriate parts? As Habermas has explained, his interest is in accounting for how societies reproduce themselves through time. Certainly he is right that a society’s continued existence—as recognizably the same society—depends on its ability to maintain, even through change, a cultural tradition. Clearly, also, a society needs to be able to maintain (again, even through change) its basic social institutions, and equally clearly, it needs to transmit appropriate skills, dispositions, and motivations to its members. What Habermas calls cultural reproduction, social integration, and socialization all seem to be necessary functions for a society’s reproduction. But to say that is not to commit ourselves to the idea that the society has “components” and that the components are culture, society, and personality. We can speak of reproductive functions without localizing them in a particular “component” of society. Nor is the “component” idea necessary for Habermas’s ultimate use of the “symbolic reproduction” schema—his account of systems’ tendencies to “colonize” the lifeworld and thus to impair the symbolic reproductive functions. Here, too, we can speak of functions without localizing them in a “component.” Similar arguments apply to Habermas’s use of the “components” idea to organize and reformulate Weber’s theory of “rationalization.” As described in Chapter One, Habermas presents the lifeworld’s rationalization as leading to the differentiation of the various components from one another, and second, to the increased importance of discourse in reproducing each component. But the idea that the “society” component has differentiated from the “culture” component can be expressed more directly: Tradition is less likely to suffice as justification for social institutions or norms. The differentiation of the “personality” component from the “culture” component amounts to the weakening of traditional role limitations that prescribed in advance who would acquire which skills, competences, and dispositions. Habermas’s account of course is more complex than this, but the “component” idea seems to add nothing to the picture. In my view, the “components” idea is not just unnecessary but positively disadvantageous. It suggests that society has parts, and if the firstorder division of lifeworld is into culture, society, and personality, then one naturally wonders where to place more particular social phenomena. The problem, though, is that one-to-one assignment generally is impossible.

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Consider, for example, Habermas’s account of the “anchoring” of systems’ steering media. Money and power, Habermas says repeatedly, must be “anchored in the lifeworld,” by which he means “legally institutionalized.” Money is “anchored” through basic principles of private law (especially property and contract), and power is “anchored” through public (especially constitutional) law. But in what component of the lifeworld? Habermas picks the societal component, on the theory that these basic principles are “institutions,” and he uses the term institutional component as a synonym for “societal component.” To me, it seems odd to describe legal principles as “institutions.” Further, as Habermas points out in Between Facts and Norms, legal principles constitute bodies of knowledge, and so they could be considered part of the “culture” component. Or, insofar as legal principles encourage the development of certain motivations, competences, and dispositions, they could be said to belong to the “personality” component.108 Once one starts elaborating on what it means for a medium to be “legally institutionalized,” it becomes clear that very little is accomplished by selecting a “component” in which the medium is “anchored.” A full explanation of how money and power are legally secured could use the terms culture, society, and personality, but nothing more would be gained by claiming that the medium is “anchored in” “components of the lifeworld” that bear these names. Or (to borrow again Jeffrey Alexander’s illustration109) consider an organization such as a church. Is it located in the cultural component, the societal component, or the socialization component? Pretty clearly it performs all three functions that Habermas attributes to those “components”: It transmits and reproduces a cultural tradition; it integrates the members of the church through shared norms and values and through common experiences; and it socializes the members, encouraging them to develop their personal identities in particular ways. Showing how the church fulfills these reproductive functions would be a significant part of explaining the church’s social significance. But claiming that the church is “in” a “component” called “culture,” “society,” or “personality”—or “in” all three—would add nothing to the explanation. Consider, finally, Habermas’s notions of the political public sphere and civil society. In Theory of Communicative Action, Habermas tried to locate the public sphere within the societal component. But, as he acknowledges in Between Facts and Norms, the public sphere is not an “institution,” “organization,” or “framework of norms.” The public sphere, then, seems difficult to place in the “society” component. Probably for this reason, Between



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Facts and Norms does not specify a lifeworld “component” as the public sphere’s location. Civil society, which receives significant discussion only in Between Facts and Norms, generally is assigned an address in the “society” component. But the network of voluntary associations—more so, even than the particular association of a church—performs the functions of cultural reproduction and socialization that Habermas attributes to the “culture” and “personality” components, not just the “social integration” function he assigns to the “societal” component. All this is to say that it is fruitless to try to place social phenomena in one or the other lifeworld “component.” But Habermas himself seems to understand the component scheme as inviting that exercise. And if the “components” of the lifeworld are not to be understood as containing subparts, then their purpose is unclear. Habermas would do better simply to speak of the reproductive functions—cultural reproduction, social integration, and socialization—and not of the lifeworld “components” to which they ostensibly correspond. This would be consistent with his suggestion in Between Facts and Norms—not always faithfully followed—that “the communicative concept of the lifeworld breaks with the idea of a whole composed of parts.”110 It would be consistent, also, with the approach of his “circulation of power model.” In that model, the elements of his explanation are civil society, the public sphere, and the various official decision-making political institutions. Only as an afterthought does Habermas connect civil society to one of the “components,” and it does not occur to him to find a “component” to house the public sphere. At the beginning of this section I identified as a second target of criticism Habermas’s idea of the lifeworld as a separate sphere of society, differentiated from the economic and administrative systems. This conception is the effect of Habermas’s distinction between system and lifeworld. In Chapter One, I criticized the account of systems’ “uncoupling” from the lifeworld that Habermas gave in Theory of Communicative Action. In that work, Habermas understood “uncoupling” in a radical sense. It meant more than just that new mechanisms of societal integration had developed, allowing action to be coordinated without communicative agreement. Uncoupling meant, also, that the lifeworld’s resources were unnecessary in coordinating media-steered interaction and that the differentiated systems were formally organized, “norm-free” contexts of action. This stylized contrast between the normatively rich lifeworld and the normatively empty systems, I argued, is untenable.

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As I have suggested, Between Facts and Norms tacitly revises the system side of the system/lifeworld distinction. No longer is the political system, at least, “norm free.”111 In fact it is both the recipient of “normatively substantive messages” from the public sphere and also, in legislatures and courts, the transmitter and even generator of communicative power through institutionalized discourse. This revised conception of “system” suggests to me that the system/lifeworld distinction itself is unnecessary. The difference between “system” and “lifeworld”—between political center and periphery—now is not a sharp distinction between the presence and absence of communicative action (or even discourse). Instead, we can speak only of more or less reliance on communicative action versus reliance on command.112 I am not denying all distinctions between the political system, the economic system, and the rest of the social world. The question, however, is how to account for that rest of the social world. I have argued above against conceiving it as divided into the “structural components” of culture, society, and personality. My suggestion now is that the covering term, lifeworld, also should be dropped. My argument is based, in the first instance, on the history of the term lifeworld. As I explained in Chapter One, the term originated in Husserl’s later work to mark a contrast between the world of everyday, pretheoretical, taken-for-granted certainties, on one hand, and the world as understood by “objectifying” sciences, on the other. Schutz continued this focus on the “mundane,” everyday world, as subjectively experienced. Without that focus, and its implied contrast to other ways of apprehending the social world, it would be difficult to see why one would choose the term lifeworld. Indeed, the term lifeworld seems to me linked to a particular methodological approach in the social sciences—one that investigates the ordinary, everyday world and how human beings experience it. This approach can be practiced in any sort of setting. It need not be limited to an especially “informal” or “communicatively organized” setting. One could analyze the “lifeworld” of the New York diamond business, or a Mafia family, or floor traders on the New York Stock Exchange, or a conference among social systems theorists. Habermas is right that one would not fully understand the workings of an economy through the “lifeworld” perspective. But at the same time, the “lifeworld” perspective would disclose insights, relevant to the workings of an economy, that would be unavailable to social systems theory, or for that matter economic theory.



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My guess is that the term lifeworld appealed to Habermas because it marked, sharply, the difference between the two theoretical methods he wanted to reconcile and also the difference between the conceptions of social life that those methods disclose. These latter differences were rhetorically important for Habermas’s “colonization” argument in Theory of Communicative Action: The mechanical systems, born of the living lifeworld, turn back on the parent to devour it.113 As I have argued, that version of the system–lifeworld distinction was not defensible, and the story line of Between Facts and Norms requires a different conception: one in which “lifeworld” and “system” do not operate on utterly different premises and principles. The conception of the political system in Between Facts and Norms is not systems-theoretical in any sense that Habermas has introduced and defended, nor is the distinction between the “inside” and the “outside” of the political system dramatically different in the respects Habermas’s distinction deems relevant. The term lifeworld—as a reference to a separate sphere of the social world rather than the name of a socialscientific approach—should in my view be dropped.

4 . 4 au t opoi e t ic t h eory a n d t h e r efor m u l a t ion of h a ber m a s’s soci a l - t h eor e t ic a l model I proceed from the conclusions of the preceding section: (1) Theory of Communicative Action’s system-lifeworld interchange model is untenable, particularly when the objective is to develop a theory of law and democracy; (2) Habermas’s model of the circulation of power is inconsistent with the interchange model, especially in its conception of “systems” and the relation between systems and their environments; and (3) the shift in Habermas’s concept of “system” makes his notion of the lifeworld dispensable. But the collapse of Habermas’s media-theoretical conception of systems raises the question: What exactly is Habermas’s conception of a system? And further, how are systems related to their environments? The first question arises because Habermas’s “circulation of power” model introduces the idea of “the political system” casually. The political system, he says, is differentiated into center and periphery. The characterizations of center and “inner periphery,” however, have the quality of lists rather than concepts. Habermas’s account of the center (or core area) is as follows:

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The three branches of government all are represented here, but not in a parallel way. With the “administration” (Verwaltung), Habermas seems to include all the personnel who operate it (“the incumbent Government,” or Regierung).115 With the judicial system, he seems to mean just the system of courts, not necessarily the judges themselves. For the third branch, one would expect Habermas to say, simply, “legislatures” (or “parliamentary bodies”), or perhaps “legislatures (including the elected representatives).” Instead, he uses a term for a process rather than an institution— “democratic opinion- and will-formation”—and he explains that the process “includes” institutions (“parliamentary bodies”) and two mechanisms or procedures (“political elections, and party competition”). Thus the “center” includes a mix of institutions, personnel, and procedures, all described generally (and misleadingly) as “familiar institutional complexes.” Not only are the items on the list not all of the same type; they do not all have the same function. Legislatures have a lawmaking function. Courts and the administration, Habermas’s “discourse theory” makes clear, have a law-applying function. Nor are all the items on the list official state decision-making entities. Courts and the “administration” are, but “political elections” are decisions, or decision procedures, and selection is made by the people rather than by state officials. Similarly, “party competition” does not name a state decision-making entity. Obviously, such competition is relevant to the course of official decision making— it organizes the electoral process and communication within legislative bodies—but it is not itself a state decision-making institution or procedure. In short, Habermas’s characterization of the political system’s center seems ad hoc—a listing of institutions, personnel, and procedures that bear on official decision making but without a clear concept that adequately connects the items on the list. Perhaps the preceding discussion makes too much of the casual way Habermas first characterizes the political system’s “center.” But even if so, what makes the center, so described, a system? Habermas’s earlier conception of “system” emphasized that systems are characterized by steering media tailored to strategic action, with the mechanism of communicative agreement generally set aside as a basis for coordinating action. While Habermas still recites this official explication of “system,” the political sys-



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tem, for reasons already explained, does not conform to this conception. What, then, makes the political system’s center a “system”? Similar observations apply to Habermas’s account of the periphery. The inner periphery consists in a collection of institutions and associations performing quasi-state functions. There, at least, we have a common theme that connects the items on the list. At the outer periphery, we have first another collection of associations and institutions—“customers” and “suppliers,” who are linked in ongoing communication with state decision-making entities. We have, further, a network of voluntary associations called “civil society.” But the pattern is broken with Habermas’s inclusion of the political public sphere in the outer periphery. That sphere, he says, is a network of communication, or a social space, not an association, institution, or collection of associations and institutions. Habermas, then, has an inconsistent conception of the periphery. It is neither purely a network of communications nor purely a network or collection of associations. Nor are the associations he places at the outer periphery necessarily communicating in the (outer peripheral) public sphere. These associations, he says, are rooted in the “core private structures” of the “lifeworld,” and whether they participate in the political public sphere is contingent.116 The civic-social associations probably are better described, as Habermas sometimes does, as the “social basis” of the communication that occurs in the political public sphere.117 Habermas’s account of the outer periphery faces a second and more serious problem. As I have already noted, Habermas does not make clear whether civil society and the political public sphere, as “peripheral” networks or sites of communication, are inside or outside the system’s borders. I suggested that his theory would require him to place both networks outside the system’s borders, but only because he stated both that the public sphere is not organized as a “system” and that civil society is a “lifeworld” sphere. Once we see that Habermas’s model of the circulation of power undercuts his prior definitions of system and lifeworld, and in the process undermines the distinction between the two, the question is again open. Should the “peripheral” networks of political communication count as “inside” or “outside” the political system? Or should the term political system be taken to include only official decision-making channels (legislatures, courts, agencies, and the like)? Either way, what establishes the system’s boundaries? If we treat the periphery as “outside,” then the system’s boundaries are determined by whether the communication, or the communicating entity, has official decision-making power. If we treat

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the periphery as “inside” the political system, then the system’s boundaries are determined—for the most part—by the character of the communication. (Is it “political” communication or not?) As Habermas notes, Niklas Luhmann’s theory of law as an “autopoietic” system addresses this question of a communicative system’s scope.118 Luhmann’s answer is worth considering to see whether it might provide the beginning for a more rigorous conception of Habermas’s “systems.” Luhmann defines social “systems” as networks of communication. Communications, as the “elements” and “operations” of a system, establish the system’s boundaries. For Luhmann, then, the legal system is the totality of all legal communications. By itself, of course, that does not explain what a “legal communication” is. For that purpose, Luhmann relies on the notion of a system’s code. As already briefly discussed, Luhmann sees a system code as a binary opposition between values—in the case of the legal system, the distinction between legal and illegal (Recht and Unrecht). And so for Luhmann, all communications that invoke the code values “legal” or “illegal” count as operations and elements of the legal system. That means, for example, that the utterance “get off my property,” made by one private citizen to another, would be a communication within the legal system to the extent that it asserts an owner’s legal right to exclude.119 So, too, does the writing of a will or the formation of a contract count as an operation of the legal system. Luhmann thus sees the boundaries of communicative systems expansively. Any communication that invokes the system’s code is an operation of that system. But Luhmann quickly introduces two distinctions that make this conception of the legal system—the totality of all communication that invokes the legal code—more manageable. First, Luhmann distinguishes between communications that are “decisions” and those that are not. By “legal decisions” he means communications that “change the situation of the law.” Court decisions are obvious examples, but the category of decisions includes also “statutes, treaties, administrative acts, wills, land registry entries,” and contracts.120 (Notice that even private persons, according to Luhmann, can make law.121) Second, Luhmann sees the legal system as internally differentiated. The axis of differentiation—as in Habermas’s analysis of the political system—is the distinction between center and periphery. Luhmann—as does Habermas, in those passages of Between Facts and Norms that speak of a separate “legal system”—places communication by and to courts at the legal system’s center.122



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One parallel, then, is that both Luhmann and Habermas place the relevant decision-making institution at the system’s “center,” with systemrelevant communication of other sorts at the periphery. A second parallel is in their respective treatments of the periphery. Habermas, we have seen, emphasizes the role of political and legal communication outside official state decision-making institutions—in the public sphere, and also in civil society. This “informal” communication is important to the system’s selfreproduction, according to Habermas’s model of the circulation of power. Civil society, as a source of “counterknowledge,” may stimulate discussion in the public sphere and generate ideas that, one day, may influence the course of lawmaking or other official decision. For his part, Luhmann emphasizes that the “peripheral” status of communication outside the courts—the most important forms of which are legislation and contract— does not mean that such communication is any less important to the system’s self-reproduction. Instead, the periphery is the source of the system’s “real dynamism.”123 It is the “contact zone[] to other functional systems of society”—much as, for Habermas, the political public sphere is linked to civil society, and civil society is “attuned to how societal problems resonate in the private life spheres.”124 “Peripheral” for both authors thus does not mean unimportant. Instead, it means potential openness to the world beyond the system’s boundaries. Let me return to the two problems I raised with Habermas’s revised model. The first problem was that Habermas lacks a coherent concept of “system” once we reject, as both implausible and inconsistent with his present work, the earlier account with its focus on “steering media.” The second problem concerned the scope of a system’s boundaries. Do they extend beyond the “central” decision-making body to include the “periphery”? One way of reconstructing Habermas’s collapsed “system” concept would be to follow Luhmann. By “system,” we then would mean a network of communication, not (at least not in the first instance) institutions or personnel. The political system then would include all system-relevant communication. For reasons I have explained in prior work (and here relegate to the margins),125 I would not use Luhmann’s idea of the binary code as the means for identifying which communications count as systemrelevant. Instead, I would follow an alternative way Luhmann suggests for identifying a system’s unity: the idea of a “circulating symbol,” or (nonbinary) communicative theme. “Legal validity” was Luhmann’s example of a “circulating symbol,”126 and it seems to me that communication oriented

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toward the theme of legal validity (or invalidity) could be said to be legal communication. With respect to the political system, Habermas emphasizes the centrality of political power, though in more than one sense. Some communication is about the production of legitimate law, a process he describes as the conversion of communicative power into administrative power. Some is about the exercise of administrative power. And some (particularly with respect to elections) is about access to offices with political decisionmaking power. A good criterion for the political system’s communication, then, might be: “communication related to the generation of, exercise of, or access to political power,”127 where “political power” could be defined further along the lines of Habermas’s distinction between communicative and administrative power.128 All such communication is within the political system’s boundaries, and other communication is not. This conception of the political system’s boundaries is expansive: It would include political discussion in the political public sphere, to the extent that it relates sufficiently to the theme of political power. Still, following Habermas’s center/periphery scheme, this communication would be “peripheral,” as compared to communication at the system’s decision-making center. On this understanding of the political system, however, most communication in what Habermas calls “civil society” would be beyond the system’s boundaries. Likely, also, civil society would not count as a system—at least not a differentiated system with a unifying communicative theme—because its communication, as Habermas describes it, is too diffuse. In Luhmann’s terms, civil-social communication would be in the political system’s environment. But that raises the question: What is the nature of that system/environment relation? How is communication occurring in the voluntary associations of civil society relevant to the political system as we now are conceiving of it? The same sort of question arises also with respect to the political public sphere. If we see the political system as differentiated into center and periphery, how do the two spheres relate to one another? This question of system/environment relations is the focus of Habermas’s polemics against autopoietic theory. According to Habermas, by denying relations of input and output among the systems it distinguishes,129 autopoietic theory sees each system as “narcissistically marginalized,”130 “autis[tic],”131 and autopoietically “encapsulate[d]” in “its own shell,”132 speaking its own language and only to itself.133 This “mutual indifference” among systems, Habermas says, is inconsistent with “empirically observed



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interdependencies.” And the postulated indifference of systems to their environments makes the democratic process inconceivable. On Luhmann’s premises, says Habermas, “the political process, the public sphere, and political culture present environments whose language the legal system cannot understand.”134 This reading of Luhmann is the occasion for Habermas’s metaphors of law as “hinge” or “transformer” between system and lifeworld. Law, he suggests, operates not as a special “code” or system language, as autopoietic theory would have it. Instead, law is the translator between the ordinary-language communication of the lifeworld and the system-specific codes of the economic and administrative systems. Because law has the capacity to “communicate[] with the steering media of money and administrative power,” Habermas claims, it is capable of sending “normatively substantive messages” from lifeworld to system.135 Habermas’s account of autopoietic theory, however, is a caricature that exaggerates the distance between his views and Luhmann’s. The feature of autopoietic theory Habermas is reacting to is the idea of systems’ “operative closure.” This is the feature that makes systems “autopoietic,” or, self-producing, and in fact it is a tautological consequence of Luhmann’s notion of “system.” If a system’s operations consist in all and only those communications that invoke the system’s code, as Luhmann stipulates, then it is “closed” with respect to those operations. The system’s operations establish the system’s boundaries, and the system is in fact coextensive with its constituent operations.136 What Luhmann is rejecting here is the idea that information can cross system boundaries unproblematically. Communications have systemspecific meaning, he says, and so a communication proper to one system is in the first instance just “noise” to another system.137 Further, to the extent that systems “observe” each other—that is, to the extent that communication in one system refers to another system—the observation is framed by the standards and procedures of the observing system.138 External reference is in that way at the same time self-reference. These are the claims to which Habermas’s polemic attaches. Closure with respect to a code means, for Habermas, that each system is “encapsulated in its own shell,” with its own “semantics” and unintelligible to other systems. The impossibility of direct communication between systems means, for Habermas, that the systems are “autistic,” speaking only to themselves. The connection between self-reference and external reference means, for Habermas, that systems are “narcissistically marginalized.” If

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operative closure, as previously described, were the whole story for autopoietic theory, then Habermas’s reading might be justified. But operative closure is only part of the story. With that idea Luhmann pairs the idea of “cognitive openness.” Systems are operatively closed, in the sense that their operations do not cross system boundaries. By definition, they establish the system’s boundaries, and the system is coextensive with the communications that are the system’s operations. But these communications may, and ordinarily do, refer to events, processes, and the like, in the system’s environment. In that sense, systems are “cognitively open” to their environments. Luhmann thus does not deny the possibility of “external reference.” Instead, his point is simply that such reference is not a neutral mirroring of the world. To the extent that communicative systems have differentiated from one another, they have developed distinctive standards, criteria, and procedures and thus distinctive ways of apprehending the world.139 Law is not science, and science is not art. Luhmann’s point is simply that we cannot presume identity of meaning across system boundaries. But how, on Luhmann’s view, is one system “cognitively open” to another, when in the first instance the systems’ respective streams of communication present not “information” to one another but just “noise”? Luhmann’s answer is in terms of the notions of “irritation” (or “perturbation”) and structural coupling. Communication in one system may “irritate” another system’s communication to the extent that it “registers” or “resonates” in the irritated system’s structures, categories, or criteria. The meaning of the communication, however, will be different in the two systems. To the extent that the irritating communication can be neither screened out as irrelevant nor easily processed within the irritated system’s categories, Luhmann maintains, it may stimulate change in those categories. This possibility is the autopoietic equivalent for what more standard versions of social systems theory call “adaptation to the environment.” Autopoietic theory, however, emphasizes more strongly that the change is not simply induced from without but generated from within. Through “structural coupling,” Luhmann says, this process of mutual irritation can be made more systematic, making systems more responsive to one another. One meaning Luhmann gives “structural coupling” is that one system “presupposes specific states or changes” in another system and “relies on them.”140 Courts, for example, presuppose that their decisions will be enforced by the political system, and thus legal and political discourse are “structurally coupled” in this sense. This “coupling” seems consistent with Habermas’s notion of the reciprocal functions that law and



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political power perform for one another. Another meaning Luhmann gives “structural coupling” is that a structure or central category might be common to, though understood differently in, two systems. For Luhmann, legislation is a mechanism that structurally couples the legal and political systems, with different “prehistories” and “possibilities for connection” in the two systems.141 From the perspective of the political system, a statute’s “prehistory” is the political maneuvering that led to its enactment. By shifting (even if slightly) the balance of power between government and opposition, the statute’s enactment creates fresh possibilities for future political maneuvering. From the perspective of the legal system, by contrast, the statute’s “prehistory” is in the dutiful following of legally prescribed legislative procedures. As for new “possibilities for connection,” the statute’s enactment creates new valid law that changes the legal position for future cases.142 Law is full of concepts and categories that have this sort of “double significance”143—one meaning in legal communication and a related but not identical meaning in the communication of another system. A good example is the idea of property. Probably the dominant legal conception of property is expressed in the familiar “bundle of rights” formula.144 With the reference to “rights,” the formula refers “internally,” to the legal system’s own categories and procedures. But the rights in the bundle—to use, exclusive possession, disposition, profit—correspond to economic interests. The legal concept of property thus also refers externally and allows (in Luhmann’s term) “observation” of the economic system. But despite the reference to economic “interests,” the legal meaning of property does not coincide with its economic meaning—as I have argued elsewhere, with reference to “takings” law.145 Consider two further examples of this kind of structural coupling. First, the concept of “insanity” in criminal law is informed by its counterpart in psychiatry. But as the Supreme Court has noted, the two concepts “vary substantially,” given the different senses of “individual responsibility and competency” with which the two disciplines operate.146 Second, the use of experts in litigation allows incorporation of scientific knowledge into litigation, and part of the federal admissibility standard is whether the “reasoning or methodology underlying the testimony is scientifically valid.” The other part of the standard, however, refers to whether the information in question would “assist the trier of fact to understand or determine a fact in issue.” In announcing this standard, the Supreme Court noted differences between legal and scientific inquiry—specifically, in finality or revisability of conclusions, time constraints on the proceedings,

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and the purposes for which knowledge is to be used.147 To this list one might add the different standards of proof and the different capacities of the relevant inquirers. The idea of structural coupling suggests an important set of problems. The goal of improving the system’s “openness”—its ability to incorporate insights from other systems of communication—must be accomplished through mechanisms, procedures, and standards of the “observing” system. These of course can be modified, but they are not infinitely plastic. Improving a system’s “external” reference always is, at the same time, a problem of the system’s self-reference. Much more could be said about the idea of structural coupling, but this quick sketch will have to suffice.148 It shows, I think, that Habermas is wrong to dismiss autopoietic theory so quickly as a theory of “autistic,” “narcissistically marginalized” systems, “encapsulated in their own shells” and speaking only to themselves. At the same time, however, I think there is substance to a criticism of autopoietic theory that Habermas made five years before Between Facts and Norms: that Luhmann errs in conceiving of systems as observing, communicating subjects. Habermas argues that autopoietic theory is, in effect, an appropriation of (what Habermas calls and condemns as) the “philosophy of the subject.”149 Whether or not that is so, I agree that Luhmann is wrong to present systems—for example, the legal system—as unitary observers and communicators. In my view, the conception is inconsistent with Luhmann’s acknowledgment that systems like the legal system are themselves differentiated—in the case of the legal system, differentiated into “central” and “peripheral” circuits of communication. Further, in distinguishing between decision and argument, Luhmann understands legal communications to have different effects and different possibilities for connection to future communications. These differences among communications are flattened out by statements that present “the legal system” as communicator and observer. Luhmann’s account of the center/periphery distinction suggests, further, that some of the totalizing claims he makes for systems theory need to be trimmed back. Like Habermas, Luhmann distinguishes between “center” and “periphery” by looking to communications’ institutional site. Legal communication in the courts, he says, is central; communication in legislatures is peripheral. Courts and legislatures, however, are not elements of autopoietic theory. That theory conceives of society as the system of all communications, of the legal system as the totality of all legal communica-



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tions, and so forth. Only communications are elements and operations of a system. But when Luhmann begins to analyze the legal system, he needs more than elements and operations. He draws on a more conventional sort of social theory that speaks not just of systems and their elements but also of institutions—like legislatures and courts. Underneath the purity of autopoietic theory is a much more ordinary way of looking at the social world. What I am suggesting is a double focus. The networks of communication that Luhmann calls “systems” present possibilities for ongoing communication. Such networks make some possibilities more likely and tend to close off others. But which selections will be made depends on the “place” in the system at which the communication occurs—by which I mean the social site of communication, as identified by a more conventional theory that speaks of agents and institutions. It depends also on the nature of those agents, individual or collective, who are communicating. This is not to say that “systems,” as Luhmann conceives of them, are not both constraining and enabling. What one can say, and whether one will say it, is not simply a matter of purely free agency. But neither is it best described simply as an operation of the system. Instead of systems, then, we might better speak of “discourses” (or, alternatively, “communicative networks”). In addition to those “discourses,” we need an account of both the sites of discourse and those who discourse. Luhmann probably would not have accepted these suggestions as friendly amendments. But they strike me as improvements on an already powerful as well as brilliantly creative theory. Others have argued that while autopoietic insights are promising for legal theory, Luhmann’s work requires modification or supplementation. My suggestion that we see systems as discourses draws on some of the work of Gunther Teubner, Luhmann’s ambassador to the English-speaking world and important legal theorist in his own right. Teubner’s essay “Rethinking Legal Pluralism,” for example,150 takes the key concepts of autopoietic legal theory to be “perturbation” (or, “irritation” as described above), “structural coupling, and coevolution.” The special case of law’s relation to society, however, requires in Teubner’s view a recasting of the idea of structural coupling. Because law and other social fields belong to the same society, Teubner argues, they cannot be conceived simply as two independent autopoietic systems. And the idea of an autopoietic system within a broader autopoietic system presses for modifications of the general concept: Is not law, in relation to other cultural provinces like politics, science, economy, religion, culture, much more

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“Communication Theory of Society” “open” than the general concept of structural coupling would permit? Is not “interdiscursivity” in law and society much more dense than mere transitory perturbations could ever produce? And do we not find in the coevolution of law and society significantly more elective affinities than the mere coexistence of structural drift would provide for? To use our metaphor as a theme with variations: “order from music” instead of “order from noise”?151

Teubner goes on to conceive of the relations among systems as “interdiscursivity” and the latter in terms of “a clear-cut separation of autonomous (not semiautonomous) discourses” that, “at the same time,” are structurally coupled. Not the details of Teubner’s proposal but its general strategy of seeing systems as discourses or communicative networks is what interests me here.152 A second figure who, like Teubner, defends a critical and selective appreciation of Luhmann’s work is more central to Anglo-American thinking about law: the late Sir Neil MacCormick. Throughout his Institutions of Law (2007), MacCormick praises Luhmann’s work, particularly the idea of the binary code and the notion of structural coupling.153 Yet in the same paragraph that he endorses these autopoietic concepts, MacCormick eclectically uses ideas of system “input” and “output” that would horrify purist autopoietic theorists.154 MacCormick explains that “to accept system-theory for the light it sheds . . . does not require one to abandon critical judgment in respect of some less convincing parts of the theory.”155 He thus rejects the totalizing quality of Luhmann’s thought, where the same basic autopoietic concepts and principles apply to any attempt to understand reality, whether natural or social.156 MacCormick distances himself in particular from the idea that “individual human beings enter sociology as ‘psychic systems.’ ” I agree with MacCormick that the totalizing aspect of systems theory is to be avoided—though, for my part, I would join Luhmann in avoiding the input/output metaphor. Something like MacCormick’s “institutional” approach to law seems to me an important supplement to autopoietic theory.157 Particularly as amended, this conception of systems as discourses is consistent with what Habermas is trying to accomplish with his model of the circulation of power and his idea of law as translator among discourses. The main goal of Habermas’s “communications theory of society” is to show, in social-theoretical terms, how the “informal” discourses of the political public sphere can influence the institutionalized discourses of decision at the political system’s center. The possibility of this influence, he says, depends in turn on the openness of the political public sphere to the “impulses” of civil society.



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Autopoietic theory, particularly as revised, provides a way for Habermas to account for these connections among different circuits of communication. The “center” of the political system institutionalizes official discourses that are directed toward decision. Habermas distinguishes from that network of communication the political public sphere. This network of communication is “peripheral,” on Habermas’s account, but if we see his “political system” as a communicative network whose theme is political power, then the political public sphere is within the boundaries of the political system. “Civil society,” by contrast, does not name a circuit or network of communication that is closed by a single theme. Rather, “civil society” is the collective name for voluntary associations in which communication, but not just a single specialized sort of communication, can take place. In terms of autopoietic theory, civil society is an environment to the political system, though not one organized as a system or particular discourse. What Habermas’s account of democracy prescribes is, in effect, irritation and structural coupling among the three communicative networks he distinguishes. Recall, first, his account of the relation between civil society and the political public sphere. The voluntary associations of civil society are “attuned to how societal problems resonate in private life spheres.” Moreover, Habermas says, “the great issues of the last decades” were first discussed in these voluntary associations—and as examples of these issues he mentions the nuclear-arms race, the risks of nuclear power and genetic engineering, ecological issues, the “dramatically progressing impoverishment of the Third World and problems of the world economic order,” feminism, immigration, and multiculturalism. When first raised in civilsocial organizations, none of these issues was on the agenda of the political public sphere. But the members of the “public”—by which Habermas means those who participate in the political public sphere—are “recruited” from these voluntary associations. The process of getting general public attention to these issues required, both literally and in terms of autopoietic theory, irritation: “dramatize[d] presentations” that capture the attention of the mass media. “Only through their controversial presentation in the media,” Habermas says, “do such topics reach the larger public and subsequently gain a place on the ‘public agenda.’ ”158 This “irritation” of the political public sphere’s communicative network thus required strategic choices by concerned individuals and groups. For that reason, it is not readily explained simply as an operation of a “system”— autopoietic theory unamended. But unsatisfying, too, is the mixed metaphor Habermas uses to describe the process of agenda making: Civil-social

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organizations, he says, “distill and transmit” responses to social problems “in amplified form to the public sphere.”159 What the metaphor obscures is what autopoietic theory suggests: A communicative network is capable of screening out, as “noise,” a communication that does not conform to generally prevailing standards and assumptions. Irritation may, but hardly is guaranteed to, transform the network’s prevailing patterns. The relation between political public sphere (“periphery”) and decisionmaking institutions (“center”) is, from the point of view of autopoietic theory, a relation between subsystems of the political system.160 In other words, the two communicative networks are distinct. Habermas would not disagree. He distinguishes between informal public discourse and institutionalized discourses of decision-making institutions. The problem is to ensure that the political public sphere “influences” the course of official decision. Habermas’s reconstructive account of the “constitutional state” identifies a number of mechanisms that are designed to link the informal and formal discourses. These mechanisms are, in autopoietic terms, mechanisms of structural coupling. The most obvious is the requirement of periodic democratic elections. Like the other mechanisms of structural coupling, elections do not require that a particular communication have the same meaning in the communicative networks they link. Votes, if intended by voters as a statement of personal commitment, may “irritate” the official network of communication as threats to or confirmations of the balance of political power and the terms of access to power. Elections organize and focus these irritations and make outcomes legally binding. Similarly, guarantees of free speech, association, press, and assembly, “provide a continuous influx”161 of irritations into the communicative networks that operate through official decision-making institutions. So does the requirement that official debate and decision making be public. And so do mechanisms that provide for public hearings and participation in administrative decision making. None of these mechanisms guarantees that “normatively substantive messages” will resonate in official political decision making just as they do in the political public sphere. But they do establish and organize the (partial) openness of the political “center” to its “periphery.” I think, in short, that Habermas’s new account of law and democracy has more in common with autopoietic theory than with his earlier conceptions of system and lifeworld. The peculiar thing about the “communication theory of society,” however, is that Habermas ritually invokes those



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earlier conceptions, even as his “circulation of power” model implicitly transforms them. Given the flaws that the system/lifeworld model had from the start, and given its incompatibility with a normative theory of radical democracy, Habermas would do well to abandon it explicitly—but also to theorize more rigorously the replacement model of the “circulation of power.” This chapter has made suggestions in that direction. My consideration of Habermas’s thinking in Between Facts and Norms is now complete.

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chapter five

After Between Facts and Norms: Religion in the Public Square, Multiculturalism, and the “Postnational Constellation”

In the years since Between Facts and Norms, Habermas has extended his project in three directions. First, prompted in part by his 1995 debate with John Rawls, he has joined the growing discussion about religion’s place in public political discourse. Second, probably motivated both by the Rawls debate and by immigration-related developments, Habermas has sought to come to terms with multiculturalism. Third, and in contrast to the implicitly nation-state–based model of Between Facts and Norms, Habermas has considered the possibilities of democracy in what he now calls “the postnational constellation,” with particular attention to the integration project of the European Union. In this line of his work, Habermas has suggested a partial reformulation of the “circulation of power” model that occupied my attention in the last chapter. Moreover, his discussion of the postnational constellation extends to a reformulation of Kant’s program of “perpetual peace”—a reformulation that Habermas calls, alternatively, the “constitutionalization of international law” and the idea of “world society without a world government.” This chapter considers, in turn, each of these extensions of Habermas’s project.



After Between Facts and Norms

5.1 r el igion i n t h e pu bl ic squa r e 5.1.1 Background: The Rawls/Audi Restrictive View and Its Critics The publication of Rawls’s Political Liberalism in 1993 prompted an extensive debate about the role of religion in politics and particularly about the role of religion in public political discussion among citizens. His views, together with those later expressed by Robert Audi, have been taken to define one side of the controversy: the side arguing that citizens in liberal democracies should exercise restraint on public employment of religious reasons. Among those on the other side of the controversy, the views of Robert Wolterstorff and Paul J. Weithman have stood out. For his part, Habermas himself takes these thinkers to define his starting point, and I follow his strategy here. The central premise of Rawls’s political liberalism is what he calls “reasonable pluralism”: that free societies are necessarily divided by “incompatible yet reasonable comprehensive doctrines.”1 By “comprehensive” doctrines, Rawls means those that “include conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole.”2 Religious conceptions are clear (though not the only) examples.3 Rawls assumes that each citizen holds some comprehensive doctrine.4 Rawls’s strategy of dealing with reasonable pluralism is to require that the political conception he develops be “freestanding,” that is, not dependent on any particular comprehensive doctrine.5 In Rawls’s metaphor, this freestanding political conception can fit like a “module” into the comprehensive doctrine of each citizen.6 The political conception as module thus “in different ways fits into and can be supported by various reasonable comprehensive doctrines that endure in the society regulated by it.”7 In this way, Rawls argues, we can attain an “overlapping consensus” over a political conception of justice despite enduring and reasonable disagreement over comprehensive views.8 Rawls defines the “reason” of a political society as its way of “formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly.” This “public reason” organizes and regulates public political debate. Although Rawls also discusses the positive elements of public reason—he refers, for example, to the facilitative “guidelines and rules” of “public inquiry”9—he emphasizes the constraints it places on the kinds of reasons to be offered in public debate. With regard to “constitutional

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essentials” and “matters of basic justice,”10 Rawls maintains, “political values alone” are to be invoked.11 These “limits of public reason” do not apply either to personal deliberation about politics or to political discussion within voluntary associations but only to “citizens when they engage in political advocacy in the public forum” or to citizens when they vote on fundamental matters, as well as to “political parties,” candidates, and “other groups who support them.”12 But why these limits, particularly on the discussion of citizens? Rawls assumes that liberal democracy implies relatively deep commonality. His “ideal of democratic citizenship” requires that citizens “should be ready to explain the basis of their actions to one another in terms each could reasonably expect that others might endorse as consistent with their freedom and equality.”13 On one view of the matter, this requirement would exclude religious reasons—and other reasons drawn from comprehensive doctrines—from being offered in citizens’ discussion of constitutional essentials or issues of basic justice: These are not the kind of reasons that, under conditions of reasonable pluralism, all can be expected to endorse. Rawls calls this understanding of public reason “the exclusive view.”14 This view, Rawls suggests, might be the most appropriate one for the ideal case: a “more or less well ordered”15 society in which “members recognize a firm overlapping consensus of reasonable doctrines” and are “not stirred by any deep disputes.” There, “invoking only political values is the obvious and the most direct way for citizens to honor the ideal of public reason and to meet their duty of civility.”16 In other sets of circumstances, however, what Rawls calls the “inclusive view” is more appropriate. In one such set of circumstances, society is “nearly well-ordered” but faces a “serious dispute . . . in applying one of its principles of justice”—serious enough for “those of different faiths . . . to doubt the sincerity of one another’s allegiance to fundamental political values.”17 Here, according to Rawls, the dispute might be resolved if members of the contending groups were to explain to one another how their comprehensive views “affirm” shared political values. In this way, the break in trust could be repaired. Invoking comprehensive doctrines in these circumstances, and to this limited degree, would be a way of “honor[ing] the ideal of public reason.”18 Deeper reliance on comprehensive doctrines, Rawls suggests, would be appropriate in the case of a society that is not well ordered and faces “a profound division about constitutional essentials.” Rawls’s examples here come from the abolitionist and civil rights movements. In arguing that



After Between Facts and Norms

slavery was contrary to God’s law, Rawls maintains, the “nonpublic reason” that abolitionists invoked “supported the clear conclusions of public reason.” In so doing, they might well “have seen their actions as the best way to bring about a well-ordered and just society in which the ideal of public reason could eventually be honored.” Similar analysis, Rawls thinks, applies to Martin Luther King Jr.’s advocacy. Here too, the inclusive view of public reason would be appropriate. In his 1997 essay, “The Idea of Public Reason Revisited,”19 Rawls reconsiders this case-by-case approach to the question whether citizens may invoke reasons from their comprehensive doctrines in discussion of constitutional essentials or matters of basic justice. Rather than the “inclusive view of public reason,” Rawls now refers instead to “the wide view of public political culture,” but under this latter heading he again invokes the two special sets of circumstances justifying reliance upon comprehensive doctrines.20 In addition, and most important, Rawls now states a general “proviso” that marks out a much more religion-friendly position: Reasonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discussion at any time, provided that in due course proper political reasons—and not reasons given solely by comprehensive doctrines—are presented that are sufficient to support whatever the comprehensive doctrines are said to support.21

The difficult issues of how, how soon, and by whom political reasons must be provided “must be worked out in practice” and are governed “by the nature of the public political culture.”22 For most recent discussion of religion’s role in the public square, Rawls’s notion of the proviso has been a basic point of reference. In this debate, on the side of restraining religious reasons, Robert Audi is perhaps best known. Like Rawls, Audi considers not what citizens have a legal right to say in public political debate but instead what a proper “ethics of citizenship” requires.23 And like Rawls, Audi sees democratic discussion as tending to require citizens to address each other with reasons to which all might agree.24 But the scope of political debate in which religious reasons are problematic is broader for Audi than for Rawls: Whereas Rawls considers restrictions only with respect to constitutional essentials and matters of basic justice, Audi considers, more generally, all citizen advocacy of coercive laws or public policies.25 Audi announces two principles restrictive of religious reasons.26 According to the first, the principle of “secular rationale”:

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After Between Facts and Norms One has a prima facie obligation not to advocate or support any law or public policy that restricts human conduct, unless one has, and is willing to offer, adequate secular reason for this advocacy or support (say for one’s vote).27

By “secular reason,” Audi means “one whose normative force . . . does not evidentially depend on the existence of God (or on denying it), or on theological considerations, or on the pronouncements of a person or institution qua religious authority.”28 According to Audi, only in “special contexts,” where “candor or other considerations require laying out all of one’s main reasons,” should a citizen’s advocacy for a coercive law or policy invoke religious reasons.29 While Audi does not give an example of such a “special context,” he seems to mean something like what Rawls calls “declaration”: a form of discourse in which the speaker shows how a political position or conception of justice is consistent with, and even emerges from, the speaker’s comprehensive doctrine.30 Even here, however, the speaker (on Rawls’s analysis as well as Audi’s) must present a secular argument sufficient to justify the position. The second principle is the “principle of secular motivation.” In Audi’s formulation: One has a (prima facie) obligation to abstain from advocacy or support of a law or public policy that restricts human conduct, unless one is sufficiently motivated by (normatively) adequate secular reason.31

A motivation is “sufficient,” Audi explains, if (1) the reason explains the action and (2) “one would act on it even if, other things remaining equal, one’s other reasons were eliminated.” It follows that the presence of a religious motivation is not necessarily impermissible, provided that it is accompanied by a secular motivation that would by itself be sufficient to generate the action.32 Indeed, Audi allows, religious convictions may be “genetically basic,” “motivationally primary,” and “evidentially adequate.”33 Audi maintains that his restrictions on religious reasons neither make religion “purely private” nor “marginalize” it.34 His opponents disagree. The opponents of the reason-restrictive position to whom Habermas most attends are Paul Weithman and Nicholas Wolterstorff. Weithman opposes his position to what he calls “the standard approach,” an approach for which he sees Rawls and Audi as the key proponents. This standard approach, Weithman argues, errs in its requirement that reasons in political debate must be, in a special sense, “accessible,” “intelligible,” or “comprehensible” to all.35 Against (in particular) Audi’s position that only secular reasons meet this requirement, Weithman asks:



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“Why think that adequately informed, rational adults cannot see the reason-giving force of religious reasons?”36 The question is apt with respect to secularly minded as well as religious citizens. As Weithman observes: “I may reject utilitarianism, but I can still see utilitarian considerations as reasons of a sort. I can still see the people who offer them as not unreasonable, even when they offer them as the basis for settling fundamental political questions.”37 Why are matters different with religious rather than utilitarian reasons? In addition to questioning the basic premise of the Rawls/Audi “standard approach,” Weithman presents an empirical argument that institutionalized religion, and religious argument, play an important role in promoting American democracy.38 The argument has two parts. First, according to Weithman, churches39 contribute to what he calls “realized citizenship,” particularly among the poor and minorities. Second, Weithman maintains, specifically religious argument contributes a distinctive and valuable moral vocabulary and set of concerns to democratic political discourse. By “realized citizenship,” Weithman means that one has both “real opportunities” as well as “legally guaranteed opportunities to participate” and that implies in turn that one has “the resources of information, skills, networks and influence to take advantage of ” citizenship’s opportunities.40 Weithman mentions churches’ contribution, through social services, to “the material conditions associated with democratic equality.”41 Further, he observes, membership in a church provides a locus for political information, discussion, and recruitment; exposes the citizen to encouragement to vote or otherwise as participate (twice as likely, Weithman’s study suggests, as in the workplace setting); and offers opportunities for volunteer service that both develops politically relevant skills and suggests a connection between moral and political issues.42 Weithman emphasizes particularly the importance of church organizations for political participation among African Americans, especially “low status” African Americans, and the poor.43 Without the activity of churches, Weithman maintains, these “segments” of the population would be largely excluded from, or at least less represented in, the political process.44 In the second part of his argument that religion contributes importantly to American political life, Weithman is particularly interested to combat the assumption that its influence is either illiberal in its mode of preference-formation45 or (a slightly different point) politically conservative in content. On the second score, Weithman emphasizes the arguments, for example by the Catholic Church, for greater economic equality,46 as well as

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the arguments by Martin Luther King Jr. and other theologians for racial equality.47 Since 1995, the Catholic Church has pressed arguments against the death penalty.48 Weithman notes that significant advocacy efforts, by the Catholic Church and other churches, have been devoted to the promotion of children’s health, the protection of refugees and immigrants, campaign finance reform, affirmative action, food stamps, health care for the poor, and humanitarian aid to Africa.49 These church efforts have been reflected in the views, reasons, and arguments presented by individual church members.50 These issues and concerns, of course, are more commonly associated with the left end of the political spectrum than with the right. Weithman acknowledges that the Catholic Church (and of course some Protestant denominations) engages in religious advocacy against abortion as well as against assisted suicide. But it is a “stereotype” of religious argument, Weithman says, to focus on “pro-life” positions and ignore the many other issues on which religious advocacy assumes a more politically “liberal” position.51 This stereotype, Weithman suggests, likely accounts for some of the appeal, to some political liberals, of restrictions on religious arguments in politics.52 Finally, Weithman argues with respect to the content of religious advocacy, religious argument may in comparison to standard political speech use different and more striking terminology and metaphor, thereby casting political issues in a new light and encouraging “sustained reflection on the moral dimensions of public policy.”53 On the basis of his argument against the foundational Rawls/Audi notion of accessibility (or comprehensibility, or intelligibility), as well as his “empirical” argument for the contribution religious organizations and individuals make to American democracy, Weithman defends the position that “citizens may offer exclusively religious arguments in public debate and . . . they may rely on religious reasons when they cast their votes.”54 Specifically, against Audi’s principle of secular rationale, Weithman argues that Audi overestimates the danger of civil strife that otherwise would be unleashed; against both that principle and Audi’s principle of secular motivation, Weithman contends that Audi undervalues religious contributions to democracy.55 But missing from Weithman’s argument, in my opinion, is an argument against Rawls and the proviso. Why is it impermissible to require religious citizens to provide “in due course” a secular argument in addition to their religious argument? Nicholas Wolterstorff, like Rawls and Audi, considers “the role of citizen in a liberal democracy.”56 His central question is whether religious reasons may be determinative in debating or deciding political issues. Like



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Weithman, Wolterstorff concludes that a proper ethics of citizenship places no restraint on the use of religious arguments in citizens’ political debate or voting.57 He goes beyond Weithman, perhaps, in arguing against any general restraint on religious reasons by officeholders.58 Wolterstorff, correctly in my opinion, sees that he opposes not a unified “liberal” or “standard” approach but a “family of positions,” with a common element being some form of restraint on religious reasons.59 He begins his discussion by noting what, at first glance, would be (in his view) a “flagrant conflict” between restraints on reasons and the idea of liberal democracy.60 And why, he asks, a restraint on religious reasons in particular? The answer, he thinks, cannot be that such a restraint is necessary for social peace. While that contention was “cogent” in seventeenth-century Europe, we “now have behind us a long history of religious tolerance,” and “American society at the end of the twentieth century is a different matter.” Further, Wolterstorff observes—citing American abolitionism, as well as political resistance movements in Nazi Germany, communist Europe, and apartheid South Africa—“Many of the social movements in the modern world that have moved societies in the direction of liberal democracy have been deeply and explicitly religious in their orientation.” And secular systems such as communism or fascism, Wolterstorff says, have been the forms in which most brutality has been carried out.61 This first argument, like Weithman’s argument about the contributions religious organizations and citizens make to American democracy, could be called “empirical.” Wolterstorff also engages the theoretical logic behind the positions of his opponents, both Rawls and Audi. Against Rawls, Wolterstorff argues that basing a political position on a comprehensive doctrine, including a religious doctrine, is consistent with treating others as free and equal citizens with equal political voice. While democracy requires a certain amount of agreement about conclusions, fair majority-vote procedures are sufficient.62 According to Wolterstorff, Rawls overemphasizes the likelihood63 and need for agreement on principles or reasons. “If I can defend a policy I accept with reasons that you find cogent,” he asks, “what difference does it make to you whether those were also for me the determinative reasons?”64 In an interesting argument, Wolterstorff further suggests that “the liberal”—prototypically Rawls but also Audi—is a communitarian of sorts, based however on common reasons rather than shared values: What is striking about our contemporary proponents of the liberal position is that they are still looking for a politics that is the politics of a community with

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After Between Facts and Norms a shared perspective. They see that that perspective cannot, in our societies, be a comprehensive perspective. . . . So they propose scaling down our expectations. Take a society that is more or less a liberal democracy, and then consider a single aspect of that society, a single dimension: the political. . . . The perspective which it embodies will be the shared political culture of the society. The liberal is not willing to live with a politics of multiple communities. He still wants communitarian politics. He is trying to discover, and to form, the relevant community. He thinks we need a shared political basis; he is trying to discover and nourish that basis. For the reasons given, I think that the attempt is hopeless and misguided. We must learn to live with a politics of multiple communities.65

According to Wolterstorff, citizenship in a liberal democracy requires honoring others in their particularity, not just their abstract freedom and equality. That means listening to others in political discourse, even when the message comes from what might be called a “comprehensive doctrine.” This, Wol­ terstorff argues, is the proper duty of civility: “listening to the other person with a willingness to learn and to let one’s mind be changed.” And that means without restriction of the kind of reasons that may be offered. 66 Finally—and this is the argument that most engages Habermas— Wolterstorff argues that restriction on religious reasons, even if presented in an ethics of citizenship and not a legal code, unfairly burdens the free exercise of religion. He would find this unfairness particularly clear in Audi’s position, according to which restrictions are required only for religious reasons, not for reasons derived from other comprehensive positions. But he notes that the same discrimination is likely under Rawls’s position: While the use of religious reasons is easily detectable, reliance on secular comprehensive doctrines (such as utilitarianism or nationalisms) is less apparent. And more fundamental, Wolterstorff argues, the religious convictions of “a good many” prescribe that they ought to base their decisions concerning fundamental issues of justice on their religious convictions. They do not view it as an option whether or not to do so. . . . Accordingly, to require of them that they not base their decisions and discussions concerning political issues on their religion is to infringe, inequitably, on the free exercise of their religion.67

This point is part of the motivation behind Habermas’s criticisms of Rawls and Audi.

5.1.2 Habermas and the “Institutional Translation Proviso” Habermas entered this controversy with his 2005 book Between Naturalism and Religion (translated into English in 2008). He gives Rawls



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“immense credit” for launching the debate 68 but notes (and this will be his view as well) that Rawls’s position has been criticized as “overly narrow”69 and “rather restrictive.”70 While Habermas acknowledges the force of Weithman’s “empirical” and “functional” argument that religious organizations have contributed much to American democracy,71 he sees the “central objection” to Rawls as Wolterstorff ’s. As Habermas characterizes that objection: “A state cannot encumber its citizens, to whom it guarantees freedom of religion, with duties that are incompatible with pursuing a devout life—it cannot expect something impossible of them.”72 On the issue of whether citizens may rely exclusively on religious reasons in public political discourse, Habermas’s position turns out to be much closer to Weithman and Wolterstorff than to Rawls and (especially) Audi. But Habermas’s “institutional translation proviso,” presented as an alternative to Rawls’s proviso, emphasizes against Weithman and Wolterstorff that the world of discussion among officeholders and candidates must be a world of secular reasons only. Habermas presents his argument as part of “postmetaphysical thinking.” What Habermas particularly means by “postmetaphysical” in this context is a refusal either to affirm or deny the truth of religious claims— either of which, he seems to believe, would itself be a metaphysical assertion. Habermas describes his position as an agnostic, but nonreductionist form of postmetaphysical thinking. It refrains, on the one hand, from passing judgment on religious truth, while insisting (in a non-polemical fashion) on making a strict demarcation between faith and knowledge. On the other hand, it rejects a scientistically truncated conception of reason and the exclusion of religious doctrines from the genealogy of reason.73

Postmetaphysical thinking, he says, “refrains from making ontological pronouncements on the constitution of being as such.”74 Habermas also characterizes his position as “secular” rather than “secularist.”75 By “secular,” Habermas means that he does not affirm the truth of religious claims. That is consistent with his description of postmetaphysical thinking as “agnostic.”76 By “secularist” (or “laicist”77), on the other hand, Habermas means one who “adopts a polemical stance towards religious doctrines.”78 The secularist views religion as a retrograde position that, at least ideally, “will ultimately dissolve in the acid of scientific criticism.” For the secularist, religious thinking has nothing positive to contribute to political discussion, and a refusal to take it seriously is consistent with democratic citizenship.79 But for Habermas, this kind of secularist thinking may be “just as unappetizing” for democracy as religious fundamentalism.

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Indeed, he asks, “Don’t the very same normative expectations that we have of an inclusive civil society forbid a secularistic devaluation of religion as much as, for example, the religious rejection of the equal status of men and women?”80 Habermas’s argument in fact ranges across four distinct positions, each progressively more favorable to religious thought: 1. As a matter of postmetaphysical epistemological thinking, we cannot say there is no cognitive content to religion. 2. We must as citizens acknowledge that there may be “cognitive substance” in religious claims81 and that religious positions may be susceptible of truth.82 3. Secular citizens have something to learn by attending to religious thought.83 4. Religious thinking historically has made contributions to democracy, and it has at least the potential to do so at present.84 In Habermas’s most positive formulations, “religious traditions have the power to provide convincing articulations of moral sensitivities and solidaristic intuitions,”85 and they “have a special power to articulate moral intuitions, especially with regard to vulnerable forms of communal life.”86 Habermas identifies a number of current political issues on which religious communities may contribute “convincing moral intuitions”: euthanasia, “bioethical issues in reproductive medicine,” animal protection, and climate change.87 Rawls’s position, according to Habermas, would suppress these religious contributions to democratic debate. The point is not obvious, however: Recall that Rawls permits citizens to express purely religious (or otherwise “comprehensive”) views in public political debate, so long as “in due course” they provide secular and “proper political” reasons.88 Habermas therefore must attack Rawls’s proviso directly. Habermas reads Rawls’s proviso through the metaphor of translation: The religious citizen has an obligation “in due course” to provide a “proper political” translation for her religious reasons. Although Rawls imposes a similar obligation on a citizen who relies on a secular comprehensive doctrine, Habermas perceives an unfair asymmetry.89 His idea must be that secular reasons deriving from a comprehensive view are more easily translated into Rawls’s “proper political” reasons than are religious reasons. And here we come back to Wolterstorff’s objection to Rawls: “A good many religious people” believe that



After Between Facts and Norms they ought to base their decisions concerning fundamental issues of justice on their religious convictions. They do not view it as an option whether or not to do so. . . . Accordingly, to require of them that they not base their decisions and discussions concerning political issues on their religion is to infringe, inequitably, on the free exercise of their religion.90

For these religious citizens, Rawls’s required translation is not available, and in that sense, the burden of translation is asymmetrical. Habermas’s argument against this asymmetrical burden is conceptual: The liberal state contradicts itself if it demands that all citizens conform to a political ethos that imposes unequal burdens on them. The translation proviso for religious reasons and the institutional precedence of secular over religious reasons demand that religious citizens make an effort to learn and adapt that secular citizens are spared.91

But why does the “liberal state contradict[] itself ”—or, more accurate, why does Rawls’s proposal contradict the idea of the liberal state? As Habermas suggests elsewhere, Rawls rightly focuses on neutrality of aim rather than neutrality of effect: “Individual norms and measures” always have differential effects on “different cultural groups.” 92 This is true even if the norm is “in the equal interest of all.” 93 And so the mere fact of a differential burden on religious and secular citizens is not conceptually inconsistent with the idea of the liberal state. Nonetheless, Habermas’s alternative to Rawls’s proviso targets this unequal burden on religious and secular citizens. The basic idea of this alternative is that while religious reasons presented in the informal public political sphere must be translated before they may enter the political system’s institutional core,94 the burden of translation should be mutual— that is, shared by religious and secular citizens. Habermas formulates his “institutional translation proviso” as follows: The liberal state must not transform the necessary institutional separation between religion and politics into an unreasonable mental and psychological burden for its religious citizens. It must, however, expect them to recognize the principle that exercise of political authority must be neutral toward competing worldviews. Every citizen must know and accept that only secular reasons count beyond the institutional threshold separating the informal public sphere from parliaments, courts, ministries, and administrations. . . . Religious citizens can certainly acknowledge this “institutional translation proviso” without having to split their identity into public and private parts the moment they participate in public discourses. They should therefore also be allowed to express and justify their convictions in a religious language even when they cannot find secular “translations” for them.95

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And yet the burden Habermas imposes on religious citizens is far from trivial. As part of accepting the exclusivity of secular reasons in the political system’s institutional core, they must accept the “institutionalized monopoly on knowledge of modern scientific experts.” 96 Religious citizens must also “reasonably reckon with the persistence of disagreement in their dealings with non-believers and members of other faiths.” 97 This latter injunction amounts to the requirement that religious citizens accept Rawls’s idea of reasonable pluralism: While the religious citizen of course may hold to his own comprehensive view, he must recognize the reasonableness and permissibility of others. Along these lines, and in a somewhat surprising development, Habermas accepts and adopts Rawls’s idea of “political conception as module” (despite his criticism, in his 1995 debate with Rawls, of Rawls’s more general theory of a political conception’s justification): The major world religions must reappropriate the normative foundations of the liberal state on their own premises. . . . Rawls chose the image of a module to represent how the morality of human rights is “embedded” within different religious comprehensive doctrines. The module fits into the various orthodox contexts of justification even though it is constructed exclusively on the basis of reasons that are neutral with respect to worldviews.98

While mainstream Protestant churches and (since Vatican II) the Catholic Church have reached this institutional accommodation with the liberal democratic state, Habermas notes that “many Muslim churches still have to undergo this painful learning process.” 99 One might add that this process remains outstanding for many nonmainstream Christian churches, as well as for individual believers within mainstream Protestantism and Catholicism. The burden of accepting a liberal democratic political conception from “within” a religious comprehensive view—and not merely reaching a “modus vivendi”100 with it—is significant indeed. And finally— although Habermas does not make the point explicit—religious citizens presumably must make the effort to provide secular translations of their religious reasons if they want these reasons to have influence on the political system’s secular institutional core. This remains so even if, according to Habermas, religious citizens must be free to participate in the informal political public sphere even if they cannot find available secular translations for their religiously inspired views.101 Habermas has suggested that the burden on secular citizens should be no less than the burden on religious citizens. In addition to relieving some of the obligations Rawls assigns to religious citizens, Habermas tries to equalize the burdens by imposing additional requirements on secular



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citizens. Habermas mentions three requirements specially applicable to the secular—or, as Habermas sometimes says, to the “religiously tone-deaf.”102 First, in their capacity as citizens—that is, as participants in political discussion—they must not take the position that religious views are irrational or not susceptible of truth.103 Second, they must “rationally reckon with the fact of continuing disagreement”104—that is, expect religion to continue as a presence in modern life, including political life.105 Third, they may not question the right of believers to “couch their contributions to public discussions in religious language.”106 And finally, they must “participate in efforts to translate relevant contributions from the religious language into a publicly accessible language.”107 At first glance, and at least from the side of religious citizens, Habermas’s proposal might seem less restrictive on reason giving in public debate than Rawls’s proviso. He addresses solicitously the religious citizen who can find no “translation” into public reasons for her religiously based political view. Such a citizen, according to Habermas, does not violate the ethic of democratic citizenship by offering only religious reasons. But Cristina Lafont has perceptively argued that Habermas’s proposal places unjustified burdens on both religious and secular citizens. This point is particularly clear with respect to secular citizens. According to Habermas, secular citizens may not present what he has called a “secularist” argument in public debate, that is, an argument that religiously grounded views are historically retrograde. While Habermas may (or may not) be correct that this position is, on the merits, unjustified, it is a separate question whether that position should be banned from public discourse. And on that point Habermas provides no argument. It is not simply a matter, on Habermas’s part, of suggesting that secular citizens refrain, for reasons of civility, from expressing disrespect for their religious co-citizens’ views. Habermas goes beyond that to require that secular citizens acknowledge the possible truth of religious beliefs. As Lafont asks: Why is that “a precondition of democracy or rationality?”108 One might question, further, why secular citizens should be required to assist religious citizens in finding “translations” of religious reasons into public reasons—the only kind of reasons that, on Habermas’s position, may count in forming policy or reaching political decisions. It might indicate an excellence of character—a special democratic generosity—but it seems excessive to expect this solicitude from secular citizens as a matter of course. Lafont further questions Habermas’s requirement that religious citizens must, for purposes of democratic debate, accept the cognitive authority of

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science109—or, as Habermas puts it even more strongly, the “institutionalized monopoly on knowledge of scientific experts.”110 Here too, she observes, Habermas provides no justification.111 And because the authority vel non of science is itself a contested political issue—for example, in the teaching of evolution in public schools—the requirement seems to me inconsistent with Habermas’s solicitude for religious citizens’ freedom to participate in public debate.112 In this way, too, Habermas’s proposal is more reason-restrictive than it might first seem. Lafont’s proposed revision of Habermas’s “institutional translation proviso” would, she says, “recognize the right of all democratic citizens to take their own cognitive stance in public deliberation.”113 Secular citizens would be free to question the “cognitive substance”114 of religion, and religious citizens would be free to question the epistemological and political authority of science. But this freedom would not, in Lafont’s terms, “include[] an additional right to the protection of the integrity of such cognitive stances.”115 What Lafont means is that while in advocating “coercive policies” citizens would be free to present their arguments initially in whatever form they choose—whether in terms of public reasons, in a secular but “comprehensive” idiom, or in religious language—they must be “prepared to address any objections based on reasons generally acceptable to democratic citizens that other participants may advance against such policies.”116 In Lafont’s full statement of what she calls (in lieu of Rawls’s “proviso” and Habermas’s “institutional translation proviso”) the “accountability proviso”: Citizens have no obligation to provide either public reasons or translations in terms of public reasons for each policy proposal they support or criticize, but they do have the obligation to address any such reason that is introduced by others against their proposals. Whenever citizens manage to cast their objections to a proposed policy in terms of reasons generally acceptable to democratic citizens (i.e. reasons based on basic democratic principles of freedom and equality, etc.), other citizens have the obligation to address and to defeat them with compelling reasons before such a coercive policy can be enforced.117

But how different is Lafont’s “accountability proviso” from Rawls’s proviso? Although free in the first instance to present purely religious arguments on any political issue—including constitutional essentials and matters of basic justice—Lafont’s religious citizen must be prepared to address objections that are framed in terms of public reasons.118 And while Lafont’s essay does not make the point entirely clear, it seems that the reply must be in terms of public reasons. I make this inference because Lafont



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assigns citizens who are faced with public-reasons-based objections “the obligation to address and to defeat [those objections] with compelling reasons.”119 And for Lafont, as for Rawls and Habermas, legitimately winning arguments must be based on “reasons generally acceptable to democratic citizens.” That, she says, is required by “any serious commitment to deliberative democracy.”120 In short, Lafont’s proposal, like Rawls’s, seems to be that citizens may present arguments in any form, including purely religious form, provided that they then address, with public reasons, any objections that are based on public reasons. Indeed, Lafont’s proposal may be more restrictive than Rawls’s because (as with Audi’s proposal) it extends to any advocacy of a coercive policy, not just issues of constitutional essentials or matters of basic justice. Lafont has well articulated the core difficulty of (what Weithman would call) the “standard approach” to religious argument in deliberative democratic theory. On one hand, theorists like Rawls, Audi, and Lafont believe that deliberative democracy entails in public debate an “obligation to provide reasons acceptable to everyone that justify coercive policies to which all must comply.” Under conditions of reasonable pluralism, religious reasons cannot meet this standard. But, on the other hand, as Lafont argues, deliberative democracy seems to require that each citizen freely be able to “judge the policies under discussion strictly on their merits,” and this requires in turn that they be “allowed to adopt their own cognitive stance, whatever it may be.” As Lafont formulates the difficulty: The challenge for a defense of deliberative democracy under pluralistic conditions is to come up with a design of political deliberation in the public sphere that recognizes the right of all democratic citizens to adopt their own cognitive stance in deliberation, whether religious or secular, without giving up on the obligation to provide reasons acceptable to everyone that justify coercive policies to which all must comply.121

Lafont is correct that Habermas, without remarking on the point, has given up the idea that each participant in democratic debate must “provide reasons acceptable to everyone.” Religious citizens, he has said, may express purely religious views without providing secular translations. In taking this position, Habermas is siding with Weithman, in particular, on the side opposite Rawls in the debate about religion’s role in the public sphere. If secular citizens are able, as Habermas suggests they are, to provide secular translations for religious reasons, then they are able to see them as reasons and to grasp the force that they have for the believer.122 Why does the notion of deliberative democracy require more? Here Weithman’s

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observation, quoted earlier in the chapter, seems to me pertinent: “I may reject utilitarianism, but I can still see utilitarian considerations as reasons of a sort. I can still see the people who offer them as not unreasonable, even when they offer them as the basis for settling fundamental political questions.”123 Whether or not one agrees with Wolterstorff ’s diagnosis— that liberals like Rawls are like disappointed communitarians in a pluralist world, prescribing that although we are divided by values we must be united in offering the same kind of reasons—it seems more basic to democracy, “deliberative” or otherwise, to allow all citizens to maintain their own “cognitive stance” than to require all to employ the same kind of reason. Habermas, it seems to me, needs to acknowledge explicitly that he has in effect fully repudiated the Rawls/Audi view that citizens must place special restrictions on their use of religious reasons in public political discourse. (But the position of officials, again, is different: In the halls of political decision, Habermas says, only secular reasons may count.)

5.2 m u lt ic u lt u r a l ism a n d c ons t i t u t ion a l pa t r io t ism Habermas’s recent discussions of religion and the future of Europe have led him to enter debates over multiculturalism more generally. As with his discussion of religion, Habermas’s treatment of multiculturalism invokes, and positions him in relation to, the work of others. For purposes of presenting Habermas’s views, two figures in the multicultural debate are particularly useful to discuss: Will Kymlicka, an influential liberal multiculturalist, and Brian Barry, a liberal and sharp critic of multiculturalism. The focus will be on the nature of rights in multiculturalist societies. Because Habermas’s treatment is sometimes more allusive than systematic, my sketch of Kymlicka’s and Barry’s positions will need to fill in the gaps.

5.2.1 Background: Kymlicka and Barry Kymlicka’s Multicultural Citizenship (1995) defends the idea of “groupdifferentiated citizenship” with “group-differentiated” (or “group-specific”) rights. The latter term is in Kymlicka’s view preferable to the term collective rights that is commonly associated with multiculturalist theories. This is so, he says for several reasons. First, the term collective rights is too broad because, if taken literally, it would extend to include rights held by unions,



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corporations, and the public. Those rights, however, are not what is controversial about multiculturalism. Second, the term collective rights suggests an opposition to individual rights. But, in fact, many of the rights associated with Kymlicka’s version of multiculturalism are to be exercised by individuals, with individual legal claims available for their violation.124 Third, Kymlicka notes, the term collective rights suggests ideas of collectivism or communitarianism, as opposed to individualism, and the communitarian/ individualist debate is in Kymlicka’s view not helpful for his purposes.125 Kymlicka identifies three kinds of group-differentiated rights. The first, self-government rights, includes rights to “some form of political autonomy or territorial jurisdiction” accorded to component nations in multination states. Mechanisms for extending such rights include federalist governmental structures and reserved territory. As an example of the first mechanism, Kymlicka refers to Canadian federalist arrangements that were designed to ensure Francophone control over matters related to education, language, and culture. Examples of the second mechanism include the “reservations” (U.S.) and “reserves” (Canada) allocated to tribes or bands of indigenous peoples.126 The second form of group-differentiated rights Kymlicka calls “polyethnic rights.” Characteristic measures to secure those rights concern public support for group-specific cultural or linguistic practices and—here Habermas is generally approving—exemptions from general laws that bear heavily on particular groups’ characteristic religious practices. Taken as a whole, Kymlicka says, these polyethnic rights are “intended to help ethnic groups and religious minorities express their cultural particularity and pride without . . . hampering their success in the economic and political institutions of the dominant society.”127 The final category of group-differentiated rights that Kymlicka identifies comprises “special representation rights.” Proportional representation, Kymlicka observes, is one mechanism for securing such rights,128 but in the American context, at least, such electoral schemes are comparatively rare. The most prominent form of special representation rights in American law, as Kymlicka notes, is race-conscious legislative districting, pursuant to the Voting Rights Act of 1965.129 American law currently permits some such race-conscious districting practices if the group in question is “sufficiently large and geographically compact to constitute a majority in a [particular] district” and voting patterns are racially polarized.130 Under these conditions, the U.S. Supreme Court has held, a specially drawn “majorityminority” district may be necessary to ensure that “the political processes

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leading to nomination or election . . . are . . . equally open to participation by members of ” the group in question.131 But race-conscious districting has been controversial from the beginning, and, in a series of cases that Kymlicka notes, the Court has ruled that the Constitution may be offended if “race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines.”132 Still, at present, and subject to these limitations, race-conscious districting is an example in American law of Kymlicka’s “special representation rights.” The basis for extending group-differentiated rights that Kymlicka emphasizes most strongly is equality. The theory behind race-conscious districting, for example, is that, in a race-polarized society, the votes of racial and ethnic minorities otherwise will be “diluted” and (after the election) their interests unfairly neglected. With respect to polyethnic rights, Kymlicka argues that equality may require explicit recognition and protection of minority cultural practices. Against the objection that a liberal principle of state neutrality would be offended, Kymlicka maintains that government neutrality with respect to ethnic and national groups is in fact impossible. According to Kymlicka, “Government decisions on languages, internal boundaries, public holidays, and state symbols unavoidably involve recognizing, accommodating, and supporting the needs and identities of particular ethnic and national groups.” And so “the state unavoidably promotes certain cultural identities, and thereby disadvantages others.”133 For this reason, Kymlicka argues, the principle of equality may require special support for minority cultural practices, including in some cases exemption from generally applicable laws. Kymlicka defends these three kinds of group-differentiated rights as “external protections” for cultural minorities that may be consistent with liberalism. Sharply in tension with liberalism, however, are what Kymlicka calls “internal restrictions,” or, putative “right[s] of a group to limit the liberty of its own individual members in the name of group solidarity or cultural purity.”134 As examples of illiberal internal restrictions that might be asserted in the name of polyethnic rights, Kymlicka cites requests that the state permit (1) group-based exemptions from (for example) public schooling (designed to keep children in the traditional religious community), (2) traditional cultural practices of genital mutilation or compulsory arranged marriage, and (3) a “cultural defense” to charges of spousal abuse.135 On Kymlicka’s analysis, the second and third sorts of internal restrictions would be impermissible in a liberal society. But matters may be more “complicated,” Kymlicka suggests, with respect to the first. He notes



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that certain ethnic groups—he mentions the Amish, Mennonites, Hasidic Jews, and (in Canada) the Hutterites—have been “allowed to maintain certain illiberal institutions for many years, even many generations.” Although past permission does not now have dispositive weight, Kymlicka indicates that long-established groups at least “have a stronger claim to maintain internal restrictions than newly arriving immigrants.”136 He discusses, but does not clearly indicate a conclusion concerning, the Amish practice of ending children’s schooling before age sixteen and the Hutterite practice of denying compensation to those ousted from the community and common lands for the sin of apostasy.137 Kymlicka distinguishes, finally, between voluntary immigrants and national minorities. The latter, he says, typically seek integration into the larger society, while the former may demand to remain “distinct societies alongside the majority culture” with “various forms of autonomy or selfgovernment to ensure their survival as distinct societies.” National minorities, Kymlicka indicates, are those groups whose territory has been involuntarily incorporated into the larger society. In the American context, he identifies American Indians, Puerto Ricans, the descendants of Mexicans whose territory was annexed after the Mexican war of 1846–1848, “native Hawaiians, the Chamorros of Guam, and various other Pacific Islanders.” Canadian national minorities include the Québécois and “Aboriginal communities.”138 Kymlicka would reserve self-government rights for national minorities. Voluntary immigrants, he says, are entitled to government assistance aimed at fighting prejudice and discrimination as well as language training; in addition, and depending on the situation, some group-specific polyethnic rights, such as religiously based exemptions, may be appropriate. Kymlicka acknowledges that refugees fleeing persecution, and economic refugees, represent intermediate cases, as their immigration is not entirely voluntary. Yet Kymlicka suggests that, with respect to these groups, the government of the receiving country is not obliged to allow the groups to establish themselves as national minorities with self-government rights. “The best that refugees can realistically expect is to be treated as immigrants, with the corresponding polyethnic rights, and hope to return to their homeland as quickly as possible.” With respect to economic refugees, the government of the receiving country has an obligation to pursue economic redistribution among nations as the “only long-term solution.”139 Perhaps the foremost liberal critic of multiculturalism was the late Brian Barry. His Culture and Equality (2001) is a sometimes polemical140 examination of various multiculturalist positions, with Kymlicka a chief target.

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Habermas suggests at one point agreement with Barry and disagreement with Kymlicka, but I will argue that the picture is more complicated. At the outset, Barry sets aside certain group-based programs that his liberalism would countenance, “such as ‘affirmative action’ in relation to jobs, or special funding for education, to help groups whose members suffer systematic disadvantage”—provided that “ ‘disadvantage’ is defined in universal [rather than culturally specific] terms.”141 Further, Barry does not challenge “multiculturalist” education to the extent that it requires only “ ‘a greater degree of attention to minorities and women and their role in American history and social studies and literature classes in schools.’ ”142 It will turn out, also, that Barry is willing to permit, or at least consider permitting, some of the accommodations that Kymlicka describes as “polyethnic rights”—although as a matter of prudential cost/benefit judgment, not as a matter of equality right. But Barry suggests that some of the practices multiculturalists see as religiously mandated, and thus deserving of liberal accommodation, are only traditional practices “packag[ed]” as if they were religiously mandated. If no exemption is given from generally applicable laws, those who engage in the practice, he says, may well reevaluate it. Such has been the case, Barry argues, in some countries that have denied exemptions from humane treatment laws for ritual slaughter.143 Further, the characteristic argument Barry makes against religion-backed arguments for exemptions is that the challenged rule constrains not religious exercise but only the conduct directly burdened by the rule. He contends, for example, that humane slaughtering requirements do not restrict believers’ religious liberty but “only the ability to eat meat,” and eating meat, his argument goes, is not religiously required.144 Similarly, he interprets a motorcycle helmet requirement as restricting not religious liberty for Sikhs who assert a religious mandate that they wear turbans, but only the riding of motorcycles—a practice not required by the Sikh religion. As Barry summarizes the argument: [W]e must insist on the crucial difference between a denial of equal opportunities to some group (for example, a law forbidding Sikhs to ride motorcycles) and a choice some people make out of that from a set of equal opportunities (for example, a choice not to ride a motorcycle) as a result of certain beliefs.145

As I indicated, however, Barry is not entirely as oblivious to the burden on believers as these passages would suggest. While he uses the above arguments to oppose the idea that justice, equality, or religious liberty requires exemptions, he allows that “balance-of-interest” or “balance-of-advantage”



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arguments might support the believers’ cause. With respect to the helmet law, for example, he notes that “if not being able to ride a motorcycle ruled out a significant proportion of all the jobs in an area open to somebody with a certain level of trained ability, that would be relevant.” And further: It would also be a matter of specific concern if the inability to ride a motorcycle prevented Sikhs from joining the police force, because it is important that the police force be open to all, and should in fact contain representatives of all minorities. This is not so much a matter of doing a favor to Sikhs as one of pursuing a benefit to all of us. But there is nothing to prevent police forces from organizing themselves so that Sikh members are not assigned to duties that entail riding a motorcycle. (The police already, quite rightly, permit Sikhs to wear turbans.)146

Moreover, Barry argues, for the many Sikhs in the construction industry, where protective headgear also is generally required, “the particular circumstances make the balance-of-advantage argument for an exemption rather powerful.”147 Similarly, Barry states that an employer’s ban on headscarves “is rightly to be regarded as a denial of equal opportunity,” even as he questions the strength of any firm religious requirement of headscarves for Muslim women.148 Whether the wearing of headscarves is a requirement or only a custom, he reasons, “to abandon a long-established custom” is “no trivial matter,” and “there is no non-trivial reason in support of a ban on headscarves.” The general principle Barry defends is that “culturally derived characteristics that do not demonstrably interfere with the ability to do the job cannot be accepted as a basis for job discrimination.”149 And Barry reaches a similar conclusion in his consideration of the 1989 French controversy over whether Muslim girls might wear a headscarf in school (the affaire du foulard): here, too, the “rule-and-exemption” approach may best reconcile the interests at stake. This pattern of pragmatic support for religiously (or at least culturally) asserted exemptions is striking. It seems to me as important as Barry’s refusal to credit the arguments as successfully invoking equality or religious liberty. Even if, as Barry says, a pragmatic “rule and exemption” approach is not “the panacea that it is commonly represented as by multiculturalists,” there seems reason to question his assertion that there may not be “too many other[]” cases in which the balance of advantages requires an exemption. 150 Yet Barry, in my opinion appropriately, is more reluctant to support exemptions when children’s welfare is at stake. He criticizes the U.S. Supreme Court’s 1971 Yoder decision, in which Amish parents sought exemption

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from compulsory school education beyond the eighth grade. According to Chief Justice Burger’s opinion for the Court, the parents argued that their children’s attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that, by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but . . . also endanger their own salvation and that of their children.151

The Court held that compelling the children to attend a public or private high school would unconstitutionally prohibit the parents’ (not the children’s) free exercise of religion and the parents’ right to direct the upbringing of their children.152 Barry identifies a “mismatch” between the rationale, which focuses on the parents’ rights, and “the content of the decision, which concerns children.” Other cases, Barry notes, have held that parental rights must sometimes yield to considerations of children’s welfare.153 Education should be such an area, Barry argues, with private schools and home schooling subject to “vigilant” state supervision.154 The error in the Yoder decision, according to Barry, is that it “assumes that Amish children need education only to become Amish.”155 But with twenty percent of Amish children leaving the group, Barry observes, this premise is mistaken. Similarly, while Barry sees some form of bilingual education as perhaps a sensible transitional system for immigrant children, he believes that existing programs of bilingual education may serve the interests of those who create and run them more than those of the children they are to serve. For example, New York responded to a court decision requiring the state to adopt some program in bilingual education, and the state’s response was to require bilingual education for all those whose English test scores were below the fortieth percentile, regardless of whether or not they were native English speakers.156 Although these programs are styled as transitional, Barry sees them as traps that lock students into inferior educational opportunities. He speculates: Rather than conceiving of [bilingual/bicultural education] as one possible mode of transition, to be compared for efficacy with ESL or “immersion” (of either the old-fashioned “cold turkey” kind or sophisticated recently developed programmes), it may be seen instead as a way of fostering Hispanic identity . . . . What happens to these children may be seen . . . as a way of restoring members of the ethnically defined community to their “roots” in their language and culture, and thereby stabilizing their identity as Hispanics.

In this way, Barry believes, government-sponsored multiculturalist programs tend to serve their designers’ interests in cultural preservation more than the interests of their putative beneficiaries.



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Barry’s broadest criticism of multiculturalism is that, as a “politics of difference,” it stands opposed to his preferred “politics of redistribution.”157 Against Kymlicka, he notes that American blacks stand entirely outside the organizing distinction between national minorities and voluntary immigrants; the difficulties they face receive only two pages of discussion in Kymlicka’s Multicultural Citizenship. And their “oppression,” Barry argues, principally concerns unequal access to material resources; it is not primarily cultural.158 Multiculturalism, Barry contends, both diverts focus from the problem of unequal material resources and undermines the conditions necessary for a successful coalition. By engaging in “turf wars,” multiculturalists “dissipate” the resources needed for “more broadbased causes.” “Not only does [multiculturalism] do nothing to change the structure of unequal opportunities and outcomes,” Barry concludes, “it actually entrenches it by embroiling those in the lower reaches of the distribution in internecine warfare.”159 Barry does not provide strong evidence for these broadest claims.160 And as mentioned, he is willing to countenance some of Kymlicka’s recommended exemptions from generally applicable requirements, on “pragmatic” grounds, when those requirements impose special hardship on particular groups. He seems to think that these concessions, however, should not be understood as statements of rights. In his view, there is a sharp difference between Kymlicka’s “group-differentiated citizenship” and his own idea of a “unitary republican citizenship.” “There should be only one status of citizen,” Barry says, “so that everybody enjoys the same legal and political rights.” And, underscoring: There should be no “special rights (or disabilities) accorded to some and not others on the basis of group membership.”161

5.2.2 Habermas on Multiculturalism Habermas positions himself in the debate as opposed to “extreme” or “radical” multiculturalism, echoing Barry’s objection that some strands of multiculturalist theory are improperly preservationist rather than potentially critical in their approach to cultures. A consequence of this view, Habermas argues, would be to “curtail the right of their individual members to choose a life of their own.”162 But exactly what he means to reject as “extreme” or “radical,” and exactly what in multiculturalism he intends to approve, is made more difficult by Habermas’s imprecise and sometimes inconsistent use of terms. For example, he speaks of both collective rights and cultural rights. Based on a position he defended in Facts and Norms—that rights in modern legal

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orders are necessarily individual rights163—one would assume that he would either deny that cultural rights are collective rights or reject cultural rights as inconsistent with the nature of modern law. His position, however, is not so straightforward. In some passages of his recent work, Habermas does reject the idea of collective rights while identifying them with multiculturalist positions. The “introduction of collective cultural rights,” he writes in a 2007 lecture, is a position of “extremist multiculturalists.” It is “a form of species protection for entire cultural groups” that “would in fact curtail the right of their individual members to choose a way of life of their own.”164 Here Habermas approvingly cites Brian Barry’s Culture and Equality.165 Elsewhere, Habermas characterizes “group rights” as both unnecessary and “normatively questionable.”166 But, in other passages, Habermas seems to argue that collective rights are necessary elements of a just multicultural society. He writes, for example: The aim of guaranteeing free access to the cultural background, social network, and communicative web of identity groups also accounts for the introduction of collective rights. Such rights strengthen the organizations responsible for the self-assertion of endangered cultures. Collective rights empower cultural groups to preserve and make available the resources on which their members draw in forming and stabilizing their personal identities.167

Habermas does not make clear here what kind of collective rights—or, better, to use Kymlicka’s term, group-differentiated rights—he has in mind. But, by referring to the strengthening of “organizations responsible for the self-assertion of endangered cultures,” Habermas seems to have in mind what Kymlicka calls self-government rights, or perhaps special representation rights. Yet in the next paragraph, Habermas seems to mean by “collective rights” the full spectrum of what Kymlicka calls “group-differentiated rights.” That is because one of the four conflicts that Habermas attrib­ utes to the “the introduction of collective rights” likely concerns what is called in the American context “affirmative action,”168 and two of the other conflicts seem to concern what Kymlicka calls “polyethnic rights.”169 But whatever Habermas means to include under the heading of “collective rights,” he seems in this discussion to treat them as necessary elements of a just multicultural society, albeit productive of certain characteristic conflicts. In other words, Habermas here emphasizes the ambivalence of “collective rights,” not their inconsistency with a liberal democratic order. In related passages, Habermas seems to relax his earlier assumption that the modern legal medium requires individual rather than collective rights.170



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And in still other discussions, Habermas suggests that “cultural rights” are the issue in multicultural societies, and they are not necessarily collective rights.171 Let us follow this last suggestion that we focus in the first instance on the idea of cultural rather than collective rights and try to make more precise what Habermas means. Cultural rights are, he says, to be distinguished from “social” rights,172 or rights of distributive justice. Violation of a cultural right is not discrimination, but instead, exclusion173 or denial of recognition.174 Incorporation of cultural rights, he says, involves a logic different from the social rights of the welfare state.175 Whereas resources can be redistributed through political use of the legal medium, by contrast “relations of recognition, extending across subcultural divides, can only be promoted indirectly, but cannot be directly produced, by means of politics and law.”176 In this sense cultural rights, while not necessarily inconsistent with the logic of modern legal orders, “run[] up against the structural limits of the legal medium.”177 So much, however, is primarily a negative definition. Habermas offers a general—and daunting—account of the purpose or point of cultural rights: “the guarantee of equal access to the patterns of communication, social relations, traditions, and relations of recognition that are required or desired for developing, reproducing, and renewing . . . personal identities.”178 By this Habermas means to invoke his account, developed in Theory of Communicative Action, of how personal identities are formed through communicative action, with communicative action understood as drawing on the “resources” of culture, society, and personality. Whereas this process may be relatively unproblematic for members of dominant groups, the same cannot necessarily be said for members of minority identity groups. Habermas mentions a couple of different ways in which cultural rights might assist this process of identity formation. First, and in Habermas’s view less problematic, is the granting of exceptions to generally applicable rules. As examples, Habermas mentions the following cases: Sikhs are permitted to wear their turbans on motorcycles and to carry their ritual daggers in public; Muslim women and girls may wear their “headscarves” in the workplace and in school; Jewish butchers are permitted to slaughter livestock and poultry according to kosher methods; and so forth.179

This sort of exception-granting, Habermas says, is “not a matter of a mysterious ‘inversion of the universal into the particular,’ only trivial instances

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of basic rights taking priority over ordinary laws or public safety regulations.”180 With this sympathy for the rule-and-exemption approach to what Kymlicka calls “polyethnic rights,” Habermas parts ways with Barry, arguing that exemptions are required by a principle of equality—and not just as a matter of pragmatic “balance of interests” argument. For example, he sides with the French Muslim schoolgirls in l’affaire du foulard, maintaining that by forbidding headscarves “on the secular ground that religion must be treated as a private matter to be kept out of the public domain,” the French officials offended an “imperative of impartiality.” Although he does not elaborate in detail, he seems to suggest that the rights at stake were not just those of the individual schoolgirls: The state, he says, intruded on “the legitimate claim to self-representation and public recognition of a religious minority.”181 Habermas appears also to endorse, as a matter of “neutrality” and “excluding intolerant conduct,” exemptions “from generally binding safety regulations” that permit Sikhs to “wear turbans and carry ceremonial daggers.”182 But he lists, as open questions for the courts as to “whose ethos” should be accepted and “when,” a variety of other claims that fit Kymlicka’s description of polyethnic rights.183 The second sort of cultural right—and one Habermas discusses at more length—involves collective rights. With “self-assertion rights,” Habermas says, “representatives of identity groups” are granted “enhanced authority to organize and administer themselves.” Habermas is less clear on examples of this kind of right, but he seems to mean roughly what Kymlicka means by “self-government rights.” Habermas mentions, as problematic cases of this kind of right, instances in which “religious law supplements or even replaces civil law, especially within the family”—and in which the religious law “is guarded and interpreted literally by guardians of orthodoxy (as it is in Islamic countries and in Israel, for example).”184 Although such rights may be problematic for Habermas, the reason is not a simple inconsistency of collective rights with a modern legal order. Habermas suggests an analogy between collective rights of group “self-assertion” and ordinary delegations of authority under a democratic constitution to “local authorities, provincial governments, or semipublic institutions.”185 As Habermas notes, however, standard delegations of constitutional authority are limited by constitutionally specified individual liberties, and so such delegations “cannot conflict with citizens’ basic rights”—that is, they may not permissibly be allowed so to conflict. Problems arise, however—and the analogy breaks down—when the groups whose self-assertion is buttressed by collective cultural rights do



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not “have an internal organization that satisfies liberal standards.” Here, conflicts may arise between constitutionally guaranteed basic liberties and cultural rights of “self-assertion.” Habermas characterizes the problem as arising “when the liberal state fulfills the conditions required to enable the reproduction of a cultural minority whose very existence would otherwise be threatened, and when it as a consequence accepts in return the violation of the basic rights of individual members.”186 Habermas seems to have in mind here what Kymlicka called an “internal restriction,” that is, the limitation of a group member’s liberty “in the name of group solidarity or cultural purity.”187 Habermas’s prime example of problematic “self-assertion” rights is the American Yoder case, discussed also by Kymlicka and Barry. As Habermas describes the case, “Amish parents were  .  .  .  allowed to withdraw their children from the ninth and tenth grades because they would otherwise be familiarized with subjects judged to be incompatible with the survival of the worldview and way of life of the religious community.”188 One might object that Yoder seems an example of Habermas’s first category of cultural rights, not the second—that is, a case in which the parents seek a religiously based exemption from generally applicable laws, not the outfitting of a community with collective rights of “self-assertion.” But Habermas is correct at least in pointing out the possible divergence in interest between the parents, who are seeking to maintain a traditional way of life against state interference, and the children, who might, if given the choice and sufficient information to make it, seek to find another way. Habermas does not make entirely clear whether he rejects the result in Yoder or whether he simply finds it a difficult and problematic case. But his discussion in another context makes clear his general approach to cases of collective rights of self-assertion: The Catholic Church has the right to exclude women from the priesthood, even though the equality of men and women has constitutional standing and is implemented in other sectors of society. The Church explains this employment policy by appealing to an essential element of the doctrine to which its pastoral mission is devoted. From the perspective of the liberal state, the principle of equality is not violated as long as members are not barred from expressing their dissent by leaving the group or by mobilizing counterforces within the organization itself.189

Realistic right of exit and the possibility of expressing dissent within the group seem to be Habermas’s minimum conditions for recognizing a collective right that is in tension with a basic individual right.

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In the Yoder case, of course, children lacked the realistic possibility of exiting the group—and the group, by controlling their access to education, was limiting their ability to determine whether children ever would wish eventually to exit the group. But in upholding the parents’ claim, the Supreme Court stated that, in addition to the right of free exercise of religion, it considered the “right of parents to direct the religious upbringing of their children.”190 The Court, in other words, did not assume children’s exit from parental and communal authority as a background right that children enjoy. For the Court, then, the tension Habermas identifies between individual and collective right disappears. For this reason, too, Yoder is a difficult case for illustrating Habermas’s view of cultural collective “self-assertion” rights. It would have been helpful if Habermas, in the work I have been discussing, had been able to consider with greater particularity more of the “countless cases” of tension between communal rights and basic individual rights. Instead, his attention seems to be less on the merits of particular conflicting claims and more on the general question whether collective rights imply a “contradiction in the idea of civic equality as such.”191 That he answers that general question in the negative indicates that Habermas has some sympathy for a multiculturalist position. What is difficult to assess is the strength of Habermas’s sympathy. As I suggested above, Habermas does distinguish his position from “strong multiculturalism.” By “strong multiculturalism,” Habermas seems to mean the idea that cultures are akin to legal subjects and that the state is obliged to ensure that cultures have the resources necessary for their survival. Against this position, Habermas argues that the survival of cultural groups depends primarily on individual members’ ongoing appropriation and reproduction of that tradition in their communicative interaction with others. For that reason, he maintains, the state is not in the position of ensuring that cultural groups are able to survive—or, as he puts it, “the survival of identity groups and the continued existence of their cultural background cannot be guaranteed by collective rights at all.”192 This analysis grounds Habermas’s insistence on the realistic possibility of exit and the possibility of internal dissent as minimum conditions for cultural collective rights of self-assertion: Collective rights can strengthen the cultural self-assertion of a group only if they also accord the individual members the latitude to use them realistically in deciding on reflection between critical appropriation, revision, or rejection. Freedom of association certainly already safeguards the voluntary nature of



After Between Facts and Norms group membership. But it is only the seal on a realistic right to exit. The guarantee of the internal latitude necessary to assimilate a tradition under conditions of dissent is decisive for the survival of cultural groups. A dogmatically protected culture will not be able to reproduce itself, especially not in a social environment replete with alternatives.193

In her work The Claims of Culture (2002), Seyla Benhabib defends a Habermasian approach to multiculturalism with more clarity than Habermas himself. Benhabib welcomes multicultural movements “to the degree to which they are movements for democratic inclusion, greater social and political justice, and cultural fluidity.” But she opposes attempts—by Kymlicka and others, she suggests194—to “maintain[] the purity or distinctiveness of cultures.”195 This is the “preservationist” impulse of some multiculturalists that Habermas rejects. Indeed, Benhabib rejects the idea, which she attrib­ utes to Kymlicka (and others), that cultures are “clearly delineable wholes” that are “congruent with population groups” and uncontroversially describable.196 Cultures, she writes, are “constant creations, recreations, and negotiations of imaginary boundaries between ‘we’ and the ‘other[s].’ ”197 The central point in Benhabib’s defense of a Habermasian approach is her emphasis not so much on formal political institutions as on “the political activities and struggles of social movements, associations, and groups in civil society.”198 The role of cultural rights, Habermas means to argue, is to create space for this political activity, and in the process to make possible critical encounter with one’s own tradition. Habermas, together with Benhabib, insists on intracultural dialogue in civil society and the informal public sphere, not the closing off of cultures to one another199—or, to use Habermas’s other term, not the segmentation of cultures.200 Notwithstanding the plurality of cultures in a given society, Habermas insists that there be a single political community. He understands the unity of this community to be established by the constitutional norms, such as equality and dignity of the person, that underwrite and justify the group-based exemptions from general rules that are part of Kymlicka’s “polyethnic rights.” In Habermas’s clearest formulation: Multiculturalism that understands itself in the right way is not a one-way street to the cultural self-assertion of groups with their own collective identities. The equal coexistence of different forms of life must not lead to segmentation. It calls for the integration of all citizens and the mutual recognition of their subcultural memberships within the framework of a shared political culture. The citizens as members of society may legitimately cultivate their distinctive cultures only under the condition that they all understand themselves, across subcultural divides, as citizens of one and the same political community. The

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After Between Facts and Norms same constitutional basic norms in terms of which cultural exemptions and authorizations are justified also define their limits.201

Here as elsewhere, Habermas’s approach could be called “procedural” rather than “substantive.” In his remarks on multiculturalism he warns of the danger that a majority culture would infuse “cultural substance” into an essentially procedural constitution. That is Habermas’s diagnosis of the French headscarf case. There, he suggests, a “republican” and “secularist interpretation of the constitution” (Habermas elsewhere uses the term laicist) “violate[d] the required neutrality of the state.”202 At the same time, he insists on a need for “liberalization” of subcultures to allow all individuals to engage in full participation. The consensus required for a liberal democratic order is no longer for Habermas the relatively thick consensus of Theory of Communicative Action, where a society is integrated by shared substantive norms and values. The catchphrase Habermas uses for the needed basis of social integration is constitutional patriotism.

5.2.3 Constitutional Patriotism While constitutional patriotism is a key term in Habermas’s recent work, his explication of the idea is relatively sparse. As a way into what Habermas means by the term, I rely on Jan-Werner Müller’s insightful Constititional Patriotism (2007), then look briefly at Habermas’s debate with Frank Michelman. In the next section, I turn to how Habermas puts the concept of constitutional patriotism to work in his account of the possibilities for democracy beyond the nation-state. As Müller explains, the idea of constitutional patriotism first developed in West Germany and assumed prominence during the “historians’ debate” of 1986—a debate over how to understand National Socialism and the Holocaust both in German history and, more broadly, in European history. Habermas was a central participant in that debate, arguing against what he saw as an attempt by conservative historians to restore a “conventional form of national pride” in place of more critical understandings of the German past.203 The main idea of constitutional patriotism, in Müller’s formulation, is “that political attachment ought to center on the norms, the values, and, more indirectly, the procedures of a liberal democratic constitution” rather than shared ethical values or a particular national tradition.204 While this conception obviously speaks to the concerns of a liberal democratic constitutionalist in postwar Germany, Habermas



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defends it as a conception attractive to multicultural and “postnational” societies more generally. One standard criticism of constitutional patriotism is that it is “bloodless,” a sort of “professor’s dream.”205 If the constitutional principles and values that are to be a basis for the social bond are universal, how can constitutional patriotism account for attachment to a particular polity?206 Müller addresses this challenge forthrightly, acknowledging that constitutional patriotism always requires “supplements of particularity” to universalist principles.207 The supplements Müller identifies in constitutional patriotism’s West German origins are “memory” with respect to the Nazi past and “militancy” with respect to present-day “enemies of democracy.”208 And constitutional patriotism in general—not just its early West German instantiation—requires supplementation in two additional senses. First, Müller observes, constitutional patriotism in general depends on a background theory of justice. The theory Müller identifies is “centered on the idea of sharing political space on fair terms.”209 Second, Müller concedes, to meet a requirement of specificity—to answer, that is, the question why we should be attached to one polity rather than another if the principles are universal 210—constitutional patriotism largely depends on existing political boundaries. As Müller puts it: Constitutional patriotism is “not a free-standing theory of political boundary formation.”211 In both these ways, constitutional patriotism is inherently dependent on conceptions and sources of motivation outside itself—although as to the problem of presupposing political boundaries, constitutional patriotism is in the same position as are other liberal theories.212 In analyzing the structure of constitutional patriotism, Müller usefully distinguishes among the “object of attachment,” the “mode of attachment,” and the “reasons for attachment.” In this section, I want to focus only on the object of attachment. One would first assume that the object of attachment for a theory of constitutional patriotism would be, simply, the constitution. And given the “requirement of specificity”—the requirement that a theory of constitutional patriotism explain why we should be attached to one polity rather than another—one would think that the object of attachment would be similarly specific: the constitution of this rather than that country. But Müller’s formulations of the object of attachment are more abstract. Rather than tracking a particular constitution, Müller’s formulations seem to track instead the abstract background theory of justice earlier identified. Constitutional patriotism’s object of attachment, Müller says, is

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“the idea of individuals recognizing each other as free and equal and finding fair terms of living together.”213 Following Frank Michelman, Müller holds that given inevitable interpretive disagreement about constitutional meaning, only the idea of the constitution, and not a concrete, particular, historical constitution, can be the object of attachment for constitutional patriotism.214 And Michelman attributes this idea to Habermas.215 Michelman’s formulation—that attachment must be to “the idea of the constitution as opposed to the thing itself ”—seems to me misleading. Immediately after stating that attachment must be to the idea of the constitution rather than “the thing itself,” Michelman hastens to add that neither he nor Habermas can be “speaking only of people’s attachment to some purely abstract, ideal notion of a constitution.”216 The two formulations, appearing as they do on a single page, are difficult to reconcile. Michelman and Müller are right that if the idea of constitutional patriotism is to explain the integration of modern pluralist, multicultural societies—societies divided by great ideological and interpretive (as well as material) differences—then that idea must have some way of accounting for disagreement, even profound disagreement. As both Müller and Michelman note, one function of “constitutional patriotism” is to provide the losers in those disagreements “with a genuinely moral motivation to maintain the constitutional regime as a whole”—or, less abstract, with a reason to consent to their particular defeat.217 But Habermas’s idea of procedural legitimation seems designed to address exactly that problem: We accept outcomes we substantively disfavor, provided that procedures we accept as legitimate have been followed. Those procedures are the ones specified in the constitution we have, not a more abstract idea of the constitution. Constitutional patriotism, it would seem, need not posit attachment to the idea of the constitution rather than “the thing itself ” to explain and justify losers’ consent—at least not in ordinary cases. But Michelman and Müller are concerned with something deeper than disagreement in ordinary cases of constitutional application. Both question (as did I in Chapter Three) the sharp distinction Habermas would draw between application and justification. As Michelman explains, disagreement over how to interpret a fundamental constitutional principle, such as due process or equal protection, may be so basic that we cannot plausibly say that the two sides accept the same principle.218 The contending parties may agree on the words to be interpreted, but for them the words designate different principles.219 The problem deepens when we realize that procedural principles—even Habermas’s basic democracy- and



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justification-defining principles—are not immune from such fundamental disagreement. The strategy of legitimation through procedure, then, cannot offer an unproblematic escape from this problem of “reasonable interpretive pluralism”220—or, as Habermas puts it, “radical interpretative pluralism.”221 In saying that constitutional patriotism requires attachment to the “idea” of the constitution rather than “the thing itself,” Michelman and Müller mean that full and deep substantive consensus about constitutional principles cannot be expected in modern multicultural, pluralistic societies. For each, the solution to the problem of radical pluralism must lie elsewhere. For his part, Michelman refers to “constitutional identity,” and in my view his proposed solution is surprising. Different countries, Michelman says, may have different constitutional identities that explain disagreement over the same principle. In the United States, for example, “constitutional law strongly protects freedom to utter racist hate speech while in Canada it does not.” According to Michelman, the difference indicates not a difference in constitutional principles between the two countries but only “that the two countries have somewhat differing constitutional identities.” And this point, he says, is at “the core of ‘constitutional patriotism’ ”: “Constitutional patriotism,” it appears, is the morally necessitated readiness of a country’s people to accept disagreement over the application of core constitutional principles of respect for everyone as free and equal, without loss of confidence in the univocal content of the principles, because and as long as they can understand the disagreement as strictly tied to struggles over constitutional identity.222

With respect to Habermas’s proposed procedural consensus, Michelman remarks that “Habermasian procedure, it appears, is very much a matter of what we sometimes call substance.” Habermas, Michelman points out, has argued that basic human rights are a precondition for the legal institutionalization of citizens’ democratic practice, and of the “discourse ideal” of democratic willingness to justify norms to one another Michelman asks, “Is that ideal not a value?” The “convergence” underlying a commitment to democratic procedure is, in Michelman’s characterization, essentially ethical and not merely “procedural.”223 I say that Michelman’s proposed solution is surprising because it seems to rely on the very terms Michelman has challenged in Habermas’s account. After arguing that radical interpretive pluralism means disagreement not just about application but about constitutional essentials themselves,

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Michelman uses the notion of constitutional identity to reinstate the distinction between application and content that he has just questioned. In place of procedural consensus, Michelman sees constitutional patriotism as rooted in a substantive consensus over shared ethical values. More persuasive, in my opinion, is Müller’s explication of constitutional patriotism as rooted in a “constitutional culture.” He notes the common usage of “constitutional identity” but instead opts explicitly for “constitutional culture” to “underline[] that we’re not dealing with something homogeneous or even harmonious.” Rather than conceive of constitutional patriotism in terms of consensus over values or principles, Müller sees instead in constitutions the possibility of a space or “site for intense and yet reasonable moral and political contestation.” In these cases of reasonable disagreement, Müller writes, a constitutional culture provides a “language to contest majority decisions” and “a genuinely moral motivation to maintain the constitutional regime as a whole.” Under conditions of radical interpretive pluralism, a constitutional culture characterized by constitutional patriotism can both enable and contain disagreement. This “contained conflict,” Müller writes, “can in fact also have an integrating and stabilizing effect.”224 In his brief comments on the problem of radical interpretive pluralism, Habermas sides more with Müller than with Michelman. Habermas criticizes Michelman’s “recourse to a kind of communitarian solution”225 that presupposes consensus about “a set of ‘thick’ ethical beliefs.” “Even if the classical European nation-state had fitted this image,” Habermas writes, “in view of the present pluralism of our more or less multicultural and deeply divided societies, it is no longer plausible to adhere to such a requirement of a strong value consensus.”226 While Habermas notes his agreement with Michelman that “a common practice” is required to handle the problem of radical interpretive pluralism,227 he resists—as he did in Between Facts and Norms—a Michelmanian solution that he reads as inappropriately “ethical” and insufficiently “procedural.”228 Müller uses the idea of a constitutional culture to explain how Habermasian constitutional patriotism can answer the “specificity” question— the question of how, if the constitutional patriot’s principles are universalist, she or he should be committed to one polity rather than another. Constitutional cultures are individuated, Müller suggests, in that “the kinds of conversations and disagreements that characterize” them “are necessarily related to particular national and historical contexts.”229 To some extent, of course, this is correct: Recall, for example, Michelman’s



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observation about the different American and Canadian understandings of whether and how far racist speech should be constitutionally protected. But of course, despite the different answers the two countries’ high courts have given, one finds similar arguments pro and con on either side of the border. Still, Müller’s point is that different institutional systems, taken together with different constitutional texts and histories, support different constitutional conversations. In that sense, Even constitutional patriots . . . do not come from nowhere. They find themselves entangled in—and hopefully thriving on—particular cultures, and above all, face, sustain, and re-work particular constitutional cultures which are trying to express universal norms of justice and fairness in specific contexts. The best means to be faithful to universal norms and to render them actionable is to enter and enrich the ongoing conversation about a given political culture; and constitutional patriots remain faithful to the conversation not least by keeping faith with the ongoing disagreements which might characterize that conversation.230

In constitutional patriotism, Habermas says, “citizens make the principles of the constitution their own not merely in an abstract sense but also in the concrete historical context of their respective national histories.”231 In the next section, I examine Habermas’s discussion of the possibilities for constitution making and democracy beyond the nation-state. As Pablo de Grieff observes, Habermas’s notion of constitutional patriotism is designed to account for integration not just of existing nation-states (addressing the circumstance of multiculturalism) but also for integration in a constitutional democratic system beyond the nation-state. This latter project of integration will be easier to the extent that existing national constitutions share common principles and commitments.232

5.3 de mocr ac y a n d t h e “pos t n a t ion a l c ons t el l a t ion” The analysis of Between Facts and Norms was implicitly keyed to the framework of nation-states.233 In the years since the 1992 publication of that book, Habermas has begun to consider how that framework might be extended, going so far as to speak of the “postnational constellation.”234 This section examines Habermas’s various post-1992 essays235 with a focus on two strands of his thought. The first concerns the possibilities for democracy beyond the nation-state, particularly in the European Union (EU).

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Especially on the question whether the EU should adopt a constitution— and, after that attempt failed, whether the Lisbon Treaty is a proper substitute—Habermas has been very much a public voice. The second strand of thought I consider is Habermas’s attempt to appropriate and transform the project Kant established in his 1795 essay Perpetual Peace. The catchwords for this line of thought are “the constitutionalization of international law” and “politically constituted world society without a world government.”

5.3.1 Democracy beyond the Nation-State: The European Union The starting point for Habermas’s venturing beyond the nation-state model of Between Facts and Norms is his coming to terms with globalization. Habermas understands globalization as, in the first instance, a specifically capitalist economic process236 (albeit one created by “deliberate political decisions”237), characterized by expanding trade, increasingly influential transnational corporations with worldwide production capacities, increased direct foreign investment, expanded and intensified networks of communication, and “the growing autonomy of financial circulatory processes, which assume a dynamic of their own distinct from the real economy.”238 If ever there was such a thing as a purely national economy, Habermas argues, there is not one now.239 With the “denationalization of the economy”—and by that Habermas means “the increasing global interconnection of financial markets and industrial production itself ”—“national politics loses its control over the general conditions of production and with it any leverage for maintaining [a nation’s] standard of living.”240 Habermas observes, of European economies in particular, that this denationalization and “locational competition” is producing high unemployment and “the marginalization of a growing minority for the sake of international competitiveness.”241 Only transnational or supranational institutions, according to Habermas, could preserve the “essentials” of the European welfare state and prevent formation of a more or less permanent underclass.242 In each of his treatments of the issue, Habermas identifies a list of new “border-crossing” problems that defy national regulation, including “risks of high technology and arms trafficking”; international drug trafficking; “worldwide organized crime and the new decentralized terrorist networks”; transnational environmental problems, including acid rain,243 climate change, and water supply; “the pressure of the massive streams of migration”; “the distribution of scarce energy resources”;244 and worldwide financial crisis.245 In light of “the growing interdependencies of a



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world society,” Habermas suggests, we must question the basic premise underlying traditional notions of sovereignty: “that national politics, circumscribed within a determinate national territory, is still adequate to address the actual facts of individual nation-states.”246 Some of the reasons Habermas presents for exploring governance beyond the nation-state are primarily functional. “Continental regimes,” like the EU, can serve as a “counterweight” to the sole global superpower and, in Habermas’s view, the misguided and destructive foreign policy ventures it has pursued, particularly under the second President Bush.247 Habermas invokes the “counterweight” idea also in connection with processes of economic globalization:248 Continental regimes are necessary, he says, to avoid destructive races to the bottom in battles of locational competition.249 More generally, continental regimes could fulfill coordination functions not suitable for the United Nations.250 But the crisis tendencies Habermas identifies are not just economic and environmental. He sees also a crisis in the solidarity among citizens251 that sustained the democratic constitutional state.252 No analogous solidarity, in his view, yet can be drawn on at the transnational or supranational levels. Such transnational or supranational regulation as now operates is accordingly largely nondemocratic. The prime challenge in Habermas’s view is thus to produce forms of democratic governance beyond the nation-state, even though at present the sustaining forms of solidarity are undeveloped. Notwithstanding the difficulties inherent in that project, in Habermas’s view there is no other palatable possibility: The postnational constellation confronts us with an uncomfortable alternative: either we must abandon the demanding idea of the constitution as a selfadministering association of free and equal citizens and resign ourselves to a sociologically disillusioned interpretation of constitutional democracies which have been reduced to mere facades; or we must detach the fading idea of a democratic constitution from its roots in the nation-state and revive it in the postnational guise of a constitutionalized world society.253

Habermas, of course, is unwilling to abandon the idea of the democratic constitution. And so he must investigate the possibilities for democracy beyond the nation-state. While he repeatedly makes clear that he does not place his democratic hopes in the possibility of a world government, he sees in the development of continental regimes “the genuinely utopian moment of a ‘cosmopolitan condition.’ ”254 The presently most advanced venture toward democracy beyond the nation-state is the European Union. In the political essays he has published

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in book collections since Between Facts and Norms, and in newspaper articles and public addresses, Habermas has devoted a great deal of attention to the EU project, particularly with an eye toward addressing its muchdiscussed “democratic deficit.”255 One widely perceived obstacle to the EU’s democratization has been the lack of a European “demos.” Habermas has expended considerable energy in combating this position. One of his lines of argument attacks the idea that national identities, as opposed to a European identity, are natural, prepolitical entities defined simply by commonalities of language and descent. Instead, Habermas contends, they are partly the product of considerable mythmaking and tradition construction by intellectuals and popular social movements.256 With respect particularly to the case of the German language, he argues, “There is nothing originary about the homogeneity of the linguistic community; it [has] require[d] a leveling of different dialects in favor of a written language imposed by administrative means.”257 And “the idea of national history,” he writes, “was an academic construct made possible by historians, folklorists, linguists, and literary critics.”258 “Collective identities,” he says, “are made, not found.”259 The idea that national identities are prepolitical, Habermas argues, obscures the fact that they have developed partly as the products of constitution-making and constitution-developing processes.260 The “nub of republicanism,” he contends, lies “in the fact that the forms and procedures of the constitutional state, together with the democratic mode of legitimation, simultaneously forge a new level of social integration.”261 This process was behind the development of the nation-state,262 and Habermas reasons that there is no “necessary socio-ontological reason why solidarity between citizens and the regulatory capacity of the constitution should stop at national borders.”263 In fact, Habermas goes further to suggest that development of a constitutional state that transcends existing nation-state borders is an imperative rooted in both multiculturalism and globalization. And this state must be democratic: The challenges of “multiculturalism” and “individualization” both  .  .  .  demand the end of the symbiosis between the constitutional state and “the nation” as a community of shared descent, and a renewal of a more abstract form of civil solidarity. . . . Politics has to catch up with globalized markets, and has to do so in institutional forms that do not regress below the legitimacy conditions for democratic self-determination.264

These republican and functionalist lines of reasoning gave Habermas hope that a European constitution, if adopted, would have a “catalytic effect.”265 In 1995 he wrote:



After Between Facts and Norms Europe has been integrating economically, socially, and administratively for some time and in addition can base itself on a common cultural background and the shared historical experience of having happily overcome nationalism. Given the political will, there is no a priori reason it cannot create the politically necessary communicative context [for European democracy] once the constitutional basis for such a context has been laid down.266

Habermas was among the most prominent advocates of the Treaty Establishing a Constitution for Europe.267 But in 2005 the Treaty failed to receive the required unanimous member-state approval when French and Dutch voters rejected it in separate referenda. After a two-year official “period of reflection,” and after negotiations among the member states, the Treaty of Lisbon was presented as a substitute. The language of “constitution” was dropped (as were the flag and national anthem); the document was considerably shorter; and concessions (particularly to Poland and the United Kingdom)268 were made. This time twenty-six of the twenty-seven member states opted to proceed by parliamentary vote rather than referendum. Parliamentary votes went more or less smoothly,269 but in June 2008 the voters in Ireland—the sole country employing the referendum—rejected the Treaty. After a series of negotiations and concessions from the EU, the Treaty was put before Irish voters again, and this time they approved. The Treaty went into effect on December 1, 2009. Habermas has criticized sharply the process by which the Treaty of Lisbon was ratified. As he had suggested with respect to the failed Constitution, Habermas pressed for the Treaty of Lisbon to be put before national voters rather than the political elites in each nation.270 His proposal, in a November 2007 lecture, was to present to voters in each of the member states a referendum, conducted under uniform law, in which “the question to be decided would be whether they want a politically constituted Europe with a directly elected president, its own foreign minister, a stronger harmonization of tax policy, and an alignment of their respective social policies.” Unlike the actual ratification process, Habermas’s proposal would not have required unanimity among member states before any legal change could be effected. At the same time, he would not have imposed change on any member state whose electorate voted “no” in the referendum. Instead, “the proposal would be deemed accepted if it succeeded in winning the ‘double majority’ of the states and of the votes of the citizens,” but “the referendum would be binding only on those member states in which a majority of the citizens voted for the reform.”271

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The process actually followed for ratification, both with the Treaty Establishing a Constitution for Europe and with the Treaty of Lisbon, exemplified a “convoy” model “in which the slowest vehicle determines the speed.”272 By contrast, Habermas’s proposal of “graduated integration” or “a Europe of different speeds” would have allowed that at least for a period of transition there might develop a “Europe of core and periphery.” He expressed confidence that the referendum would attain the required double majority, and in his prediction voters in the more reluctant nations would feel pressure to join the core: Faced with the “unpalatable alternative” of remaining outside the reformed Union, he predicted, they “would also be inclined to align themselves with the center.”273 Habermas’s language criticizing the undemocratic character of the Lisbon ratification process is extraordinarily strong. While the “intention” of both the Constitution and the Lisbon Treaty was “to promote a higher level of participation from citizens across national frontiers,” he observes, there was no “mobilization of citizens during the constitution-founding process”: Instead of this, the slimmed-down reform treaty now definitively sets the seal on the elitist character of a political process which is remote from the populations. The negotiation procedure, the failure to conduct referenda even where they are actually called for, the bizarre rejection of the already established communal symbols (such as the flag and the anthem), finally the national exclusion clauses and the deflationary publicity campaigns employed by some of the governments to sell the result of Lisbon at home—all of this reinforces the established political modus operandi and renders conclusive the fearful decoupling of the European project from the formation of opinion and will by the citizens. Never before, at turning points in the unification process, has European politics been conducted in such a blatantly elitist and bureaucratic manner as on this occasion. In this way the political class is sending the signal that it is the privilege of the governments to decide the future destiny of Europe behind closed doors.274

As to the substance of the Lisbon Treaty, Habermas is far from fully satisfied. He praises, as an appropriate efficiency-creating measure, the introduction of qualified-majority legislative voting procedures (rather than unanimity) in the Council of Ministers.275 While Habermas has not to my knowledge commented explicitly, likely he would approve of the new mechanism that allows member-state parliaments, whose democratic credentials are presently stronger than those of EU institutions, to participate on a consultative basis in EU legislation.276 Further, Habermas has stated that he approves in principle the strengthened powers of the European



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Parliament. But even there, he complains that citizens will “derive no benefit from a formally strengthened status of the Parliament” without deeper political change in the Union. The political change Habermas envisions, it would seem, could not be accomplished solely and directly by treaty modification or even a formal constitution. What is required, he writes, is that “the usual spectrum of opinions and relevant issues within the national public spheres [must be] broadened and . . . the public spheres [must] become responsive to one another.”277 Habermas has been making similar suggestions since before the European Constitution was proposed. They come straight from the “model of the circulation of power” that Habermas proposed in Between Facts and Norms. There, Habermas specified the following necessary conditions for genuine (rather than merely formal) democracy: (1) links between the formal decisionmaking institutions of the political system’s core, on one side, with the peripheral political public sphere; (2) a social basis for the political public sphere in “vibrant” voluntary associations of civil society; and (3) a common democratic political culture that meets the political system halfway. The first problem Habermas faces is that presently each of these presuppositions is lacking. There is at present, he allows, no global or even European political public sphere.278 Nor is there yet a network of voluntary associations that could be called world or even European civil society.279 Further, Habermas admits (though with less emphasis than skeptics of the European Union) there is no strongly developed European political identity or consciousness280—at least not in any form comparable to national political identity and consciousness. A second problem is that each of these presuppositions of democracy seems to presuppose the others—and Habermas admits the problem forthrightly. Development of a European political public sphere depends upon a social basis in Europe-wide civil society, he says,281 but, at the same time, a pan-European civil society requires a Europe-wide political public sphere.282 A developed European common political identity, Habermas allows, presupposes both a working European public sphere and a panEuropean civil society,283 but the relation of presupposition is mutual.284 Habermas, recall, had supported a European constitution as a “catalyst” for dealing with these difficulties. But the constitution died in 2005, and, in view of his critical comments about the ratification process, Habermas does not seem to see the Lisbon Treaty as likely “catalytic.” With respect to the absence of a specifically European public sphere, Habermas has repeatedly noted that it is not as though one needs to be

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built from scratch. What is required, instead, is that existing national public spheres be mutually open to one another in the right way.285 Habermas uses various metaphors to describe this relation. In the first, he speaks of “interlinked national public spheres” in which discussion can be “synchronized.”286 He makes the electronic undertones of the metaphor explicit when he writes that a European public sphere “can arise only insofar as the circuits of communication within the national arenas open themselves up to one another while themselves remaining intact.”287 In different metaphors, he suggests that there must be “mutually translated processes of communication within the national spheres” and an “osmotic[]” absorption of issues. He rejects what he calls the “multilayered cake” conception in which the European public sphere would constitute “a higher level of communication, with its own European-wide media operating in a second language.”288 Existing national public spheres could become more mutually responsive, he says, without somehow “constructing a supranational public sphere” and without “drastic changes in the existing infrastructure.”289 His most extended diagnosis of the problem makes clear that the key features are an explicit focus on all-European issues, as opposed to their approach through the proxy of national issues and figures, and a synchronized set of discussions: Major hurdles undoubtedly remain. A constitution will not be enough. It can only initiate the democratic processes in which it must then take root. Since agreements between member-states will remain a factor even in a politically constituted Union, a federal European state will, in any case, be of a different calibre than national federal states; it cannot simply copy their legitimation processes. A European party system will come about only to the extent that the existing parties, in national arenas at first, debate the future of Europe, discovering in the process interests that transcend borders. This discussion must be synchronized throughout Europe in interlinked national public spheres; that is, the same issues must be discussed at the same time, so as to foster the emergence of a European civil society with its interest groups, nongovernmental organizations, civic initiatives, and so forth.290

Habermas recently has given extended consideration to the idea of the public sphere in his essay “Political Communication in Media Society: Does Democracy Still Have an Epistemic Dimension? The Impact of Normative Theory on Empirical Research.”291 This account develops and in some ways refines the analysis of the public sphere presented in Between Facts and Norms. Unfortunately, its prime focus is on “the political role played by national public spheres in the liberal constitutional states of the West,”292 with a few suggestions at the end as to how the idea he develops



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could be transposed to the Europe-wide and global levels. Nonetheless, his new account of the public sphere is worth considering. Whereas Habermas’s tripartite schema of Between Facts and Norms distinguished among liberal, republican, and procedural models, this recent essay uses a schema of liberal, republican, and deliberative theories of democracy.293 As before, he associates the liberal model with an emphasis on private autonomy and the republican model with an emphasis on public autonomy; the deliberative model, as he said of the procedural model, comprehends both. And the deliberative model is in his view uniquely qualified to comprehend present-day societies. Interestingly, given the widely held perception that deliberative conceptions are unrealistic and out of touch with present social complexity, Habermas claims that deliberative theory excels in its ability to “relat[e] . . . strong normative ideas to presentday social complexity.” This is so, he says, because of “the revolution in electronic communication.”294 His idea seems to be that (for reasons explained in the following pages) the deliberative model is well attuned to communication that does not take place face-to-face. As before, Habermas understands the public sphere as intermediary in a number of ways: between state and voters,295 between state and society,296 and (as periphery of the political system) between the “core” of state institutions and the political system’s environment of civil society.297 He uses also some of the same metaphors that he used in Between Facts and Norms: The public sphere is a “sounding board” for “society-wide” problems first discussed in civil-social associations298 and a “filter”299 or “filter-bed” from which emerge “the reasonable elements of opinion formation” in “the murky streams of political communication.”300 The public sphere, he emphasizes, is “reflexive.”301 The “elites” who participate in public-sphere communication “absorb impulses” from civil-social communication and “send them back in, a reworked form, to the public of voters.” In this way the public sphere produces “reflected public opinions”302 that come both from “above” (from political elites) and from “below” (from civil society).303 Participants in public-sphere discussion observe and comment on “what they perceive as ‘public opinion’ ”—and, in so doing, participate in the process of generating public opinion. The public sphere is thus a central part of Habermas’s revised model of the democratic process—a model corresponding to what Between Facts and Norms called “the model of the circulation of power.” He now describes the public sphere as approached from three different “angles”: from the political system’s “center” (the state’s “system of offices”), from “functional

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systems” (the economy, of course, but Habermas does not specify another “functional system”), and from “civil society.” Different actors enter the public sphere from these directions: From the political system’s center, we see politicians and political parties, from the functional systems we see “lobbyists and special interest groups” as “representatives” of the systems, and from civil society we see “advocates, public interest groups, churches, intellectuals, and non-governmental organizations.”304 Also in the publicsphere mix are journalists—with the direction from which they enter left unspecified. The difference from Habermas’s prior model is that in the earlier rendition Habermas saw two groups of the above personnel as occupying the outer periphery of the political system—not specifically the public sphere—with the functional systems’ representatives described as political-system “customers” (presumably of government largesse) and the civil-social figures as political-system “suppliers” (presumably of ideas or normative insights). Politicians and political parties occupied the political system’s center, not the public sphere. The various public-sphere actors that Habermas identifies all must operate through the mass communications media if their efforts are to have influence. Habermas calls the mass media the “infrastructure of the public sphere.”305 From one point of view, media-based communication suffers from two “deficits” or “defects” that are relevant to a theory of democracy. First, it “lacks the procedural constraints to which face-to-face negotiations in political institutions such as courts or parliamentary committees are subject.” It lacks, according to Habermas, “standards of discursive quality, or even representativeness.” Second, it lacks the two-way, reciprocal exchange that is part of Habermas’s idea of discourse and communicative rationality. In media-based communication we do not find “an egalitarian exchange of opinions and claims.”306 Self-consciously invoking a theatrical metaphor and analogy, Habermas writes that the media experts and the politicians dominate in “the dramaturgy of the public sphere.”307 Thus, in the public sphere, Habermas sees forms of communication that hardly seem to fit his discourse theory or the deliberative model of politics. He will have to provide reasons, nonetheless, that a deliberative form of democracy can take hold. He approaches this task by, first, extending the notion of power he developed in earlier work. For present purposes, he sets out four different types.308 “Political power,” he says, “inherently requires legitimation,” and in the constitutional state an especially “demanding form” is required: “the reasonable agreement of all citizens to the principles and procedures



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of the political decision-making process.”309 This formulation, in my view is too strong: It confuses, or at least threatens to confuse, the hypothetical unanimity Habermas has required in the past with actual unanimous agreement. (I have already criticized even the requirement of hypothetical unanimous agreement.) As before, Habermas identifies also “social power,” which “rests on status within a stratified society and is generally attached to positions within functional systems.” A special form of social power, and “the dominant form in capitalist societies,” is “economic power.”310 A central concern of democracy is to control the conversion of social (particularly economic) power into political power (though administrative power might be the better term here). The preceding three types of power echo Habermas’s earlier analysis. The innovation in Habermas’s typology is the notion of “media power.” This form of power is “based on the technology and infrastructure of mass communication” and exercised by “reporters, columnists, editors, publishers, directors, and producers.” It operates through the selection and framing of content in media presentations. Habermas suggests that its magnitude can be “measured by the resonance which a program generates in the public sphere.”311 So described, the notion of media power is not an inherently critical or even normative concept. All content must be presented and framed. And the idea of “resonance” is neutral as to the normative desirability of that resonance. Habermas begins to introduce a critical dimension with the requirement that the media be editorially independent “from pressure exercised by politically, economically, and socially powerful actors.”312 Second, “civil society must also enable its citizens to participate in an inclusive process of public opinion formation.”313 In other words, media power must not overwhelm the communicative power that emerges from civil-social discussion and citizen participation in the public sphere. As one example of insufficient media independence, Habermas cites the general failure of the American media, including the New York Times and other members of the “quality press,” to examine critically the governmentprovided “information” during the 2002–2003 buildup to the Iraq invasion. Because politicians and political parties are “the most important suppliers” of “political events, news, and commentaries,” the danger of improper government influence on coverage is ever present. Habermas identifies also as a form of insufficient independence “the media’s lack of distance from associations and organizations representing economic or other special interests.” This undue influence, Habermas writes, is “less spectacular but

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more frequent.”314 A special case here is when media barons develop political ambitions. (Habermas names both Rupert Murdoch and Silvio Berlusconi.) While Habermas identifies as a danger the “colonization of the public sphere by market imperatives,”315 he cautions that not just any linkage between the market and communications media is to be criticized. In the eighteenth century, Habermas maintains, “the reorientation of the production and distribution of cultural products to the conditions of market exchange” had at least in part an “emancipatory effect.” The phenomena Habermas criticizes are the “redefinition of political questions in terms of the categories of advertising,” “the personalization of serious debates, the dramatization of events, the crude simplification of complex matters, and a polarizing exaggeration of conflicts.” In this “infotainment,” Habermas argues, we have a confusion between modes of communication. The critical standard Habermas suggests is the following: It is only when the functional imperatives of the market interfere with the “internal logic” of the production and presentation of messages and programs in broadcasting that one mode of communication is surreptitiously replaced by another. Infotainment is one of the catchwords for the adjustment of political discussion to the style and substance of entertainment.316

One would think that the Internet would at least begin to address two problems Habermas identifies in the media system. The first is “selective access to, and uneven participation in, media-based political communication.”317 The second is the “asymmetric structure” of non-Internet media that doesn’t allow users to “talk back”318—or, to use a more usual Habermasian term, exchange roles of speaker and addressee. (As to a third problem Habermas mentions—the lack of face-to-face interaction, with an accompanying absence of “standards of discursive quality, or even representativeness”319—the Internet scores less well.) After early dismissal of the Internet’s democratic possibilities,320 Habermas more recently has recognized that Internet communication “seems to counterbalance the weaknesses associated with the anonymous and asymmetrical character of mass communication.” It allows “unregulated exchange between partners who communicate with one another as equals, if only virtually.” In Internet use Habermas sees not just “inquisitive surfers” but also the revival of an “egalitarian public of reading and writing conversational partners and correspondents.”321 But at this point Habermas begins to reverse field. Internet communication, he says, has “unequivocal democratic merit” only with respect to authoritarian societies, where “it undermines censorship by authoritarian



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regimes which try to control and suppress spontaneous public opinions.” Matters are different in “liberal regimes”: Here the emergence of millions of “chat rooms” scattered throughout the world and of globally networked “issue publics” tends rather to fragment the huge mass public, which in the public sphere is centered on the same issues at the same time in spite of its size.

And here Habermas revives his earlier diagnosis and decries the Internetcaused disintegration into “fragmented groups.” With the “centrifugal tendencies” of the Internet, he says, “The existing national publics seem to be undermined rather than reinforced.” This is because one problem he identifies with Internet communication is the same one he attributes to the insufficiently linked national public spheres of Europe: a lack of synchronization, which if present would have speakers and audiences addressing the same issues at the same time. This problem, he seems to think, is addressed only during times such as “election campaigns,” when “interest and support” can be mobilized and focused. Only at such times, he says with evident exaggeration, can “political communication within national publics see[m] at present to be able to benefit from online debates.” And thus, he concludes, “appealing to the Internet cannot dispel the prima facie doubt over the potentially positive contribution of mass communication to deliberative politics.”322 This diagnosis of the Internet’s possibilities seems to me too abbreviated to be very convincing. I say that as someone skeptical of many of the largest claims made for the Internet’s democratic political possibilities. Habermas needs to address the question more systematically and at greater length.323 Notwithstanding his judgment of the Internet’s democratic potential, Habermas’s overall judgment of the public sphere’s present possibilities for democracy is relatively positive. He relies on recent empirical studies that suggest confirmation for the “truth-tracking” power of deliberation. For example, he reports that Michael Neblo has found that group deliberation “tended to promote a convergence rather than a polarization of opinions”; this evidence Habermas interprets as a group “learning process[].”324 James Fishkin’s well-known “deliberative polling” experiments have indicated, Habermas notes, that group deliberation increases participants’ substantive knowledge and allows them to “counter unreflective framing effects.”325 In a study conducted just about the time Habermas’s essay went to press, Fishkin conducted a deliberative poll with EU voters and found, as effects of deliberation, both increase in knowledge and tendencies toward convergence in opinion.326 Habermas discusses other studies to similar effect.327

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He does not acknowledge, however, that other studies have come to conflicting results. Most notably, Cass Sunstein has found that deliberation, at least among the like-minded, may tend to produce polarization of opinion and, rather than changing minds, it may tend to confirm participants’ initial points of view.328 And of course also there are difficult questions of institutional design that must be answered before small-group techniques could be adapted for use in mass democratic processes—although proposals certainly are being made.329 Thus, despite his recognition of the media’s lapses of independence, his acknowledgment of “infotainment” and other “media effects,” and his identification of structural differences between media-based communication and his model of discourse, Habermas concludes that his deliberative model of democracy can be sufficiently realized “under favorable conditions” in the “media-dominated public sphere.”330 Perhaps more important than this conclusion, which as noted is still controversial, is Habermas’s effort to make his deliberative model empirically testable. This effort is what has made Habermas’s recent essay on democracy in “media society” one that is “particularly close to [his] heart.”331 As Habermas acknowledges, however, his theoretical account of the public sphere in media society is keyed to national rather than transnational societies.332 For the foreseeable future, he recognizes, Europe-wide political democracy will have something of a derivative character, depending to a considerable extent upon parallel processes within the member states. Habermas writes: [A Europe-wide “cosmopolitan condition”] must receive indirect “backing” from the kinds of democratic processes of opinion- and will-formation that can only be fully institutionalized within constitutional states, regardless of how complex federal states on a continental scale may become. This weak form of constitutionalization beyond the nation-state remains reliant on continual provisions of legitimacy from within state-centered systems. Only within states does the organizational part of the constitution secure citizens equal access to the politically binding decisions of the government through institutionalized publics, elections, parliaments, and other forms of participation. Only within constitutional states do administrative mechanisms exist to insure the equal inclusion of citizens in the legislative process.333

Two important consequences follow from this analysis. First, despite Habermas’s reference to the “postnational constellation,” nation-states will retain a vital and even preeminent role in the project of democratic constitutionalism.334 To the extent that the future realizes Habermas’s hope of “links” between national and transnational public spheres and civil societ-



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ies, as well as between national and supranational political institutions,335 the “model of the circulation of power” with which Habermas’s Between Facts and Norms sought to capture the democratic political process would have to be amended and complicated. Second, consider Habermas’s admission that “democratic processes of opinion- and will-formation . . . can only be fully institutionalized within constitutional states, regardless of how complex federal states on a continental scale may become.”336 This does not seem consistent with Habermas’s suggestion that we must “detach the fading idea of a democratic constitution from its roots in the nation-state and revive it in the postnational guise of a constitutionalized world society.”337 Habermas’s admission also seems to suggest that the idea of “constitutional patriotism,” which he has defended as a basis for integrating increasingly multicultural states, might not serve to integrate new “postnational” forms of political society.338 Moreover, if political institutions beyond the nation-state cannot satisfy the public sphere/civil society/parliament model of democracy that Habermas has defended in Between Facts and Norms, might we need to rethink the idea of democracy?339 While Habermas’s model of Between Facts and Norms focuses on parliaments as the key form of governance, an assumption of many contemporary EU scholars is that the days of twentieth-century parliamentarianism are gone.340 Some scholars, largely sympathetic to Habermas’s normative aims, have tried to describe the new policy-making developments characterized as “comitology” as consistent with at least some aspects of Habermas’s understanding of democracy. Comprehensive review and assessment of the comitology literature is beyond the scope of this book. But briefly, “comitology” refers to a process by which the European Commission—the executive body of the EU— implements legislation adopted by the European Council or Parliament. In the structure of committees, “European and national officials interact with various private and semipublic players (e.g. administrations, departments, private and public associations, and certain, mainly corporate, interest groups).”341 Advocates of comitology laud its deliberative qualities, its mobilization of “experts and counter-experts,”342 and its inclusion of those most directly affected by the policy in question.343 In these respects, one sees connections to Habermas’s discourse theory of democracy.344 But advocates for the comitology model see it as involving norm creation as well as the implementation of legislatively prescribed norms.345 To that extent, the model is in tension with Habermas’s understanding of the separation of

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powers, according to which the administration must be limited to “pragmatic discourses” with “pregiven” normative premises.346 To be sure, even those sympathetic to the comitology model acknowledge its defects. Formally, its constitutionality is questionable,347 and both parliamentary oversight and judicial review still are lacking.348 Comitological operations are not altogether transparent to citizens.349 Access to committees is unequal, measured both across EU member states350 and across social strata.351 The comitological process clearly is incompletely democratic. But the comitological model is only one possible form of new institutional design for political democracy beyond the nation-state. While Habermas’s discussion of EU developments would be stronger if he had engaged this specific and well-known proposal, his arguments typically operate at a higher level of abstraction than that occupied by questions of institutional design. Still, Habermas’s writings still might be taken to inform discussions of institutional design. Further, some of his remarks about “transnational negotiation systems” (see section 5.3.2) would seem to apply to, or at least have implications for, the EU committee structure.352

5.3.2 The Constitutionalization of International Law: Politically Constituted World Society without a World Government A final dimension of Habermas’s recent political writings is his consideration and transformation of Kant’s project of “perpetual peace.” Habermas’s catchphrases here are “politically constituted world society without world government,”353 and “the constitutionalization of international law.” Habermas first systematically addresses Kant’s project in a 1995 essay “Kant’s Idea of Perpetual Peace: At Two Hundred Years Removed.”354 He reads Kant as aiming to establish a cosmopolitan law “alongside state law and international law.” The end point of the historical process was to be “a global legal order that unites all peoples and abolishes war.” The principles of cosmopolitan law were to be those already “implemented within single states.”355 Kant distinguished sharply between the “federation of nations” (Völkerbund) that he envisioned and a “state of all peoples” (Völkerstaat). The original states were to retain their independence. In contrast to the social contract that models existing states, the basis for the world federation would be the treaty. In this sense, the basis for cosmopolitan law differs from existing international law only in its projected permanence.356



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But what is the foundation for this projected permanence, Habermas asks? If the federation, unlike the state, lacks a constitution that authorizes coercive authority, and if in general it provides no actionable legal rights to federation members, then the obligation to respect the federation and maintain the peace lacks a legal basis. According to Habermas, Kant’s “soberly realistic descriptions of the politics of his time” make belief in an effective moral obligation difficult to credit. And so, Habermas maintains, Kant “glosses over” the problem “with a mere appeal to reason.” Enter the philosophy of history, in which “a hidden ‘purpose of nature’ ” is to bring about “the improbable ‘agreement between politics and morality.’ ”357 Habermas points to three features of the historical situation that, in Kant’s account, were to align reason with self-interest. In each instance, Habermas seeks not just to discern what disappointed Kant’s hopes but to discover whether there might be reason to expect different results in the present and future. Two of the developments are worth mentioning. The first concerns globalization. Kant had hoped that trade among members of the federation would provide sufficient incentive to deter war. The actual developments, according to Habermas, are much more ambivalent. “Nongovernmental actors such as multinational corporations and internationally influential private banks undermine the formal sovereignty of nation-states,” Habermas writes. And with the “denationalization” of economies, the ability of nations to “profit from their economies” by benefiting from trade is diminished. Accordingly, the incentives toward peace that Kant had hoped for are diminished, even as trade among nations has increased.358 The second development concerns the public sphere. According to Habermas, Kant saw philosophers as monitors of republican principles, and, while he foresaw the dangers of censorship, he did not anticipate the systematic manipulation of public opinion. I have already discussed Habermas’s view of these developments. What is interesting here is that Habermas sees the potential development of a “global public sphere.” It first began to emerge, according to Habermas, around events such as the Vietnam War and the first Gulf War, then around global summit meetings. The possibilities of a more permanent worldwide public sphere are uncertain: To be sure one should not overlook the fact that this temporary, issue-specific public attention is still channeled through the established structures of national public spheres. Supporting structures are needed to institute permanent communication between geographically distant participants who simultaneously exchange contributions on the same themes with the same relevance. In this

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One supportive trend that Habermas discerns is the development of an international civil society: a network of nongovernmental organizations from which public-sphere communication might draw. Habermas mentions Amnesty International and Greenpeace as specific examples, but more generally he sees “at least an indication of the growing impact on the press and media of actors who confront states from within the network of an international civil society.”359 According to Habermas, a reformulation of Kant’s project must reconstruct the ideas of external and internal sovereignty that the Westphalian system of nation-states presupposes. If a cosmopolitan legal order is to be binding, it requires a legal code with sanctions for violations. The U.N. charter’s ban on offensive war making and its peacekeeping ventures, however, are only a beginning. In his 1995 “Perpetual Peace” essay and elsewhere, Habermas mentions as obstacles the Security Council singlepower veto,360 with resulting limits on peacekeeping interventions, and the absence of binding judgments against nonconsenting states from the International Court of Justice.361 He cites also, though less clearly by way of criticism, the circumstance that the United Nations does not itself have a military force but must instead rely on troops supplied by the member nations.362 From the side of internal sovereignty, Habermas rejects Kant’s idea that only states and not individuals count as members of citizens of the envisioned cosmopolitan community. With the development of international human rights law, the beginning steps have been made toward a cosmopolitan legal order. While the law requires states to respect the basic human rights of their citizens, it at the same time “bypasses the collective subjects of international law and directly establishes the legal status of the individual subject” with “unmediated membership in the association of free and equal world citizens.” As an institutional framework in which these cosmopolitan human rights are to be developed and enforced, Habermas mentions the U.N. Human Rights Commission as monitor and reporter of violations, together with what has become the new International Criminal Court (ICC). Habermas endorses the idea of personal liability for human rights crimes as a positive development, and he applauds the move away from only ad hoc human rights tribunals. The ICC’s powers, however, are limited by the refusal of several key nations, including the United States, to participate as party states. Enforcement of human rights



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guarantees, Habermas observes, is weakened further by the absence of an international executive power.363 As steps toward the constitutionalization of international law, Habermas’s 1995 Kant essay, together with more recent articles,364 emphasizes U.N. reforms. In his first set of proposals, Habermas recommends converting the General Assembly into “a kind of upper House” (analogous to the U.S. Senate), with the establishment of a parliament of directly represented citizens. Countries that refuse democratic elections “could be represented in the interim by the World Parliament itself as the representatives of oppressed populations.”365 The Security Council’s unanimity rule would be abolished, and regional regimes would be granted representation. Habermas’s model here is the Council of the European Union.366 But how would a constitutionalization of international law, with the institutional reforms mentioned above, stop short of a world state? And why would a world state be undesirable? As to the second question, Habermas sees a world state as at least potentially “normalizing,” that is, overly assimilative of national difference.367 In addition, the idea is for Habermas utopian in a pejorative sense. To saddle a supranational organization with general rights-protecting responsibilities would require securing at the same time “the ‘empowering’ material conditions” needed for effective exercise of those rights. This responsibility, Habermas believes, would “overtax the capacities and political will of the international community.”368 Networks and nonstate organizations at the transnational level, intermediate between the territorial states and the United Nations, are required to address these matters. The difference between the constitutionalization of international law and the development of a world state is more difficult to explain.369 Habermas distinguishes conceptually between constitution and state: The former effects a horizontal association of citizens, and the latter implies vertical relations of authority. But his description of the power a world state would enjoy—“a supranational power above competing states that would equip the international community with the executive and sanctioning powers required to implement and enforce its rules and decisions”—is difficult to distinguish from his proposed U.N. reforms.370 The difference Habermas has in mind seems to lie in the limited number of functions he would assign to the world organization: peacekeeping (albeit of a more ambitious scope than originally recognized)371 and the enforcement of basic human rights if territorial states refuse or are unable to enforce them.372 There is no “structural analogy,” Habermas says, between an organization assigned

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few and limited functions by territorial states and “the constitution of a sovereign state that can determine what political competences it claims for itself (and hence possesses supreme constitutional authority).”373 The U.N. reforms concern the supranational level. At the “transnational” level, Habermas emphasizes the importance of “regional” or “continental regimes” on the model of the European Union.374 The “world domestic policy” Habermas envisions would be made largely at this level. He has in mind organizations—or, as he often says, “negotiation systems”— that are separate from the World Trade Organization, International Monetary Fund, and World Bank. Habermas’s list of problems to be addressed at this level is lengthy. He mentions, in various essays: “extreme disparities in wealth within the stratified world society, . . . ecological imbalances, and . . . collective threats,”375 “global energy and . . . environmental, financial, and economic policy.”376 Habermas describes the task here as politics “ ‘catching up’ with globalized markets.”377 While markets already are effectively globalized, the political organization needed for the transnational regulation Habermas envisions lags far behind: “With the exception of the United States,” he writes, “there are at present no viable actors at the intermediate or transnational level.”378 If constitutional patriotism is a challenge at the level of the nation-state, its transnational analogue may be more difficult still. What is needed, Habermas says, is the “rais[ing]” of “international consciousness” “to an ever higher level of abstraction in the process of integrating nation-states into continental regimes.”379 As one might expect, Habermas emphasizes the need for legitimation of any new transnational organizations and greater legitimation for the expanding scope of activity by the existing supranational organization, the United Nations. Despite his distinction between state constitutions and the constitution of trans- or supranational organizations, Habermas asserts repeatedly that there is no a priori reason to limit democratic principles to the national level at which they were first institutionalized. Their universalistic meaning points beyond the nation-state. To quote again Habermas’s most striking formulation: “We must detach the fading idea of a democratic constitution from its roots in the nation-state and revive it in the postnational guise of a constitutionalized world society.”380 But the question remains how to implement democratic constitutional principles. I have discussed above Habermas’s suggestions with respect to the European Union; I consider here briefly his other ideas for the trans- and supranational levels.



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The proposed second legislative chamber for the United Nations would be an instance of directly democratic implementation. And to the extent that it induces member states to set up genuinely democratic elections for U.N. deputies—the unattractive alternative Habermas provides is U.N.-appointed representation for nondemocratic nations’ “oppressed populations”—one might hope for democratic spillover into national politics. For the United Nations, Habermas suggests indirectly democratic legitimating strategies as well. He proposes: “Opinion- and will-formation within the world organization should be connected back to the circuits of communication within national parliaments and should be subject to more effective monitoring by NGOs and other representatives of a mobilized world public.”381 For transnational negotiation systems, Habermas requires that there be a fair balance of power,382 suggested by his idea of bargaining as the sometimes necessary substitute for discourse.383 One apparent difficulty, however, is that while a balance of bargaining power may be established at the national level through law—either directly or by adjusting background entitlements—similar possibilities for adjusting power differentials seem lacking when the bargaining partners are states. Beyond a fair balance of power, Habermas mentions the need for “public criticism, deliberation, and political reaction by affected citizens in their respective national arenas.”384 Here as elsewhere, the involvement of nongovernmental organizations is essential. But for Habermas, the needed legitimation for transnational networks and bargaining systems must be primarily indirect, that is, dependent on the democratic political processes in the territorial states. He is emphatic on this point: Transnational negotiation systems . . . must receive indirect “backing” from the kinds of democratic processes of opinion- and will-formation that can only be fully institutionalized within constitutional states, regardless of how complex federal states on a continental scale may become. This weak form of constitutionalization beyond the nation-state remains reliant on continual provisions of legitimacy from within state-centered systems. Only within states does the organizational part of the constitution secure citizens equal access to the politically binding decisions of the government through institutionalized publics, elections, parliaments, and other forms of participation. Only within constitutional states do administrative mechanisms exist to insure the equal inclusion of citizens in the legislative process.385

The burden of legitimation would seem much greater for transnational organizations than for the supranational U.N. organization. The latter’s

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functions, Habermas has emphasized, are limited; transnational organizations are assigned more far-reaching responsibilities of global domestic politics. While Habermas allows that with respect to securing peace and protecting basic human rights, “the requisite solidarity among world citizens need not reach the level of implicit consensus on thick political value-orientations that is necessary for the familiar kind of civic solidarity among fellow-nationals,” a different conclusion seems required at the transnational level.386 The preceding analysis of needed transnational and supranational developments comes mostly from essays Habermas published in 2005 and 2006. In 2008, he published a lecture that addresses criticisms of his proposals. Again he insists on the conceptual difference between a world constitution and the constitution of a nation-state. There is no prepolitical global civil society, he suggests, that could be the basis for a social contract. Instead, Habermas argues, the development of a world constitution must reckon not just with individuals as subjects but with states as subjects as well: Individuals and states “constitut[e] the two categories of founding subjects of a world constitution.”387 Habermas’s most recent proposal modifies slightly his suggestion for U.N. reorganization. While the twin functions of securing peace and protecting human rights would remain the same, the U.N. Charter now would “play the role of a cosmopolitan constitution.” Habermas proposes two possible institutional arrangements. In the first, there would be a one-chamber General Assembly with representatives of “the cosmopolitan citizens” and also delegates from member states’ democratically elected parliaments. The other possibility would be (as in his earlier suggestion) a two-chamber parliament with representation for individuals and states, respectively. According to Habermas’s proposal, this supranational legislative body would “initially convene as a Constituent Assembly” but subsequently assume the form of a “World Parliament.” The “legislative function” of this world parliament “would be confined to the interpretation and elaboration of the Charter.”388 As before, transnational organizations would have to address issues beyond the U.N. peacekeeping and (secondary) basic-rights-protecting mission. The boundary between national and transnational competence would be a recurring issue. Even if we could expect greater cooperation among states and peoples, national governments would retain much of their authority. As Habermas frames the question: When must national



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governments’ duties to their own citizens “take a back seat to the legal obligations which the states incur towards all cosmopolitan citizens equally as members of the international community?”389 Habermas is frank about the difficulties his proposal would face. The means for enforcement of supranational decisions would have to come from “able and willing members.” Habermas can only hope that those able and willing members would adopt a more global and less nationally self-interested perspective than the United States so far has done. And as to the possibility of using transnational organizations to implement a global domestic politics, Habermas acknowledges that “we lack at present the necessary institutions and procedures to decide upon programs and to implement them on a broad scale.”390 As noted, the requirement of fair compromise would seem to presuppose a more equal balance of power (economic as well as military) than presently exists or could be expected to be established in the foreseeable future. Further, Habermas again acknowledges that a politically constituted world society would face legitimation difficulties. The general idea, Habermas says, is to “connect up with the existing, though inadequate, modes of legitimation of the constitutional state, while at the same time supplementing them with” new means of legitimation.391 Prospects seem brighter with respect to the supranational U.N. organization than with the transnational negotiating regimes. As Habermas notes, the idea of a duty not to commit wars of aggression is “anchored in all cultures.” And thus the development of “judicially elaborated standards” at the supranational level can to that extent draw on “a ‘credit’ of legitimation.”392 At the transnational level, by contrast, the more encompassing political issues would require that the participating states themselves be democratic. As Habermas allows, “This extension of the chain of legitimation of democratic procedures beyond national borders is  .  .  .  an immensely ambitious requirement.” The development of a requisite global public sphere would require that national public spheres be mutually “responsive to one another”—and that means that nationally organized publics would have to consider the same issues at the same time. This deliberation would have to be democratic. As Habermas’s projection of a European public sphere indicates, that prospect is presently unrealized even at a level more modest than the global public sphere. Habermas speaks of necessary “learning processes” both for states and for peoples.393

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c onclu di ng qu es t ions At age 81, Habermas has not yet slowed his pace of scholarly and publicpolitical production. Indeed, as this chapter indicates, he has extended his project ambitiously to consider prospects for democracy and human rights beyond the nation-state. This extension, I think understandably, leaves open key questions for further analysis. In closing this book, I mention only a few such questions. First, although it may be plausible in “reconstructing” Western liberal democracies to identify legitimate law with democratically produced law, that choice is more problematic in the case of nonliberal and nondemocratic societies. While Habermas’s discourse theory of law and democracy could provide an external critical standard for such societies, it would lack the immanence that makes it attractive and nonutopian in the case of liberal democratic societies. What adaptations (if any) are necessary to make the theory normatively appropriate outside its original range of application? Second, Habermas specifies his discourse theory of law socialtheoretically with his “model of the circulation of power.” (See Chapter Four.) That model focuses on the generation of legitimate law through, first, “lifeworld” civil-social communication that, second, emerges into the sphere of public-political discussion and then, third, passes through the “sluices” at the entry to the formal political system. Does this model have application to nonliberal and nondemocratic societies? And further: How could it be adapted for application beyond the nation-state? Is parliamentarydemocratic origin still so essential for the creation of legitimate trans- and supranational law? How precisely should we theorize the relation between national public spheres and emerging trans- and supranational public spheres? Is there a similar relation between national and trans- and supranational civil societies? Luhmann’s systems theory has, since at least the early 1970s, maintained that “society” must be understood as world society. How can Habermas’s theory, now attentive to operations and developments beyond the nation-state, be similarly understood? In short, Habermas’s “communications theory of society” needs to be updated to take account of his now continental and global frames of reference. Third, and most challenging, is the set of questions that emerged at the end of this final chapter. If legitimate law is democratically produced law, how are we to understand the production of law through transnational bargaining systems in a world without a fair balance of bargaining power? If legitimation of that law depends upon conditions in national systems,



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how do we answer the objection that most of those systems are neither liberal nor democratic? How more precisely could there come to develop something like a global civil society and a global public sphere? Is there any possible equivalent for “constitutional patriotism” beyond the national level? Can we really conceive of a “global domestic politics” that does not develop through a world state? It soon will be fifty years since Habermas’s first important book, Structural Transformation of the Public Sphere. It is remarkable that he is still so prolific and so vital—and especially remarkable that he has at each stage of his career continued to rethink and expand his intellectual and political project.

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Notes

introduction 1.  For a book-length English-language philosophical and political biography of Habermas, see Matustik (2001); for a shorter German-language biography, see Wiggershaus (2004). 2.  Habermas (1986a), 73. 3.  Matustik (2001), 3–4. 4.  Habermas (1986a), 73. 5.  Habermas (1986a), 74; Matustik (2001), xxx. 6.  Habermas (1986a), 73–74. 7.  For another brief autobiographical reflection on Habermas’s experiences at the end of World War II, see Habermas (2008f), 17–18. 8.  A recent example of a work that holds Structural Transformation in high esteem is MacCormick (2007). 9.  Matustik (2001), 41. 10.  See, above all, McCarthy (1979), 53–125. 11.  Habermas and Luhmann (1971). 12.  Habermas (1975), 4. 13.  See, for example, Habermas (1991b) (originally published 1982). 14.  The term unfinished project comes from Habermas’s 1980 essay “Die Moderne—ein unvollendetes Projekt.” The essay is reprinted in d’Entreves and Benhabib (1997), 38–57. 15.  Habermas (1988b). 16.  The book’s German title is Faktizität und Geltung—literally, “Facticity and Validity.” It was translated into English four years after its German publication. 17.  Habermas (1996), 82 (emphasis omitted). 18.  Ibid., 7. 19.  See also Habermas (2002). 20.  See Habermas (2003a).

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1.  basic concepts in habermas’s theory of communicative action Portions of this chapter were adapted from “System and Lifeworld in Habermas’s Theory of Law,” Cardozo Law Review 23: 473–615 (2002). 1.  One might wonder why Habermas’s action theory focuses only on rational action. His explanation has two parts. First, he constructs his typology of action for purposes of social theory, not for other classificatory purposes. See Habermas (1984c), 273–274, 278–279. And the particular project Habermas has pursued involves a reconstruction and reformulation of Max Weber’s theory of “occidental rationalism.” Habermas accordingly privileges rational action in his typology. For a critique of Habermas’s decision to focus on rational action, see Joas (1991), 99–101. 2.  For examples of this strategy, see Habermas (1984c), 285; Habermas (1982), 263–264. 3.  Weber (1978) (Vol. I), 4. 4.  See Habermas (1984c), 285. 5.  See ibid., 101. 6.  See Habermas (1982), 264. 7.  See, for example, Habermas (1984c), 298; ibid., 273–274. 8.  See ibid., 101. Hans Joas argues that Habermas needs to distinguish more clearly between a typology of social action and a typology of how social action is coordinated (Joas (1991), 101). 9.  Habermas (1984c), 328. 10.  For an excellent account of Habermas’s method of reconstruction, see Power (1998). 11.  Or at least the claim that the utterance’s “existential presuppositions” are satisfied. See Habermas (1984c), 99, 306–307. This qualification is necessary to account for speech acts that do not directly assert matters of fact. 12.  See, for example, ibid., 75, 99. One might ask: Why these three and only these three forms of validity? While Habermas does not pretend to a transcendental deduction of the three categories of validity (see ibid., 38), he does attempt to justify his choice systematically. Truth, rightness, and sincerity, he argues, correspond to the three “worlds” to which utterances may refer: the “objective” world of “existing states of affairs,” the “social” world of norms, and the “subjective” world of “desires or feelings.” See ibid., 51, 91–92; see also ibid., 70. I avoid this terminology because I find it potentially misleading. It seems, first, to suggest that the theory of communicative action depends on some deep ontological claim about the number and nature of “worlds.” Further, the distinctions between the “objective world” and “subjective world” and among the various “subjective worlds” to which individual speakers have “privileged access” (ibid., 91, 100) could be thought to recreate what Habermas elsewhere criticizes as the “philosophy of consciousness,” with its sharp division between subject and object and among subjects. In fact, however, formal pragmatics is a “rational reconstruction” of communicative practice, not a revelation of timeless truths. As a rational reconstruction, Habermas tells us, it is hypothetical, revisable in principle, and subject to empiri-



Notes to Chapter 1

cal check. See, for example, Habermas (1991c), 32. Moreover, the theory is explicitly historical: Only in modern communicative practice, we are told, are the three worlds and validity claims clearly distinguished. See Habermas (1984c), 48–51, 235–36; Habermas (1987b), 133, 159. Nor does Habermas conceive of communicating human beings as monadic subjects, isolated in their own “subjective worlds.” Validity claims are raised, criticized, and defended publicly, with respect to shared standards and criteria. Habermas’s tripartite division of validity claims has received significant criticism. See Cooke (1994), 51–94. For present purposes, however, I am willing to accept Habermas’s choice of truth, rightness, and sincerity as plausible enough for an initial theoretical decision. 13.  See Habermas (1984c), 308–309. 14.  See Habermas (1992), 57, 77; Habermas (1984c), 325–326. Habermas distinguishes also “communicative” and “operative” speech acts (see ibid., 326), but the definitions of those classes are unimportant for present purposes. 15.  See Cooke (1994), 59. 16.  See ibid.; see also Habermas (1992), 76–77. Accord Cooke (1994), 60–61. 17.  See, for example, Habermas (1984c), 301. 18.  See, for example, ibid., 38–39, 101, 305–307. 19.  Habermas is not always careful to include this qualification expressly, but it follows from his position. The alternatives to providing a requested justification are either breaking off interaction or switching over to strategic action. See Habermas (1979), 3–4. 20.  See Habermas (1984c), 99. 21.  See ibid., 303–304. 22.  See, for example, Habermas (1984c), 101; Habermas (1991d), 241; Habermas (1984b), 154. 23.  Habermas (1984c), 305; see also ibid., 86. 24.  See, for example, ibid., 286; Habermas (1991c), 242; Habermas (1991a), 58; Habermas (1984a), 572–573. 25.  See Habermas (1992), 79; Habermas (1984b), 153. 26.  See Habermas (1984c), 332–333. 27.  He mentions also the possibility of unconscious deception, which he calls “systematically distorted communication.” See Habermas (1984c), 333. In this form of interaction, the parties believe that they are acting communicatively, but at least one party is in the grip of an individual psychopathology or powerful social ideology that distorts, and in distorting subverts, the process of reaching understanding about claims to validity. This notion once occupied a prominent place in Habermas’s work, with a reconstructed version of psychoanalysis providing a methodological model for critical social theory. See Habermas (1970); Habermas (1971). With Habermas’s turn in the mid-1970s toward substantive social theorizing and away from epistemological concerns and ideology critique, the importance of this concept in Habermas’s work has receded. 28.  The discussion in text short-circuits Habermas’s usual characterization of concealed strategic action. Since 1981, in The Theory of Communicative Action, Habermas has explicated concealed strategic action by modifying the notion of

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Notes to Chapter 1 “perlocutions,” borrowed from J. L. Austin’s speech-act theory. See Austin (1962), 101–131; see also Habermas (1984c), 288–295. Habermas’s initial formulation attracted significant criticism, on two scores: Habermas’s analysis of “perlocution” bore little resemblance to what Austin meant by that term, and, further, Austin’s notion of perlocution had little connection to what Habermas meant by concealed strategic action. See, for example, Wood (1985), 157–162; Culler (1985), 136; Baxter (1987), 41, 81 n.8 (1987); Tugendhat (1991), 180. Habermas since has acknowledged that his usage of the term perlocution is idiosyncratic and “leads to misunderstandings” (Habermas [(1991d]), 23; see also Habermas [(1986b]), 201). He has proposed a revised theory in which (this time explicitly) only some perlocutions count as constitutive for concealed strategic action. See ibid., 239–240; see also Cooke (1994), 22–24 (analyzing Habermas’s present position). We need not retrace Habermas’s journey. The criterion of concealed strategic action is essentially the same after as before Habermas’s revisions (see Habermas (1991d), 240), and it can be explicated without reference to any conception of “perlocution.” See Cooke (1994), 23. 29.  Habermas constructs his formal-pragmatic analysis by analogy to formal semantics. A prominent approach in formal semantic theory analyzes the meaning of a sentence or proposition in terms of its truth conditions—the conditions under which the sentence or proposition would be true. Habermas analyzes the meaning of an utterance—the basic element of pragmatic theory—in terms of the conditions under which it would be acceptable. See Habermas (1984c), 297–298. “Acceptable” is broader than “true” in two senses. First, it covers claims to rightness and sincerity as well as claims to truth. Second, it addresses the issue of whether the utterance is normatively appropriate when made in a particular context, not just the question of whether it is abstractly valid. 30.  See ibid., 301–302. 31.  See Habermas (1985), 112. 32.  See Habermas (1992), 83. 33.  See ibid., 84; Habermas (1991d), 239; Habermas (1986b), 201. 34.  Habermas (1991d), 239. 35.  Habermas (1996), 26–27. 36.  See, for example, Habermas (1991d), 242–243. 37.  See, for example, Habermas (1996), 25. 38.  My argument here is compatible with the argument in Johnson (1991): that strategic action need not be so “egoistic” or “atomistic” as Habermas’s account implies. The same is true for Habermas’s account of game theory. 39.  See Habermas (1996), 139. 40.  See Habermas (1992), 80. 41.  See Habermas (1996), 524 n. 18; see also ibid., 121, 448. 42.  See Holmes (1897). 43.  See, for example, Habermas (1996), 26–29. 44.  The title of Habermas’s 1992 book on law and democracy is Faktizität und Geltung—literally, Facticity and Validity—but rendered in the English translation as Between Facts and Norms.



Notes to Chapter 1

45.  Those other distinctions include: consensus and influence, validity and power, reasons and sanctions, rational and empirical motivation, cooperation and pursuit of self-interest. 46.  See, for example, Habermas (1992), 81. 47.  See, for example, Habermas (1996), 25–27. 48.  See Habermas (1979), 3-4. Sometimes Habermas mentions other possibilities, such as “carrying out straightforward repair work” or continuing the interaction but avoiding the controversial issue. See Habermas (1996), 21. 49.  See Habermas (1984c), 25; Habermas (1991b), 158; see also Habermas (1982), 235. 50.  Sometimes Habermas has given the term discourse a more narrow meaning than “argumentation.” See Habermas (1984c), 23, 41–42. In more recent writings, however, the terms seem to be synonymous. See Cooke (1994), 31–32. 51.  See Habermas (1984d), 177. 52.  Habermas (1984c), 25. Habermas’s reference to “truth” should be read to consider the other “truth-analogous validity claims” he identifies. 53.  See, for example, Habermas (1984d), 174–83; Habermas (1984c), 25; Habermas (1998i), 365, 367; Habermas (1996), 322–323; Habermas (1993c), 50. 54.  See, for example, Habermas (1998i), 365; Habermas (1996), 322. 55.  Habermas (1984c), 25. 56.  Ibid.; Habermas (1996), 178. 57.  Habermas (1982), 235. 58.  See Husserl (1970). In an essay published after Theory of Communicative Action, Habermas discusses the Husserlian origins of the term lifeworld. For Husserl, Habermas notes, the concept of lifeworld “forms a counterconcept to those idealizations that first constitute the object domain of the natural sciences” (Habermas (1988a), 239). 59.  Husserl (1970), 127. 60.  Ibid., 130–131. 61.  Ibid., 135–189. 62.  Ibid., 173. 63.  Husserl’s analysis of the lifeworld occupies Part III of the Crisis of European Sciences. This part remained unpublished until 1954; see Translator’s Introduction, in Husserl (1970), xvi–xxi, though some scholars, including Schutz, had access to it before publication. 64.  On Weber’s early influence on Schutz, see Wagner (1970), 13–16. 65.  See ibid., 29; see generally ibid., 287–327. 66.  I say “came to call” because Schutz had published an important work that sounded many of the same themes before Husserl’s use of the term lifeworld. See Schutz (1967). 67.  Habermas relies in particular on a work Schutz left unpublished at his death in 1959, entitled Strukturen der Lebenswelt (Structures of the Lifeworld). Schutz’s student, Thomas Luckmann, has completed part of the work, using much of what Schutz had left behind but deleting some of it and adding some of his own material. See Schutz and Luckmann (1973). For reasons of convenience, I refer to “Schutz” rather than “Schutz and Luckmann” in text.

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Notes to Chapter 1 68.  See Habermas (1987b), 121–125. 69.  See Schutz and Luckmann (1973), 28–35. 70.  See Habermas (1987b), 119. 71.  Ibid., 119; see also ibid., 144, 204. 72.  Ibid., 121, 126–127. 73.  Ibid., 134. 74.  Ibid., 139; see also ibid., 138. 75.  See also ibid., 135: Action, or mastery of situations, presents itself as a circular process in which the actor is at once both the initiator of his accountable actions and the product of the [cultural] tradition in which he stands, of the solidary groups to which he belongs, of socialization and learning processes to which he is exposed. The criticism of Schutz is not entirely fair. At the very least, he includes in the “stock of knowledge” many of the skills, competences, and know-hows that Habermas places under the heading of “personality.” 76.  See Habermas (1984c), 158. 77.  Habermas (1987b), 133; see also ibid., 134, 138, 145, 153, 255, 308, 356. 78.  Ibid., 138. 79.  See ibid., 366. 80.  See ibid., 134, 141, 146, 153, 174, 262, 318, 366. 81.  See ibid., 266. 82.  See ibid., 365. 83.  See ibid., 183, 276. 84.  See ibid., 136–137. Joas criticizes Habermas’s shift from the idea of lifeworld as background to social action to the idea of society as lifeworld. See Joas (1991), 116. 85.  Ibid., 138. 86.  Ibid., 232; see also ibid., 138. 87.  See ibid., 140–141. 88.  See ibid., 86, 107, 137–138, 139, 142–143, 144 fig. 23, 232, 261, 266, 267, 288; see also Habermas (1991d), 227, 234, 268, 281. 89.  See Habermas (1987b), 142 figure 21. 90.  Ibid., 137. 91.  See ibid., 142, 143 figure 22. 92.  Ibid., 330. 93.  Ibid., 304. 94.  See ibid., 283–284, 305, 322, 369, 372–373, 403. 95.  Habermas (1988c), 82–83. Habermas made similar observations in his 1973 work, Legitimation Crisis, though this time referring to “systems theory” (Parsons, Luhmann) rather than to functionalism. See Habermas (1975), 2–3. To the same effect are his remarks in Theory of Communicative Action (Habermas, 1987b, 292). 96.  With respect to social integration, for example, liberals and republicans would differ as to necessary breadth and depth of a consensus about values. With respect to personality, egalitarians and elitists would differ as to the proper distribution of competences. 97.  See Habermas (1987b), 292; Habermas (1975), 3.



Notes to Chapter 1

98.  Habermas (1987b), 375–376, 391. 99.  See ibid., 356. 100.  As opposed to psychology, where the term rationalization has a very different sense. 101.  The essay appears as the “Author’s Introduction” in Weber (1930). 102.  Ibid., 13–27. 103.  Ibid., 158. 104.  Ibid., 167 figure 3. 105.  Ibid., 180. 106.  Ibid., 161. 107.  He refers here to “scientific jurisprudence.” The German word wissenschaftlich, translated as “scientific,” has a broader connotation than its English counterpart, meaning something like “systematic” and “professionalized.” 108.  The classic instance is his closing to The Protestant Ethic: The Puritan wanted to work in a calling; we are forced to do so. For when asceticism was carried out of monastic cells into everyday life, and began to dominate worldly morality, it did its part in building the tremendous cosmos of the modern economic order. This order is now bound to the technical and economic conditions of machine production which today determine the lives of all the individuals who are born into this mechanism, not only those directly concerned with economic acquisition, with irresistible force. Perhaps it will so determine them until the last ton of fossilized coal is burnt. In [the Puritan theologian] Baxter’s view the care for external goods should only lie on the shoulders of the “saint like a light cloak, which can be thrown aside at any moment.” But fate decreed that the cloak should become an iron cage. ... Of the last stage of this cultural development, it might well be truly said: “Specialists without spirit, sensualists without heart; this nullity imagines that it has attained a level of civilization never before achieved.” But this brings us to the world of judgments of value and of faith, with which this purely historical discussion need not be burdened . . . . (Weber, 1930, 181–182) 109.  See Habermas (1984c), 216–222. 110.  See ibid., 156–159. 111.  Habermas (1987b), 146. 112.  Ibid. 113.  Weber is said to have remarked of democracy: “In a democracy the people choose a leader in whom they trust. Then the chosen leader says, ‘Now shut up and obey me.’ People and party are no longer free to interfere in his business . . . ” (Gerth and Mills (1958), 42). 114.  Habermas (1987b), 146–147. 115.  See ibid., 146–147. 116.  Ibid., 77; see also ibid., 88, 146, 180, 288. 117.  See ibid., 160.

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Notes to Chapter 1 118.  Ibid., 232. 119.  See ibid., 138. 120.  See Habermas (1984a), 174. 121.  Habermas (1987), 151. 122.  Ibid., 148, 150; Habermas (1996), 21, 524 n. 18; Habermas (1987), 121. 123.  Habermas (1996), 25. 124.  See Habermas (1987b), 149–150. 125.  Habermas (1987b), 148; Habermas (1991d), 253; cf. McCarthy (1991), 137 (“We do not need the paraphernalia of social systems theory to identify unintended consequences”). 126.  Habermas (1987b), 182–183, 262. 127.  Ibid., 180–181, 183, 261–263, 272, 276, 281. 128.  See, for example, ibid., 117, 150, 186–187. 129.  Ibid., 150. 130.  Ibid. 131.  See, for example, Habermas (1987b), 117–118, 150–151, 186–187. 132.  Ibid., 117. 133.  Ibid., 150, 154, 171, 173, 185, 242, 307, 327. 134.  Ibid., 309. 135.  Ibid., 357; see also ibid., 361, 366–367, 369. 136.  See Joas (1991), 105–106; McCarthy (1991), 137. 137.  See ibid., 185, 313, 334–338 (re Marx); 358 (re Hobbes); Habermas (1996), 39–40 (re Smith). 138.  For an account of Luhmann’s autopoietic theory in its application to law, see Baxter (1998). 139.  See, for example, Joas (1991); McCarthy (1991). Johannes Aranson, writing just as Luhmann began developing his autopoietic version of social-systems theory, distinguishes between Luhmann’s and Parsons’s versions. See Aronson (1991), 194–195. 140.  See, for example, Easton (1965), 25–26; Buckley (1967), 50. 141.  See Easton (1965), 29–32. The model becomes more complicated once one recognizes that a system has more than one “feedback loop.” See ibid., 372–376. 142.  Subsystem is always a relative term, used to signal that the system under discussion is part of a larger system. Whether one speaks of “system” or “subsystem” depends on the intended level of analysis. 143.  See Habermas (1987b), 235, 242, 243 fig. 32, 244 fig. 33. 144.  See Parsons (1967), 348. 145.  For Parsons’s overview of this project, see Parsons (1977), 43–48, 59–60, 204–269. 146.  See Parsons (1967b), 348–351. 147.  Alexander (1983), 84. 148.  Parsons (1967b), 354. 149.  Alexander (1983), 82. 150.  See Parsons (1977b), 230. 151.  Ibid., 236. 152.  See Parsons (1977a), 46–48; Parsons (1977b), 244–245.



Notes to Chapter 1

153.  Parsons (1977b), 262–269. 154.  See Parsons (1978), 361. 155.  See ibid., 393 fig. 4, 407 fig 5. 156.  A two-volume Festschrift for Parsons provides good examples of the way some of Parsons’s followers sought to deploy the AGIL schema at various levels of generality. See, for example, Fararo (1976), 182 (applying the four-function paradigm to name sixteen subsystems of the scientific system, four levels removed from Parsons’s original level of the social system); Lidz (1976), 231–236 (naming media for the “adaptive” subsystem of the general action system); Rocher (1976), 404 (using the four-function paradigm to name sixteen kinds of aspiration). 157.  Niklas Luhmann, the prominent German systems theorist, has observed: “At every level of system-building there is a subsystem that displays the whole schema once again. . . . But how far can this process be repeated? Is there a point past which it gives out? Does it become senseless after the second repetition, like the process of reflection? And, especially, is this the way to represent the structure of functional differentiation? Does this theoretical schema yield not structural complexity but only structural complications?” (Luhmann (1982), 58). 158.  See Habermas (1987), 250–256. 159.  The German word Steurung can be translated either as “steering” or “control.” In some of Habermas’s writings, the term Steurungsmedium has been rendered as either “steering medium” or “control medium.” See Thomas McCarthy, Translator’s Note, in Habermas (1975), 148 n. 11. I prefer “control medium,” but in deference to McCarthy’s choice in his translation of Theory of Communicative Action, and William Rehg’s choice in his translation of Between Facts and Norms, I use “steering medium.” So far as I have been able to see, Parsons does not use either term—“steering medium” or “control medium.” Habermas may have developed the term Steurungsmedium through his encounter in the early 1970s with the systems theorist Niklas Luhmann. (This encounter led to a joint book, see Habermas & Luhmann (1971), and to much greater sympathy on Habermas’s part for systems theory. Luhmann seems to have been unaffected by the encounter.) At that time, Luhmann, first trained in sociology by Parsons, was much under Parsons’s influence. He was developing Parsons’s notion of a “generalized interchange medium” into the concept of a “generalized communications medium.” Luhmann described such a medium as a way to “condition,” “regulate,” “steer,” or “control” the selections of a rational counterpart in interaction. Luhmann (1975), 7, 9. Luhmann refers, also, to media as a way to “induce” or “steer” one’s counterpart to accept an “offer.” Parsons, too, sees media as—from the point of view of actors—a means of exerting strategic influence over others. One difficulty with this explanation is that both Parsons and Luhmann (until the early 1980s, after the publication of Theory of Communicative Action) also examine the operation of these “media” from the perspective of social subsystems, not just actors. Still, one could speak of the economic system (and Habermas does) as “steering” or “controlling” itself through the medium of money. 160.  See Parsons (1967a); Parsons (1967b); Parsons (1969). 161.  Parsons (1967a), 357; Parsons (1977b), 241.

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Notes to Chapter 1 162.  See Habermas (1987b), 264. 163.  Parsons (1967a), 358. 164.  Ibid., 363. 165.  That money operates through positive sanctions only is not obvious. Robert Hale describes the process of exchanging labor-power for wages, or money for goods, as a process of reciprocal coercion that involves threats to withhold the desired money or commodity. See Hale (1923), 472–479. The process can be described in terms of either offers to provide or to withhold and in terms of either positive or negative sanctions. 166.  Habermas (1987b), 265–266. 167.  Ibid. The parallel is forced. Reasons—or at least particular reasons—do not “back” the medium of language itself, just particular claims. And certainly one does not wait for a communicative “panic” to ask for reasons in communicative action. Drawing on the “reserve” of reasons is not such an extraordinary occurrence in everyday communicative action, and it is established practice where discourse is institutionalized. 168.  See Habermas (1987b), 266. 169.  Ibid., 154, 309, 312, 344; see also ibid., 266. 170.  See ibid., 265. 171.  See ibid., 427 n56 172.  See ibid., 266. 173.  Ibid., 268. 174.  Here, as with Parsons’ account of money, one could describe the relevant sanctions in the opposite way. Compliance with commands may bring pleasant consequences, particularly if the addressee is located in a bureaucratic organization that rewards dutiful order-followers. The main point here is that for Parsons, power-mediated interaction, as with money, is coordinated by potential sanctions rather than by agreement about validity claims. 175.  One might object that power often seems to be enjoyed for its own sake, or for selfish purposes, rather than for its capacity to attain “collective goals.” Parsons’s point, which Habermas will amplify, is that in modern societies (at least) a stable political system requires that power generally be directed toward collective goals. 176.  Habermas (1987b), 268–269. 177.  Ibid., 269–270. 178.  Ibid., 270–271. 179.  See ibid., 271–272. 180.  See ibid., 274–276. 181.  See ibid., 275. 182.  Ibid., 274, 276–277. 183.  Hans Joas criticizes Habermas for this claim (Joas (1991), 111). 184.  Habermas (1987b), 155. 185.  Ibid., 153. 186.  See ibid., 156–197. 187.  See ibid., 156–172. The four mechanisms Habermas identifies are: “segmentation,” or the linking of similarly structured units, as in an association of equal families; “stratification,” or the ranking of similarly structured units, as in



Notes to Chapter 1

an association of families with different degrees of status; “state organization,” or the development of a functionally specified political organization largely independent of the kinship system; and “steering media,” through which first the capitalist economy and then the modern bureaucratic state, are differentiated. 188.  Ibid., 172–179. 189.  Ibid., 173–179. The distinctions among “preconventional,” “conventional,” and “postconventional” come from Lawrence Kohlberg’s work in moral psychology. Habermas defines the three levels as “the preconventional level, on which only the consequences of action are judged, the conventional level, on which the orientation to norms and the intentional violation of them are already judged, and finally the postconventional level, on which norms themselves are judged in the light of principles” (Ibid., 174). 190.  See ibid., 165 (re money); ibid., 169–171, 167 fig. 25, 166 fig. 24 (re power). 191.  See ibid., 171. 192.  See ibid., 318–320. 193.  The structural components of the lifeworld do not have steering media. This difficulty appears in Habermas’s general model of system/lifeworld interchange. 194.  Ibid., 154; see also ibid., 173. 195.  Ibid., 183. 196.  Ibid., 172. 197.  See ibid., 309, 357, 366. 198.  See ibid., 305, 307, 318. Thomas McCarthy has criticized the move from bureaucratic contexts of action to a differentiated bureaucratic system of action as understood by social-systems theory. See McCarthy (1991), 124; ibid., 131. 199.  Habermas (1987b), 154 (typographical error corrected). 200.  Ibid., 308–309. 201.  Ibid., 183. 202.  Others have made this point as well. See, for example, Joas (1991); Berger (1991), 174–178. My first formulation of this argument was in Baxter (1987). 203.  See Habermas (1987b), 185, 309, 311, 332, 356, 367, 368, 370. 204.  See ibid., 320. 205.  Douglas Kellner similarly criticizes Habermas’s “romanticism of the lifeworld, appealing to the ‘true humanity’ operative within interpersonal relations” (Kellner (2000), 273). 206.  See Habermas (1987b), 310–311. 207.  The quotations in the following paragraphs up to the table are from ibid., 319–322. 208.  Ibid., 322. 209.  See ibid., 335–336. 210.  Ibid., 322. 211.  See Habermas (1984c,) 399; Habermas (1987b,) 302. For Habermas’s interpretation and critique of Lukács and the Frankfurt School, see Habermas (1984c), 339–99; Habermas 1987b, 332–334, 389–391. For a defense of Adorno against the charge that his “negative dialectical” critique is doomed by its “performative selfcontradiction,” see Morris (1996).

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Notes to Chapters 1 and 2 212.  See Habermas (1987b), 322–323, 330–331. 213.  Ibid., 385. 214.  See Habermas (1987b), 385; see also Habermas (1975), 61–68, 93. 215.  Habermas (1987b), 330; see also ibid., 327, 355. 216.  Ibid., 309. In an alternative and less clear formulation, Habermas writes that we can speak of colonization when “the destruction of traditional forms of life can no longer be offset by more effectively fulfilling the functions of society as a whole” (Ibid., 322). 217.  Ibid., 355. 218.  Ibid., 330–331. 219.  Ibid., 348–351. Habermas is not altogether clear about the employee role. He notes that compensation and security against risk have improved but that work remains “heteronomously determined.” 220.  Ibid., 356. 221.  Ibid., 357. 222.  For a contrary judgment, see Tweedy and Hunt (1994), 307. 223.  Habermas (1987b), 362–363. 224.  Ibid., 364. 225.  See ibid., 363–364, 368–373. 226.  Ibid., 365–366. 227.  Habermas (1996), 562 n48. 228.  McCarthy criticizes the thinness of Habermas’s account of the political system in Theory of Communicative Action, as well as his treatment of it as the administrative (rather than political) system. See McCarthy (1991), 124–125. 229.  Habermas had developed the beginnings of this notion in an essay published in 1976. See Habermas (1977), 3. But in Theory of Communicative Action, published just five years later, this “communications concept of power” gives way to the concept of power as steering medium. 230.  See Habermas (1987b), 319.

2.  habermas’s “reconstruction” of modern law Portions of this chapter were adapted from “Habermas’s Discourse Theory of Law and Democracy,” Buffalo Law Review 50: 205–340 (2002). 1.  Habermas (1996), 29. 2.  See Habermas (1996), 67–68; see also, for example, Weber (1978), 31, 213 (Vol. I). 3.  See, for example, Weber (1978), 31–33, 311–313 (Vol. 1). 4.  See Habermas (1996), 69–70. 5.  Ibid., 82 (emphasis omitted). 6.  See ibid., 106–107. 7.  The word “Faktizität” is not so rare as the English word “facticity.” The latter, however, shows up at least in unabridged dictionaries, and is defined as “having the quality of being a fact.” The Oxford English Dictionary, 652 (Vol. 5) (2d ed. 1989).



Notes to Chapter 2

8.  See Habermas (1996), 8, 28–30, 32, 64, 198, 447–448 (coercive enforcement); ibid., 198 (certainty or predictability); ibid., 64 (law’s institutional dimension); ibid., 28, 95, 447–448 (positivity). 9.  See ibid., 29; see also ibid., 38, 64, 95, 198, 447–448. 10.  I say “proper” because Habermas sometimes calls his whole project the “discourse theory of law and democracy.” This part comprises Chapters 3 through 6 of Between Facts and Norms. (The first two chapters are introductory, designed to set out the basic distinction between facticity and validity.) 11.  See Habermas (1996), 38, 82. 12.  See, for example, ibid., 64, 82, 95. 13.  Ibid., 42. 14.  In this respect, and ironically, Habermas’s recent work seems close in logic to the theory of autopoietic systems developed by Niklas Luhmann—Habermas’s long-time partner in debate and still the object of Habermas’s polemic. Luhmann’s recurring strategy is to identify an “internal” and an “external” side of a distinction— as between “self-reference” and “external reference,” “closure” and “openness,” or “system” and “environment”—then to show that each side of the distinction presupposes the other. See, for example, Luhmann (1993), 74, 76, 83, 223–224, 308; Luhmann (1998), 23. As Luhmann notes, however, the distinction between facticity and validity is not one of mutual exclusion. See Luhmann (1998), 161. In this respect, the facticity/validity distinction differs from the distinctions on which Luhmann’s method thrives. Perhaps for this reason, Luhmann does not see a parallel between Habermas’s rhetorical strategy and his own. I have discussed systematically Luhmann’s autopoietic theory of law in Baxter (1998). 15.  I say “seem to divide” because Habermas does not make the claim explicitly. 16.  See Habermas (1996), 82, 129, 136. 17.  Ibid., 82–83. 18.  See ibid., 127. 19.  Ibid., 99. 20.  Ibid., 85–89. 21.  See ibid., 101–102. 22.  Ibid., 94 (emphasis omitted). 23.  See ibid., 105–106, 449. 24.  See ibid., 105. 25.  Ibid., 105–106. 26.  See ibid., 97–98. 27.  See ibid., 111. 28.  See ibid., 79, 110. 29.  See ibid., 155–156. 30.  Ibid., 108. 31.  Ibid., 105–106, 113, 118, 452, 453. 32.  See ibid., 114–115. 33.  See ibid., 153. 34.  See ibid., 115–116. 35.  See ibid., 105, 107.

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Notes to Chapter 2 36.  Ibid., 118. 37.  See ibid., 104, 120. 38.  Ibid., 104. 39.  Ibid., 119–120. 40.  Ibid. 41.  Ibid., 120. 42.  See Günther (1998), 238. Ulrich Preuss suggests that on this point Habermas needs a theory of civic obligation and virtue. See Preuss (1998), 334–335. In his reply, Habermas makes clear that he means only that there can be no legally enforceable duty to exercise one’s communicative freedom (Habermas (1998h), 438). Habermas does not preclude a moral duty to exercise one’s political autonomy, although Preuss is right that Habermas does not argue for such a duty. 43.  Habermas notes that his prior work has failed to distinguish adequately between the discourse principle in general and the version appropriate to moral discourse (Habermas (1996), 108). 44.  Ibid., 107. 45.  Ibid. Habermas’s idea that agreement on a norm in an ideal rational discourse constitutes the norm’s validity has been challenged by (among others) epistemic theorists. For a good account of these criticisms circa 1998, see Bohman (1998), 401–407. 46.  Niklas Luhmann makes this observation and argues that Habermas relies on the ambiguity of the word could. See Luhmann (1998), 164–165. I take up this point with respect to the “democracy principle,” corollary of the discourse principle. 47.  Habermas (1996), 107–108. 48.  Ibid., 108, 165–166, 283. 49.  He introduces the idea in a discussion of Kant’s distinction between legal and moral norms. See ibid., 111–112. He invokes it a second time in the context of, again, distinguishing between legal and moral norms. See ibid., 118–119. 50.  Ibid., 119, 122; see also Rehg (1998), 262 (referring to “what Habermas calls the ‘legal medium’ or ‘legal form’ ”). 51.  In Theory of Communicative Action, Habermas did claim that in at least some of its operations, law functioned as a steering medium like money or power. See Habermas (1987b), 365–373. He repudiates this notion expressly in Between Facts and Norms. See Habermas (1996), 562 n48. 52.  Habermas (1996), 56. 53.  Ibid., 119. He says, in an alternative formulation, that “the general right to liberties” is “constitutive for the legal form as such” (ibid., 121). 54.  See ibid., 119. 55.  Ibid., 122. Here he seems to equate the legal medium with “the conditions for the legal form of a horizontal association of free and equal persons.” Ibid. 56.  Ibid. 57.  Ibid., 123. 58.  Ibid., 107. 59.  I think this is the answer to the question Joshua Cohen raises: “I don’t see how the discourse principle gives us equal liberties” (Cohen (1999), 395).



Notes to Chapter 2

60.  This formulation might be more Rawlsian than Habermasian—and more early-Rawlsian than late-Rawlsian. But alternative justifications are not obvious. Insofar as it validates moral norms, the discourse principle takes the form of a strict universalization principle. See Habermas (1996), 116–117. So one might think that equality of legal liberties follows straight from the discourse principle. But as noted in text above, the “reference system” for legal norms is narrower—a legal community, not humanity at large. Perhaps, though, the idea is that the discourse principle imports a more limited universalization requirement for legal norms, such that within a legal community the distribution of liberties must be equal. Still, the question would remain: Why the “greatest possible measure” of equal individual liberties? How does the discourse principle imply this requirement (sensible as it might be)? 61.  See Habermas (1996), 123–124. 62.  Ibid., 126. 63.  Ibid., 118. 64.  Another way to reach this same conclusion would be to note that the concept of the “legal medium” (or “legal form”) is too abstract to generate a list of particular rights. There are a variety of ways to distribute liberties without violating the idea of modern law. 65.  Ibid., 122. 66.  Ibid., 124–125. 67.  See ibid., 123–125. 68.  Ibid., 123. 69.  Ibid. 70.  See ibid., 127. 71.  See ibid., 118. 72.  See Alexy (1994), 232–233. 73.  Alexy points to the fact that Habermas, in describing actual constitutional orders, sees basic rights as a constraint on majoritarian lawmaking. See ibid., 233. 74.  Habermas (1996), 26; see id at 23–24, 42. At least apparently inconsistently, Habermas also describes the tension between facticity and validity as “ ‘given’ with the fact of the symbolic infrastructure of sociocultural forms of life” (ibid., 446). 75.  See ibid., 126. 76.  Ibid., 111. 77.  Ibid., 110. I have amended the translation, rendering Gesetze as “laws” rather than as “statutes.” 78.  Cf. Luhmann (1998), 164–165 (noting the ambiguity of the word could in the discourse principle’s criterion that “all potentially affected persons could agree as participants in rational discourses”). 79.  Habermas (1996), 166; see also ibid., 108, 140. 80.  Ibid., 282; see also ibid., 155. 81.  I say this with the proviso that the categories are, at this point in Habermas’s analysis, just “unsaturated placeholders,” not fully specified legal rights. 82.  Habermas (1996), 123. For the connection to the welfare-state project, see ibid., 77, 415.

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Notes to Chapter 2 83.  Ibid., 123, 134. 84.  Ibid., 123. 85.  Rawls uses the expression “device of representation” to describe his use of the original-position idea. See, for example, Rawls (2005), xxix, 24, 25. His alternative description is that it is “a thought-experiment for the purpose of public- and self-clarification” (Rawls (2001), 17). 86.  Rawls (2005), 24–25; Rawls (2001), 15. According to Rawls, it is “one of our considered convictions that the fact that we occupy a particular social position, say, is not a good reason for us to accept, or to expect others to accept, a conception of justice that favors those in that position. . . . To model this and other similar convictions, we do not let the parties know the social position of the persons they represent” (Rawls (2001), 18). 87.  For example, Rawls stipulates that the parties to the contract do not know which comprehensive doctrines are affirmed by the citizens they represent because “reasonable pluralism” in such matters is a “permanent feature of the public culture of democracy” (Rawls (2005), 36). He develops the content of public reason by reflection on “fundamental political ideas viewed as implicit in the public political culture of a democratic society” (ibid., 223). Rawls’s list of basic liberties comes from “specif[ying] the common and guaranteed status of equal citizens in a well-ordered democratic society” (ibid., 335). And he adopts his general idea that the principles of justice would be those “agree[d] to by the representatives of free and equal citizens when fairly situated” because, Rawls says, that idea is rooted in “fundamental ideas of the public political culture as well as in citizens’ shared principles and conceptions of practical reason” (ibid., 97). 88.  Strictly speaking, of course, Habermas generates abstract categories of rights rather than principles. 89.  Rawls (2005), 5. 90.  Habermas (1996), 122 (emphasis omitted). 91.  Rawls (1971), 302. 92.  Habermas (1996), 122. 93.  Rawls (2005), 5. 94.  See ibid., 166. 95.  See, for example, ibid., 235. 96.  See ibid., 231–240. For Habermas’s views on the issue, see section 3.2.2. 97.  See Rawls (2005), 228–229. According to Rawls, “constitutional essentials and questions of basic justice” comprise (1) principles specifying “the general structure of government and the political process,” including the various legislative executive and judicial powers, and “the scope of majority rule”; (2) “equal basic rights and liberties of citizenship,” for example, “the right to vote and to participate in politics, liberty of conscience, freedom of thought and of association, as well as the protections of the rule of law” (ibid., 227). 98.  See ibid., 7, 166. 99.  See ibid., 230 (“a social minimum covering citizens’ basic needs count[s] as [a] constitutional essential[] while the principle of fair opportunity and the difference principle do not”). 100.  See ibid., 293, 298, 334–340.



Notes to Chapter 2

101.  Habermas (1995b), 110. 102.  Ibid., 119. 103.  Rawls (2005), 339. 104.  Ibid., 14. 105.  Ibid., 192–193; see also ibid., 195–197. 106.  Rawls (1995), 136–137. 107.  Joshua Cohen argues that this sense in which the discourse principle is nonneutral speaks against using it to support a theory of democracy: Philosophical theories about the nature and competence of reason do not provide the common ground for equal citizens that is desirable in public argument in a democracy. An appeal to reason cannot help us “get behind” the plurality of competing moral, political, religious, metaphysical outlooks, because the nature and competence of reason is one matter on which such outlooks disagree. (Cohen (1999), 387) 108.  Larmore (1999), 614. Habermas withdraws from this position in his more recent writing. See section 5.1.2, discussing Habermas’s 2005 book (translated in 2008) Between Naturalism and Religion. 109.  Larmore argues that Habermas’s discourse principle is substantive and has specifically moral content. See Larmore (1999), 618–622. 110.  Rawls (2005), 5. 111.  Rawls associates the liberties of the moderns with Locke and the liberties of the ancients with Rousseau. See ibid., 4–5. As indicated in text, Habermas tends to refer to “liberal” and “republican” conceptions, and he sees Rousseau as one of the foremost proponents of the latter. 112.  See Habermas (1995b), 110, 127–128. 113.  Ibid., 128. 114.  Rawls writes that we need not decide whether the liberties of the moderns are more intrinsically valuable than those of the ancients; even if the political liberties are thought to be largely instrumental in value, they still may count as basic liberties. See Rawls (2005), 299. 115.  See ibid., 292. 116.  See ibid., 292, 299. 117.  See ibid., 5, 327; see also ibid., 329–331. 118.  See Habermas (1995b), 128. 119.  See Rawls (2005), 290, 293, 298. 120.  See ibid., xix. After his debate with Habermas, Rawls makes the point more clear in Rawls (2001), 26–29. My argument here is consistent with McMahon (2002), 112–117. McMahon demonstrates that the difference between Rawls’s allegedly “monological” strategy and Habermas’s own “dialogical” strategy is not nearly so important as Habermas suggests. 121.  See Habermas (1996), 104. 122.  See Habermas (1995b), 130–131. 123.  See Habermas (1996), 133, 196, 289; see also ibid., 137, 320, 336. 124.  Ibid., 150.

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Notes to Chapter 2 125.  In this context, the term internal relation seems to mean “conceptual relation.” See ibid., 449, 454. 126.  Ibid., 134. 127.  Ibid., 134. 128.  Ibid., p 133. 129.  See ibid., 47–56, 74, 130–131, 330, 333–136, 341–353, 461, 481; see also Habermas (1987a). 130.  Habermas (1996), 143; Baxter (1998), 2004–2009 (introducing Luhmann’s general notion of binary coding and the legal system’s legal/illegal code in particular). 131.  Habermas (1996), 143. 132.  See Baxter (1998), 2040, 2067–2068 (criticizing Luhmann’s equivocation between “government/opposition” and “governing/ governed”). 133.  Habermas (1996), 143. 134.  See ibid.; see also ibid., 169. 135.  See Luhmann (1988). 136.  See section 4.2.1. 137.  See Habermas (1996), 38, 55. 138.  See ibid., 145. 139.  See Habermas (1977). Then and now, Habermas credits Hannah Arendt with the insight. See Habermas (1996), 146–149. 140.  Habermas (1996), 147. 141.  Habermas (1996), 147. The terms jurisgenesis and jurisgenerative are most closely associated with the work of Robert Cover. See Cover (1983), 11, 25. Both Habermas and Cover emphasize the role of groups outside of official state institutions in producing law. Habermas, however, is interested in how discourse outside of formal state institutions influences the production of state law. Cover’s focus was more on the production of nonstate law, and there not so much through argumentation as through shared forms of life and shared narratives. From his perspective, formal state institutions, and especially courts, are “jurispathic” as well as jurisgenerative. Habermas’s idea of jurisgenesis is thus decidedly more “statist” than Cover’s. 142.  Habermas (1996), 148. 143.  Ibid., 185. 144.  Ibid., 461. 145.  For Habermas’s conception of civil society as a network of voluntary associations, see ibid., 175, 358, 359, 367. For his requirement that civil society must be independent from the state and the economic system, see ibid., 269, 301, 367, 368–369. 146.  Ibid., 301. 147.  See ibid., 288; see also ibid., 296, 298, 372. 148.  Habermas refers to these informal circuits of communication as “subjectless” and “anonymous” (ibid., 136, 171). The likely reason he adopts this characterization is to avoid creating the impression, common in the “deliberative democracy” literature, that there is a single, unified, deliberating subject of democracy. See Rubin (2001), 747–750; Bohman (1994), 914. 149.  Habermas (1996), 170.



Notes to Chapter 2

150.  Ibid., 170–171. 151.  Ibid., 150. 152.  See ibid., 56, 343, 407, 469. 153.  Ibid., 150. 154.  Habermas (1987b), 185; see also ibid., 304, 309, 333, 349, 356, 366, 372. 155.  Ibid., 319–323. 156.  See Habermas (1996), 169, 176, 327. 157.  See Habermas (1993b), 2. 158.  Habermas (1996), 159; see also Habermas (1993b), 3. 159.  Habermas (1993b), 10. 160.  Ibid., 11. 161.  Ibid., 2. 162.  Habermas (1996), 160; Habermas (1993b), 3–4. 163.  Habermas (1993b), 4, 96. 164.  Ibid., 5–6. 165.  Habermas (1996), 160. 166.  See ibid., 108; see also ibid., 97, 161. 167.  Ibid., 160–161. 168.  See, for example, ibid., 101–102, 267–269, 276–279. 169.  See ibid., 267–269, 276–279. 170.  Thomas McCarthy points out that, despite recognizing ethical plurality, Habermas still refers in the singular to a legal community’s “form of life, selfunderstanding, and collective identity” (McCarthy (1998), 130). 171.  See Habermas (1996), 308–314. 172.  Ibid., 309. Michel Rosenfeld notes, however, that Habermas’s “postmetaphysical” theory may have the effect of excluding, or at least devaluing, religious or otherwise “metaphysical” perspectives, as well as perspectives that reject egalitarianism. See Rosenfeld (1998), 101. Habermas’s recent writings about religion, however, take a different position. See Chapter Five, section 5.1.2. 173.  See McCarthy (1998), 115. 174.  Habermas (1996), 107. 175.  See ibid., 151, 285, 296. 176.  See ibid., 97; see also Habermas (1993b), 12. 177.  See Habermas (1996), 159–161; Habermas (1993b), 8. 178.  Habermas formulates his discourse principle in terms of the agreement of “all possibly affected persons.” By this quoted expression he means “anyone whose interests are touched by the foreseeable consequences of a general practice regulated by the norms at issue” (Habermas (1996), 107). 179.  See ibid., 61. 180.  Habermas (1993b), 13. 181.  See Günther (1993), 14. 182.  Habermas (1996), 165–166. 183.  Ibid. 184.  Ibid., 108. 185.  See ibid., 165. 186.  Ibid., 282.

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Notes to Chapter 2 187.  See ibid., 283. 188.  See, for example, ibid., 339. 189.  Jon Elster’s well-known study of “arguing and bargaining” (see Elster (1999–2000) relies on Habermas for its basic distinction. His discussion of Habermas, however, is brief. In my opinion, Elster reduces Habermas’s idea of communicative action to the special case of discourse, and, as I explain in text, I think Habermas’s account places bargaining between communicative and strategic action. Still, Elster’s account is interesting because it explores the strategic use of what purports to be impartial argument. This would be concealed strategic action, in Habermas’s typology, and Elster’s historical account fills out Habermas’s hypothetical-example-based analysis. 190.  Ibid., 230. 191.  Ibid., 166. 192.  Ibid., 190. 193.  Ibid., 192. 194.  See, for example, ibid., 232. 195.  See ibid., 153–155. 196.  Ibid., 155–156. 197.  See, for example, Habermas (1998d). 198.  Ibid., 170–171. 199.  See ibid., 178–179. The discussion in text makes clear that, despite Habermas’s distinction between the communicative power of the citizenry and the administrative power of the state apparatus, state institutions—including legislatures, agencies, and courts—are sites of various kinds of discourse, not just loci of administrative power. Communicative power, then, could be generated within state institutions and not just outside. Cohen nicely formulates the different natures and functions of discourse inside and outside state institutions: Formal political processes—elections, legislatures, agencies, and courts— provide the second stage in an idealized problem-solving system. They provide institutionally regulated ways to assess ideas: to deliberate about proposals under fair conditions, evaluate alternative solutions, and make authoritative decisions after due consideration. So on the second, institutional track we have a disciplined testing through reason of proposals that emerge from open-ended public discussion. (Cohen (1999), 401). 200.  Ibid., 110 (citation omitted). 201.  Cf. McCarthy (1998), 132–133 (noting likely disagreement even as to “such core elements of procedural impartiality as equal consideration and equal treatment”). 202.  McCarthy makes this point forcefully. See ibid., 139, 145. 203.  See Bohman (1994), 921–923; Rehg (1998), 265; McCarthy (1998), 152. As discussed in section 2.3.1, Rawls’s political liberalism also makes use of a unanimity requirement. Both Habermas and Rawls pursue the idea that a political order could in some sense be consented to by all. But for Rawls, the requirement applies only in the original position, where artificial parties rather than the citizenry as a



Notes to Chapter 2

whole deliberate. The informational constraints imposed by the veil of ignorance, together with the limited nature of the agreement, are what make universal agreement conceivable. 204.  Habermas (1996), 182. See generally ibid., 181–186. 205.  Ibid., 171. 206.  Ibid., 183. 207.  See ibid., 302. 208.  See ibid., 130–131, 175, 184, 302, 317, 358, 371, 437, 461. 209.  As Rawls formulates the question: What are “the conditions of the possibility of a reasonable public basis of justification on fundamental political questions?” (Rawls (2005), xix). 210.  Rawls presents the basic problem of political liberalism as the problem of how “there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines” (Rawls (2005), xviii). His solution to the problem is the idea of the overlapping consensus (ibid.). 211.  Habermas (1998h), 444. 212.  Habermas (1996), 64. 213.  See, for example, Rawls (2005), 214. 214.  Rawls suggests that “most” political questions are not matters of constitutional essentials or basic justice. See Rawls (2005), 214. 215.  See, for example, Rawls (2005), 14. 216.  Habermas (1996), 356. 217.  See Habermas (1996), 372. 218.  See Habermas (1996), 189. 219.  See ibid., 190. 220.  Ibid., 172. 221.  Ibid. 222.  For a defense of Habermas’s discourse theory on this point, see Peterson (2010). I take up the matter in section 3.1. 223.  See Habermas (1996), 172. He addresses briefly the “pragmatic” reasons often given for separating lawmaking from law applying, having to do with judicial professionalization and specialization. 224.  Ibid. 225.  Ibid., 192. 226.  See ibid., 169. 227.  Ibid., 173. 228.  See ibid., 190. 229.  Ibid., 191. 230.  Ibid., 211. 231.  Ibid., 191–192. 232.  See ibid., 186, 189–192. 233.  Ibid., 187. 234.  See, for example, Habermas (1984c), 396–400. 235.  Habermas (1998h), 444. 236.  Habermas (1996), 7.

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3.  discourse theory and the theory and practice of adjudication Portions of this chapter were adapted from “Habermas’s Discourse Theory of Law and Democracy,” Buffalo Law Review 50: 205–340 (2002). 1.  Habermas (1996), 195–197. 2.  See ibid., 195–196. 3.  James Bohman, a philosopher, finds it “odd that Habermas spends so much time” discussing adjudication rather than legislation. See Bohman (1994), 910 n.20. His perspective reflects the disciplinary difference between philosophy and law. 4.  See Habermas (1996), 197–199. 5.  Ibid., 199. On the meaning of “external justification,” see Alexy (1989), 230: “Internal justification is concerned with the question of whether an opinion follows logically from the premisses adduced as justifying it. The correctness of these premisses is the subject-matter of external justification.” 6.  See Habermas (1996), 197. 7.  Ibid., 192. 8.  Under the heading of “legal realism,” Habermas considers American legal realism, interest jurisprudence (Interessenjurisprudenz), and the “Free Law” school (Freirechtsschule). See ibid., 201, 538 nn10–11. 9.  See ibid., 201. 10.  See ibid., 201–203. 11.  See ibid., 199–200. 12.  One problem, of course, is that the body of work referred to as “legal realism”—or even “American legal realism”—is diverse in style, subject matter, and conclusions. Habermas would have done better to consider one or another “realist” rather than try to characterize “realism” generally in two paragraphs. But the idea that “realism” flatly revoked the certainty guarantee seems consistent only with one early work by Jerome Frank. See Frank (1970) [1930] 46–52 (interpreting the quest for legal certainty as [in part] a projection of infantile needs). But much “realist” work could be seen as recasting rather than “revoking” the idea of legal certainty. A more characteristic realist argument is not that we cannot predict the outcome of most legal disputes but, instead, that any predictive capacity we have depends less on analysis of black-letter legal rules than commonly has been thought. At least a significant body of “realist” work was directed toward increasing the predictability and certainty of legal rules—partly by verbal reformulation but also by improving the information available to decision makers (through procedural and other changes), by finding better decision makers than generalist judges and juries, and to some extent, by crafting different systems of rules that would more closely track reasonable procedures in the field being regulated. This list of “realist” reform strategies suggests also that the concern for “rightness” was not simply a matter of trusting judges to take on a policy-making role. A characteristic “realist” argument was that judges always had been performing that role but usually covertly, sometimes unconsciously, and often badly. And at least for some important “realist” thinkers, both procedural changes and incorporation of reasonable extralegal norms could improve the rightness of adjudicative decisions.



Notes to Chapter 3

13.  William Forbath argues that a better understanding of legal-realist thinking would have improved Habermas’s account of the economic and administrative system. See Forbath (1998b), 279–283, 286. 14.  See, for example, Dworkin (1986), 14–15. 15.  See Habermas (1996), 203 (regarding Dworkin). 16.  See Dworkin (1986), 30. 17.  Dworkin does not always describe this second dimension of interpretation as “justification,” but sometimes he does. See ibid., 239, 255. He refers on other occasions to the dimension of “substance” or (in discussing legal interpretation) “justice.” More recently, in Justice as Robes, he has used the term justification to describe the process that comprises both dimensions, with at least “rough fit” required for a “competent justification” (Dworkin, 2006, 15). 18.  See Dworkin (1986), 239. 19.  Habermas (1996), 211. 20.  See ibid., 198–199. 21.  See ibid., 212–213. 22.  See ibid., 213–214. 23.  Ibid., 216. 24.  See ibid., 216–217. 25.  Dworkin (1986), 268–271; Habermas (1996), 208–209. According to German legal theorist Robert Alexy, Dworkin’s idea is that “valid rules apply in an all-or-nothing way” while “principles only contain reasons pointing in a certain direction but not necessarily requiring a particular decision.” This idea, he says, is “simplistic and needs to be more nuanced” (Alexy, 2002, 57). Rather than the vector metaphor of pointing, Alexy prefers the metaphor of “weight” and “balancing.” The conflict of principles is to be determined by balancing and “establishing a conditional relation of precedence between the principles in the light of the circumstances of the case.” See Alexy (2002), 47–57. Alexy connects this balancing approach to the practice of the German constitutional court. As discussed in the following section, Habermas is critical of the court’s balancing approach. In this, he sides with Klaus Günther, who rejects the balancing metaphor and distinguishes between two kinds of discourse (justification and application) rather than just two kinds of norm (rule and principle). See Günther (1993), 210–219. 26.  Habermas (1996), 217. 27.  Ibid., 217–218. 28.  As Peterson describes Günther’s theory of the application process: “Selecting one norm by coherently ordering the conflicting applicable norms in an ‘exhaustively’ described situation does not permanently rank the norms; the unselected applicable norm(s) remain prima facie valid and available to be applied in other situations” (Peterson (2010), 36). 29.  Habermas’s main example from critical legal studies scholarship is Kennedy (1976) 30.  See Günther (1993), 228–245 for his “logic of appropriateness argumentation,” the form of argumentation employed in application discourses. Here, but

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Notes to Chapter 3 not in justification discourses, the standard is essentially one of coherence. See ibid., 244. 31.  See Habermas (1996), 219. 32.  Alexy writes: “The idea of the discourse of application is at the same time correct, empty, and easy to misunderstand. It is correct as far as it expresses the old hermeneutic demand for the consideration of all aspects. This demand is an elementary postulate of rationality. It is empty because it does not say which aspects are to be considered in what way” (Alexy (1998), 231). 33.  See Alexy (1998), 226, 231. 34.  Habermas (1996), 220. 35.  See ibid., 197–198. 36.  Ibid., 220. 37.  Ibid., 201. 38.  See ibid., 433, 435. 39.  Günther suggests that “paradigms” might be helpful in selecting which features of a situation should count as relevant in an application discourse (Günther (1993), 245). 40.  Ibid., 194–195. For Niklas Luhmann’s treatment of this problem within the theory of autopoietic systems, see Luhmann (2004), 423–463. 41.  Habermas (1996), 195. 42.  See, for example, ibid., 195, 221–222, 389–391, 409–410, 414–415, 437. Sometimes Habermas refers only to the former two paradigms, but usually when viewing them from the perspective of his own. See ibid., 250–251, 401–402, 407, 418–419. 43.  See Alexy (1998), 231. 44.  See Habermas (1996), 221. 45.  Ibid., 252 (quoting Sunstein (1990), 170–171). Sunstein’s proposal is as follows: Where there is ambiguity, courts should construe regulatory statutes so that (1) politically unaccountable actors are prohibited from deciding important issues; (2) collective action problems do not subvert statutory programs; (3) various regulatory statutes are, to the extent possible, coordinated into a coherent whole; (4) obsolete statutes are kept consistent with changing developments of law, policy, and fact; (5) procedural qualifications of substantive rights are kept narrow; (6) the complex systemic effects of regulation are taken into account; and most generally, (7) irrationality and injustice, measured against the statute’s own purposes, are avoided. 46.  See Habermas (1996), 252–253. 47.  See ibid., 221, 224–225. 48.  Mark Modak-Truran also criticizes Habermas’s suggestion that “paradigms” can significantly ease the problem of legal indeterminacy. See ModakTruran (2007), 110–116. I differ from Modak-Truran, however, in that I don’t see Habermas’s paradigms as themselves norms. Cf. ibid., 111. 49.  Habermas (1996), 222–224. Andrew Arato defends this idea of a public sphere that would constrain courts, particularly in their exercise of constitutional



Notes to Chapter 3

jurisdiction, but notes that Habermas has not gone far in addressing questions of institutional design. See Arato (1998), 32–34. 50.  The real use of this “open society of interpreters” idea is to provide a check, called for by discourse theory’s prodemocracy tilt, in cases where courts engage in what might be considered lawmaking rather than law-application. 51.  Habermas (1996), 235–237. 52.  Ibid., 238. 53.  One of the four cases Dworkin uses to illustrate his theory of constructive interpretation is a common-law case (see Dworkin (1986), 23–29), and he devotes a chapter to “the common law” (see ibid., 276–312), alongside his chapters on “statutes” and “the constitution.” 54.  See Kemp (1999). Victor Peterson argues that “accusations that Habermas disregards common law adjudication are easily refuted, because Between Facts and Norms repeatedly acknowledges the reality of the creative development of law by the judiciary” (Peterson (2010), 53). I have noted the same references as Peterson, but, as explained in text, I assess the overall picture differently. 55.  See, for example, Weber (1978), 641–900 (Vol. 2). 56.  See Luhmann (2004), vii. In his commentary on Between Facts and Norms, Luhmann notes that Habermas places “a very traditional emphasis on legislation, thereby underestimating judicial lawmaking” (Luhmann (1998), 166). 57.  Cf. Habermas (1996), 172–174. 58.  Cf. ibid., 280, 440. For a suggestion that Habermas needs to think further about questions of institutional design, see Arato (1998), 32–34. A basic problem is that the lay public probably is less interested in the constraints Habermas would place on judicial activity and more interested in politically desirable outcomes. 59.  Cf. Habermas (1996), 120–121. 60.  Ibid., 198. 61.  See Peterson (2010), 76–87. 62.  Habermas (1996), 190. 63.  Ibid., 193. 64.  Ibid., 439. 65.  Ibid., 440. 66.  Christopher Zurn comes to a similar conclusion about Dworkin’s idea of constructive interpretation, which, despite Dworkin’s application of the idea to statutory and constitutional cases, is essentially a common-law form of reasoning. Habermas proposes to add to Dworkin’s analysis “a dialogic twist, as it were, by subjecting Hercules’s lonely considerations to the broader intersubjective scrutiny of a juridical public sphere.” But as Zurn notes, “It remains an open question whether the multiplication of Hercules is sufficient to render the method of constructive interpretation sufficiently democratic” (Zurn (2007), 247 n33). The same conclusion follows, I think, with respect to specifically and professedly commonlaw forms of reason. 67.  See Habermas (1996), 212, 214. 68.  Peterson suggests that the answer is “no”: Habermas’ discourse theory of law and democracy cannot simply reject common law as undemocratic, because it aims to succeed not only as a

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Notes to Chapter 3 philosophical theory of justice, but also at the level of legal theory. For Habermas, legal theory differs from philosophy of law in presupposing the basic principles and institutions of a particular legal order, which in the U.S. includes common law. (Peterson (2010), 75). 69.  See Habermas (1996), 240–241, 243–244. 70.  See ibid., 174, 245, 249–250, 263, 269, 407. 71.  See ibid., 250. 72.  Ibid. 73.  Bernhard Schlink, a former German constitutional-court judge, law professor, and most recently best-selling author (The Reader), has argued that the German high constitutional court’s alleged “value-orientation” is a “myth” and “fiction.” See Schlink (1998), 371. 74.  Ibid., 254–256. 75.  533 U.S. 27 (2001). 76.  I select an opinion authored by Justice Scalia because he is a sharp critic of the idea that constitutional courts may make law. His preferred “textualist” approach would interpret the Constitution to discover its “original public meaning,” that is, the meaning it would have had to an ordinary interpreter at the time of the framing or ratification. See Scalia (1997). 77.  533 U.S., 31; see also ibid., 34, 37, 40. 78.  Ibid., 31–32, 35, 37. 79.  Another potentially applicable interpretive principle would focus on the meaning of constitutional texts rather than the purpose of constitutional rights protection: The meaning of a constitutional provision, according to this principle, is its original public meaning, that is, the meaning it had at the time of ratification. For a sustained defense of this thesis, see Solum (2008). 80.  See ibid., 34, 38–39, 40. 81.  Zurn (2007), 257. 82.  Habermas’s account of application discourses emphasizes strongly the singularity of decision. See Habermas (1996), 229. 83.  Alexy (1993), 167. 84.  Ibid., 439. 85.  Christopher Zurn correctly points out the sharp tension between Dworkin’s idea of constructive interpretation and Habermas’s conception of democracy. See Zurn (2007), 247 n33. In a recent tribute to Dworkin, Habermas has raised the question of “what influence may, or even should, a judge’s moral convictions have on his rulings?” (Habermas (2009h), 38). But neither in that essay nor (to my knowledge) anywhere else has Habermas clearly and systematically addressed Dworkin’s idea of a “moral reading of the constitution.” See Dworkin (1996), 1–38. In both its recommendation of a “moral reading” of the Constitution and its (continuing) near-exclusive focus on courts as constitutional interpreters, Dworkin’s work seems to me difficult to reconcile with Habermas’s critique of “value jurisprudence” and judicial paternalism. 86.  Dworkin (1986), 225. 87.  Cf. Michelman (1998), 321–322 (noting that the distinction between application and justification is difficult in constitutional practice).



Notes to Chapter 3

88.  See Habermas (1996), 212–213. 89.  Ibid., 172. 90.  Alexy (2002), 4, 93. 91.  Ibid., 44, 47–50. 92.  Ibid., 50. Dworkin, too, uses the language of weight: The weight of a right is “its “power to withstand” competition with a another principle or policy. See Dworkin (1977), 92. 93.  In Alexy’s terminology, “balancing” is “proportionality in the narrow sense.” It, together with the ideas of “necessity” (or, “use of the least intrusive means”) and “suitability,” comprise proportionality in the broader sense. 94.  Ibid., 50–51, 52–53. 95.  Ibid. (quoting BVerfGE vol. 7, 198, 215). 96.  Alexy (2003), 133 (quoting BVerfGE vol. 81, 242, 254). 97.  Alexy (2003), 93. 98.  Alexy (2002), 86. 99.  Ibid., 93. 100.  Ibid., 88. 101.  Ibid., 87, 93. 102.  Ibid., 93. 103.  Ibid., 100–101. 104.  Ibid., 62. 105.  Basic Law, article 1(1)(1). 106.  Alexy (2002), 63. 107.  Habermas (1996), 192; see also ibid., 283. 108.  Ibid., 262. 109.  Gunther Teubner argues that legal practice, including judicial practice, is indifferent to the principle/value distinction in its “balancing” procedures. See Teubner (1998), 186. 110.  Habermas (1996), 154 (emphasis added). No doubt Habermas is nervous about interpreting constitutional provisions as deals to be enforced. But, if that is his concern, a more plausible “reconstruction” of modern democracies’ “normative self-understanding” might be a canon that constitutional norms should be interpreted in a public-regarding way, not as deals. That seems to me more plausible than the idea of a “firewall” between legal norms and values or collective goals. 111.  Cf. Michelman, supra, 321 (“The practical-institutional logic of constitutionalism precludes anything like a strict working dissociation of justification from application”). 112.  Habermas (1996), vi. The title to Section 6.2 of Between Facts and Norms is “Norms versus Values: Methodological Errors in the Self-Understanding of the Constitutional Court.” 113.  Habermas (1996), 172, 192. 114.  Ibid., 99–100. 115.  Ibid., 268. 116.  See ibid., 174, 245, 249–251, 263. 117.  See ibid., 268–269, 269–270. 118.  Ibid., 272.

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Notes to Chapter 3 119.  See ibid., 270, 298. 120.  Ibid., 272, 273–274. 121.  Ibid., 263–264. 122.  Alexy (2002), 352, 354. Alexy states that “all agree” that German constitutional norms have this effect (ibid., 354). 123.  See Habermas (1996), 402–403. 124.  Alexy (2002), 355–356. 125.  Ibid., 362. 126.  Ibid., 358. 127.  Habermas (1996), 268, 270. 128.  Michelman (1988), 1531. 129.  Habermas (1996), 275 (citing Michelman (1988), 1531). 130.  Habermas (1996), 275–276. 131.  Ibid., 279. 132.  See ibid., 267–268, 279 (discussing classical republican notions of politics without distinguishing Michelman’s neorepublican view). 133.  Ibid., 277. 134.  See ibid., 268–269, 278. 135.  See ibid., 279. 136.  See Michelman (1988), 1505–1506. 137.  Ibid., 1526. 138.  See ibid. (referring to “the challenge of reclaiming the idea of jurisgenerative politics from its ancient context of hierarchical, organicist, solidaristic communities for the modern context of equality of respect, liberation from ascriptive social roles, and indissoluble plurality of perspective”). 139.  Ibid., 277. 140.  Michelman (1988), 1508–1509. 141.  Ibid., 1515–1518. 142.  Michelman points out in a reply to Habermas that if one believed society to be totally and consensually integrated, then a cross-section of the population, not full engagement of the citizenry, would suffice. And so the alleged connection between the “deep consensus” assumption, on one hand, and republicanism’s demanding notion of participation, on the other, seems lacking. See Michelman (1998), 314–315. 143.  Habermas (1996), 278. 144.  Michelman (1988), 1525. 145.  Bowers v. Hardwick, 478 U.S. 186, 196 (1986). 146.  Michelman (1988), 1495. 147.  Ibid., 1537. 148.  Ibid. 149.  The passage Habermas quotes is as follows: “The Court helps protect the republican state—that is, the people politically engaged—from lapsing into a politics of self-denial. It challenges ‘the people’s’ self-enclosing tendency to assume their own moral completion as they now are and thus to deny to themselves the plurality on which their capacity for transformative self-renewal depends” (ibid., 1532). 150.  Ibid.



Notes to Chapter 3

151.  The work of John Hart Ely is important here, particularly the part of his “representation-reinforcing theory” directed toward “facilitating the representation of minorities” (Ely (1980)). Ely’s connection to Supreme Court case law is the famous footnote four of United States v. Carolene Products Co., 304 U.S. 141, 152 n4 (“discrete and insular minorities”). 152.  For Michelman’s substantive argument, see Michelman (1988), 1532–1536. 153.  Habermas (1996), 265. 154.  See Ely (1980), 105–180. 155.  Forbath (1998a), 995. 156.  Forbath notes, in the context of Habermas’s theory more generally, the diametrically different political interpretations that Richard Posner and Frank Michelman gave Between Facts and Norms in their book reviews (ibid., 998 n27). 157.  Habermas (1996), 280. 158.  See ibid., 376–378. 159.  Ibid., 386. 160.  Ibid., 378–379. 161.  The Court recently has stated: Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. (Citizens United v. FEC (January 21, 2010), slip opinion, 24 (citations omitted)). 162.  Joseph Staats suggests that “Habermas’s more recent work fails to capture fully the way in which corporate power can corrupt the democratic process” (Staats (2004), 585). Specifically, Staats says, “we must study the impact on democracy of the modern corporation, especially as it is expressed through the modern mass media” (ibid.). But Staats’s account of how “corporate power allied with the mass media is able to use powers of agenda control definition” to “corrupt[] the democratic process” (see ibid., 590–593) seems to be an elaboration of the argument Habermas makes in Between Facts and Norms, not a correction of mistaken principle. In Chapter Five, I discuss Habermas’s revision of the model he uses in Between Facts and Norms and how his most recent work addresses the issue Staats identifies. 163.  See Habermas (1996), 368–369. 164.  Ibid., 265. 165.  This is Ely’s suggestion for the case of groups whose access to the political process, once effectively blocked, no longer is so—but who cannot reasonably be expected to exhaust their political capital on repealing outdated statutes. See Ely (1980), 169. 166.  Habermas (1996), 265. 167.  The U.S. Supreme Court has recognized this point expressly and refused to grant third parties relief: “Many features of our political system—e.g., single-member districts, ‘first past the post’ elections, and the high costs of campaigning—make it difficult for third parties to succeed in American politics. But the Constitution does

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Notes to Chapter 3 not require States to . . . move to proportional-representation elections or public financing of campaigns” (Timmons v. Twin Cities Area New Party, 520 U.S. 351, 362 (1997); citation omitted). 168.  The German system mixes proportional representation with more American-style single-district representation. 169.  377 U.S. 533 (1964). 170.  See Rawls (2001), 149. Rawls acknowledges that these and related reforms (equalizing access to public media, for example) may “infringe upon the freedoms of speech and press,” but these liberties are no more absolute than the political liberties with their guaranteed fair value. In adjusting these basic liberties one aim is to enable legislators and political parties to be independent of large concentrations of private economic and social power in a private-property democracy, and of government control and bureaucratic power in a liberal socialist regime. This is to further the conditions of deliberative democracy and to set the stage for the exercise of public reason. (Ibid., 149–150) In Political Liberalism, Rawls presents an extended critique of the Supreme Court’s campaign-finance cases, particularly Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) and First National Bank v. Bellotti, 435 U.S. 765 (1978). Buckley and Bellotti were the cases on which the Court recently relied most heavily in overruling two decisions that limited business corporations’ ability to spend general treasury money on campaign speech. See Citizens United v. FEC (January 21, 2010), slip opinion, 28–46. 171.  Rawls (2005), 360. 172.  Dworkin (2006a), 129. 173.  Ibid., 151. For Dworkin’s immediate criticism of the Citizens United decision, see Dworkin (2010). 174.  Citizens United, slip opinion, 3, quoting 2 U.S.C. §434(f)(3)(A). 175.  For explanation of “soft money” and its relation to the “phony issue ads” (or, “sham issue advocacy”) that were a staple of “electioneering communications,” see the Court’s decision upholding the soft-money ban, McConnell v. FEC, 540 U.S. 93, 122–132 (2003). The Court emphasized substantial evidence before Congress that soft money bought access to elected officials and otherwise either “ha[d] a corrupting influence or g[a]ve rise to the appearance of corruption” (540 U.S., 145). The classic example of the “phony issue ad”: Announcer: Who is Bill Yellowtail? He preaches family values, but he took a swing at his wife. Yellowtail’s explanation? He only slapped her, but her nose was not broken. He talks law and order, but is himself a convicted criminal. And though he talks about protecting children, Yellowtail failed to make his own child support payments, then voted against child support enforcement. Call Bill Yellowtail and tell him we don’t approve of his wrongful behavior. Call (406) 443-3620.



Notes to Chapter 3

The ad does not expressly call upon the listener to vote against Bill Yellowtail, but that unmistakably is the central (really, only) message. While the group that ran the ad was formally independent of the campaign of Yellowtail’s opponent, the expenditure on the ad is functionally equivalent to a contribution to that campaign. 176.  A prominent example of those groups includes, from the 2004 election, the “Swift Boat Veterans for Truth” who targeted presidential candidate John Kerry’s war record. The majority of 527 money, however, has been on the side of Democratic/liberal causes. See the analysis by the Center for Responsive Politics, online at www.opensecrets.org/527s/. 177.  See Transcript of Oral Argument in Citizens United v. FEC (September 9, 2009), 22. Justice Stevens’s dissent in Citizens United points to the follow-up question by Justice Kennedy, who went on to author the Citizens United opinion. Indeed, Stevens implies that the Court, not Congress, may be targeting the softmoney ban. Citizens United (Stevens, J., dissenting) (slip op., 21 n. 22). 178.  See, e.g., Persily (2010). In a case many observers thought was headed for the Supreme Court, the U.S. District Court for the District of Columbia noted the “disparity,” due to the soft-money ban, that disfavors national political parties “as compared to outside groups.” While that court noted that, as a lower court, it was bound by Supreme Court precedent to uphold the ban, it expressly flagged the issue for Supreme Court review (Republican National Committee v. FEC, 698 F.Supp.2d 151, 160 note 5; DDC 2010). As it happened, however, the Supreme Court decided not to hear the case (and thus, at this time, the issue). Three Justices (Scalia, Kennedy, and Thomas) dissented from the denial of review. See 130 S. Ct. 3544 (2010) (June 29, 2010). 179.  Citizens United, slip opinion, 55. 180.  See Lessig (2010). 181.  The term was coined to describe a salamander-shaped district drawn in 1812 by Massachusetts governor Elbridge Gerry to favor his party. While the practice undoubtedly goes back earlier, the specifically partisan gerrymander depended on the coalescing of a party system in the early Republic. 182.  Because all agree that the framers of the Constitution affirmatively sought to discourage the formation of political parties, it would be difficult to argue that the Constitution as originally ratified would give partisan gerrymanders special protection. 183.  An additional technique is “tacking,” or “reaching out from the bulk of a district to grab a distant area with specific desired (usually partisan) demographics” (Levitt (2008), 56). A third technique is “shacking,” through which district lines are “redrawn so an incumbent’s residence (her ‘shack’) is in a district that no longer contains her current constituents,” and ideally so as to pit the disfavored incumbent against another incumbent (Issacharoff and Karlan (2004), 552). 184.  See Issaacharoff, Karlan, and Pildes (2009), 880. 185.  See, for example, Issacharoff and Nagler (2007). The evidence these authors discuss concerns Congress; the same forces, however, are at work in state legislatures. 186.  See Davis v. Bandemer, 478 U.S. 109 (1986).

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Notes to Chapter 3 187.  See Vieth v. Jubelirer, 541 U.S. 267 (2004). Justice Kennedy was the fifth vote for the possibility of granting relief in some future case, but he declined to commit himself to a constitutional standard (541 U.S., 306). Justices Stevens, Souter, and Breyer stated different versions of what they believed to be the proper judicial test. 188.  See LULAC v. Perry, 548 U.S. 399 (2006). 189.  Some argue that the 2006 and 2008 elections have demonstrated that partisan gerrymanders are inherently self-limiting—that is, that the democratic system itself contains the antidote for partisan gerrymanders without judicial intervention. For a good overview of the argument and evaluation of the 2006 and 2008 results, see Note (2009). 190.  See Vieth, 541 U.S., 293. 191.  Vieth, 541 U.S., 275 (opinion of Scalia, J.) (citing Article I, section 4 of the U.S. Constitution). 192.  See Fairness and Independence in Redistricting Act, 111th Cong., S. 1332 and H.R. 3025 (2009). 193.  See Levitt (2008), 20–22. For computer-generated redistricting, the idea would be to let politically more neutral criteria—compactness, contiguity, respect for political and natural geographic boundaries, and the like—provide the parameters. 194.  In other areas, the Supreme Court has tended to guard jealously its prerogative of prescribing what the Constitution means, notwithstanding the resistance of other actors. At times—such as in confronting state executive resistance to the Brown v. Board of Education decision—the Court has acted for laudable purposes, even if its self-conception is not defensible in principle. See Cooper v. Aaron, 358 U.S. 1 (1958) (the Supreme Court’s interpretation of the Constitution is “the supreme law of the land”). In other contexts, the laudability of the Court’s purposes is less clear. This is so, for example, in the restrictive interpretation the Court recently has given to section 5 of the Fourteenth Amendment, which authorizes Congress to “enforce” due-process and equal-protection guarantees “by appropriate legislation.” See United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil remedy provision of the Violence against Women Act) and City of Boerne v. Flores, 521 U.S. 507 (1997) (invalidating the Religious Freedom Restoration Act as against state action). 195.  See Brest (1975); Levinson et al. (5th edition, 2006) (first edition by Brest in 1975, and second by Brest and Levinson in 1983). 196.  For comparative analysis, see Tushnet (2008). In that work, Tushnet extends the U.S.–focused analysis of Tushnet (1999). 197.  Tushnet (2008), 33. 198.  Ibid., 23. 199.  See ibid., 25–31, 52. 200.  Tushnet (2009), 504. 201.  See Boumediene v. Bush, 533 U.S. 723 (2008). In fairness to Specter: After the Military Commissions Act passed, he cosponsored legislation to amend the offending provision.



Notes to Chapters 3 and 4

202.  As Tushnet observes, one must beware of taking judicial interpretations to set the standard for interpretive correctness. Whether judicial interpretive capacity is greater is precisely the question at issue. See Tushnet (2009), 500. 203.  Kramer (2004). 204.  Ibid., 81. 205.  See Whittington (2007). 206.  See Post and Siegel (2009, 2004). 207.  Zurn (2007), 30. For his full discussion, see ibid., 253–342. 208.  Habermas (1996), 263. 209.  Ibid., 123. 210.  See ibid., 154 (“It must be possible to interpret even ordinary legislation as serving to realize and specify the system of rights elaborated in the constitution”). 211.  Ibid., 402–403. 212.  One version of such an argument is offered by Günter Frankenberg. See Frankenberg (1996). Frankenberg objects to Habermas’s treatment of social rights as justified only so far as they are necessary for private or public autonomy. He proposes that social rights be justified independently, based on notions of social solidarity and empowerment. He is clear, however, that social rights are “a project that has to stand the test of public controversy” (ibid., 1385). 213.  In American constitutional law, for example, Mark Tushnet has connected general reflections on weak-form judicial review with comparative analysis of constitutional protection for social and economic rights. See Tushnet (2008). In philosophy, one is beginning to see, for example, attempts to connect relatively abstract rights theory with an understanding of how newer forms of constitutional rights actually are being protected through judicial review and other institutions. See, for example, Bilchitz (2007). 214.  See Schlink (1998), 377.

4.  system, lifeworld, and habermas’s “communication theory of society” Portions of this chapter were adapted from “System and Lifeworld in Habermas’s Theory of Law,” Cardozo Law Review 23: 473–615 (2002). 1.  Habermas (1998h), 444. 2.  See Habermas (1996), 341. 3.  Ibid., 2–22, 23. 4.  See ibid., 26, 55, 353. 5.  See ibid., 324. 6.  Ibid., 80; see also ibid., 354. Habermas allows that strategic action, not just communicative action, is possible “in the lifeworld” (ibid., 524 n18). But while the lifeworld provides a “background” for strategic action, it is “neutralized in its action-coordinating force” (ibid). By this cryptic phrase Habermas means that to strategic actors, norms are just “social facts,” not normatively obligatory. 7.  Habermas’s continued use of the “components” idea is in tension with his claim that “the communicative concept of the lifeworld breaks with the idea of a

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Notes to Chapter 4 whole composed of parts” (ibid., 80). The discussion following this quotation, however, suggests that he means that the lifeworld’s “components” are not separate but interrelated, see ibid., or, as he puts it elsewhere, “intertwined” (ibid., 55). The idea of culture, society, and personality as “components” is in tension, also, with Habermas’s statement that “the lifeworld forms, as a whole, a network composed of communicative actions” (ibid., 354). 8.  See ibid., 25–26. 9.  Ibid., 39. As before, the term Habermas uses to include both system and social integration is societal integration—gesellschaftlich rather than sozial. 10.  See ibid., 55–56, 354. 11.  Ibid., 40. 12.  Ibid., 354. 13.  Ibid.; see also ibid., 40. 14.  Ibid., 56. 15.  Ibid., 81; see also ibid., 56 (describing law as a “transformer”). 16.  The account of this “institutionalization” is thin in Between Facts and Norms. He refers to the “legal institutionalization of markets” (ibid., 75) but without further analysis. 17.  Ibid., 80. Habermas adds that “legal symbolism,” as a body of knowledge, is “represented” in the cultural component, and that “competences acquired via legal socialization” are “represented” in the personality component (ibid., 81). 18.  See ibid., 38–39, 386. 19.  See ibid., 55–56, 81, 302, 354. 20.  Ibid., 56. 21.  The model is set out in Habermas (1996), 354–359. 22.  See ibid., 353–354. 23.  See ibid., 354 (citing Peters (1993)). 24.  Peters (1994), 125. For the full set of criticisms, see ibid., 120–126. 25.  Andrew Edgar agrees. See Edgar (2005), 249. 26.  Habermas (1996), 321; see also ibid., 326, 327–328. 27.  The account of “colonization” focuses entirely on the relation between administrative system and lifeworld. William Forbath has pointed out the deficiencies in Habermas’s analysis of the economic system, both in Theory of Communicative Action and in Between Facts and Norms. See Forbath (1998a), 1001–1007; see also Forbath (1998b), 279–286. 28.  Likely Peters borrowed this center/periphery schema from the German systems theorist, Niklas Luhmann. For an account of how Luhmann uses the center/ periphery schema to analyze the legal system, see Baxter (1998), 2014–2024. 29.  Habermas (1996), 354–355. 30.  See Habermas (1987b), 367–373. 31.  For example, in one passage Habermas defines “the legal system in the narrow sense” as including “all interactions that are not only oriented to law, but are also geared to produce new law and reproduce law as law” (Habermas (1996), 195 [emphasis omitted]). He goes on to explain that courts, legislatures, “Government leaders,” and administrative agencies, as well as “parties, political parties, [and] electorates,” are part of the process that produces and reproduces law (ibid.,



Notes to Chapter 4

195–196). That list corresponds to the list of players that Habermas’s model puts in the political system’s center. 32.  The term autopoiesis means “self-making,” “self-creation,” or “selfproduction.” The central idea is that modern societies are differentiated into different systems of communication—for example, science, art, politics, law, economy—and these systems are “self-referential” and “autonomous.” By “autonomous,” however, Luhmann does not mean “independent of ‘external’ influences,” and by “self-referential” he does not mean that systems do not refer to other systems. His claim, however, is that the conditions for their external reference are determined internally, through standards, criteria, and procedures produced in the referring system’s own communication. The terms autonomous and self-referential have invited much criticism—and in my view, much confusion. One way of understanding what Luhmann means is to think of “autonomy” as a methodological rather than a substantive principle: To understand the operation of a differentiated system of communication, begin “internally,” with the system’s own practices, procedures, and standards. 33.  See Luhmann (1988). 34.  See Habermas (1996), 143. 35.  See ibid., 55, 143. This conception would fit Habermas’s idea that the system’s medium is “power,” and Habermas conceives power as a medium in terms of command. For his part, Luhmann equivocates, positing two different codes for the political system. See Baxter (1998), 2040, 2067–2068 (criticizing Luhmann’s equivocation between “government/opposition” and “governing/governed” as the code). 36.  One might think that Habermas’s discussion of how law and politics mutually establish one another’s codes (see Habermas (1996), 143–144), together with his more general emphasis on the “internal connection” between law and political power (see ibid., 133–151), would establish that law and politics are not separate systems. But Habermas’s discussion tracks Luhmann’s analysis of the functions that law and politics perform for one another, and Luhmann concludes that law and politics are separate but “structurally coupled” systems. See Baxter (1998), 2036– 2045. Further, to describe law and politics as “internally linked” is simply to say that they are conceptually related, or that they mutually presuppose another. The term “link” implies a distinctness even as it implies relation. Compare Habermas (1996), 79 (“I would like to distinguish law and morality from the start”), with ibid., 118 (stating that law and morality are “internally coupled”). 37.  In a passage separate from the “circulation of power” model, Habermas writes: Because the specific features of a legal system first appear in state-sanctioned law, there is a certain plausibility to Weber’s theoretical strategy of conceiving law as part of the political system. Less plausible is Luhmann’s further step of taking modern law out of politics again and giving it independent status as its own subsystem alongside the administration, economy, family, and the like. (Ibid., 74) 38.  See ibid., 168–193, 238–286. 39.  Ibid., 355.

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Notes to Chapter 4 40.  Ibid. 41.  Habermas says that these organizations “fulfill certain coordination functions in more or less opaque social sectors” (ibid.). “Opacity” sometimes is Habermas-code for “functional systems.” See ibid., 321. Further, unions and trade associations both represent economic interests and (could be said to) “fulfill coordination functions” in the economic sphere. 42.  Habermas refers to “clientele bargaining” (ibid., 355). 43.  Ibid. “Charitable organizations” thus appear both in the inner and outer periphery. Presumably this is not mere inadvertence on Habermas’s part; he must have a distinction in mind between different kinds of charities—one whose primary function is provision of welfare services, and the other whose primary function is advocacy. Or he may be recognizing that many charities perform both functions. 44.  See ibid., 355–356. 45.  Ibid., 359–362. 46.  Ibid., 136; see also ibid., 299, 301. 47.  Ibid., 171; see also ibid., 136. 48.  Or one might think simply that they, or some of them, are ill chosen and symptomatic of weaknesses in Habermas’s theory. William Forbath criticizes Habermas’s “electronics metaphors”—not just the “sensors” of the political public sphere but also the “transformer” metaphor of law. Forbath reads these metaphors to be “anxious”—connected with a defensive politics aimed at preventing colonization of the lifeworld. See Forbath (1998a), 999; see also Forbath (1998b), 276–277. I agree with Forbath that Theory of Communicative Action has that defensive quality, and I agree also that the system/lifeworld distinction both reflects and confirms Habermas’s defensiveness. My view, however, is that Habermas’s revised model moves away from the rigidity of the system/lifeworld conception, even if elsewhere in Between Facts and Norms Habermas recites his earlier formulations of “system” and “lifeworld.” 49.  Habermas (1996), 327. For other uses of the “sluice” metaphor, see ibid., 170, 300, 354, 356, 358. 50.  See, for example, ibid., 135–136. 51.  Ibid., 362. 52.  Ibid. (emphasis added). 53.  In prior work, Habermas used the term civil society to mean “a sphere of legally domesticated, incessant competition between strategically acting private persons.” Habermas (1987b), 178. In that sense, civil society referred essentially to the sphere of economic relations. Habermas now disavows that usage. See Habermas (1996), 366. 54.  See ibid., 354. 55.  See Habermas (1987b), 320 nn8,39. For a table representing the system/ lifeworld relation as conceived in Theory of Communicative Action, see section 1.4. 56.  Habermas (1996), 175; see also ibid., 358, 366–367. 57.  See ibid., 354, 365. 58.  Ibid., 366. 59.  See, for example, ibid., 352.



Notes to Chapter 4

60.  Ibid., 367. Parent–child relations presumably do not count as fully egalitarian. 61.  See ibid., 299, 301, 366. 62.  See ibid., 302, 335, 352, 366–367, 382. 63.  See, for example, ibid., 367. 64.  Ibid., 354. 65.  Ibid., 367. 66.  Ibid., 372. 67.  Ibid., 317; see also ibid., 131, 302, 437. 68.  Ibid., 371. 69.  See ibid., 368–369. 70.  Ibid., 175. 71.  Habermas distinguishes between facilitative and restrictive effects of social power. To participate at all, one must be in a position to assert one’s will and interests. But a grossly unequal distribution of social power threatens to restrict the communicative freedom of the comparatively disempowered. See ibid., 175. 72.  See ibid. 73.  See, for example, ibid., 307. 74.  Ibid., 308. 75.  See ibid., 376–378. 76.  See ibid., 378. 77.  Ibid., 356. Habermas writes “parliamentary complex or the courts,” but at the moment my interest is only in the legislative process. 78.  Ibid., 357. 79.  Ibid., 373 (emphasis omitted). Joshua Cohen perceptively criticizes Habermas’s tendency here to privilege “outside” ideas and to disparage ideas formulated within formal political institutions: The requirement of outside initiative strikes me as ill-conceived: Lots of political movements are initially provoked by developments internal to conventional institutions and actors—for example, by competition between and among elites who mobilize popular support with the expectation that that mobilization can be controlled—even though the subsequent evolution of those movements proceeds independently; when it comes to popular movements, genesis is not identity. (Cohen, 1999, 409) 80.  See Habermas (1996), 367, 443. 81.  See ibid., 354–355. 82.  See ibid., 367. 83.  See ibid., 381. 84.  See ibid., 354. 85.  I leave aside here the question whether the public-spirited “suppliers” of the “outer periphery” are among the voluntary associations Habermas takes to constitute civil society. The answer seems to be yes, unless Habermas is distinguishing between relatively informal associations (civil society) and the more formally organized organizations he calls “suppliers.” 86.  Habermas (1996), 355–356.

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Notes to Chapter 4 87.  See ibid., 352, 356, 357, 358, 442. 88.  See, for example, ibid., 298. 89.  Ibid., 330; see also ibid., 381, 382. 90.  One passage in Between Facts and Norms seems to confirm this interpretation. Describing the way in which impulses from the periphery may affect official decision making, Habermas writes: “An activated periphery must then introduce [latent problems] via parliamentary (or judicial) sluices into the political system in a way that disrupts the latter’s routines” (ibid., 358). Here the periphery seems to be conceived as lying outside the political system. 91.  See ibid., 360. 92.  Ibid., 366–367. 93.  Ibid., 110. 94.  Ibid., 461. 95.  Ibid., 280. 96.  Ibid., 461. 97.  Ibid., 362, 363. 98.  See, for example, ibid., 371. 99.  Habermas is aware that his use of the term recalls his rejection of Parsons’s proposed “influence” medium. See ibid., 363, 556 n50. 100.  See ibid., 171, 179. 101.  Ibid., 354. 102.  See ibid., 235–237. 103.  See ibid., 192. 104.  I take this phrase from William Forbath. See Forbath (1998a), 999; see also Forbath (1998b), 276–277. 105.  See Habermas (1996), 354 (“The language of law brings ordinary communication from the public and private spheres and puts it into a form in which these messages can also be received by the special codes of autopoietic systems—and vice versa.”). But cf. ibid., 352 (calling it “impossible to conceive politics and law as autopoietically closed systems”). 106.  In his selective incorporation of Luhmann’s autopoetic theory, however, Neil MacCormick places the idea of a binary code front and center. See MacCormick (2007), 99, 177, 184–185, 289. Still, MacCormick realizes that even if one takes the Recht/Unrecht code to be fundamental, one would have to consider, at least in “developed systems,” the further “bifurcat[ion]” between civil and criminal wrongs” and, “in the context of two- or more tier institutional order, . . . the valid/invalid opposition” to account for powers as well as rights and wrongs.” As indicated in the following discussion, I accept the idea that the communications proper to a particular system are distinguished by a particular “theme” or “circulating symbol,” but I find the emphasis on a code’s binary quality too inflexible. 107.  See ibid., 136–137. 108.  Habermas (1996), 80. 109.  Alexander (1983), 84. 110.  Habermas (1996), 80. 111.  Between Facts and Norms does not analyze the economic system.



Notes to Chapter 4

112.  Bernhard Peters, from whom Habermas borrowed the “circulation of power” model, maintains that with Between Facts and Norms Habermas moves away from a polar distinction between system and lifeworld. See Peters (1994). 113.  Cf. ibid., 127. 114.  Habermas (1996), 354–355. 115.  Ibid., 354. See Habermas, Faktiztät und Geltung (1992) (German edition of Between Facts and Norms), 430 for the German terms. Translator William Rehg explains that Verwaltung refers to “the aspect or branch of the state as a bureaucratically organized implementing power,” while Regierung “refer[s] to the leadership or party in office.” 116.  Bowling leagues, for example, are civil-social organizations that do not ordinarily contribute to discussion in the political public sphere. 117.  See Habermas (1996), 299, 308. 118.  See ibid., 48-49. 119.  This example comes from Gordon (1985). 120.  Luhmann (1997), 286. 121.  In this respect Luhmann’s thinking coincides with that of American legal realists, most memorably Friedrich Kessler, who saw the institution of contract as delegated law-making power. See Kessler (1943), 629–630. But with the growing concentration of economic power, Kessler argued, the effect was a shift from a democratizing institution to an authoritarian institution (ibid., 640). Although Luhmann does not use the idea of contract as legal decision for such critical purposes, the possibility is there for theorists, such as legal pluralists, who follow him in seeing contract as decision. 122.  See, for example, Habermas (1996), 196–197. 123.  Teubner (1992), 1459. Teubner is an autopoietic theorist, and, for reasons stated in text, Luhmann would agree with this statement. 124.  Habermas (1996), 367. 125.  See Baxter (1998), 2067–2072. One problem with the idea of code as unityestablishing system mechanism is that Luhmann himself posits two codes for the political system and equivocates on the nature of the economic system’s code. His argument would suggest that the political system really is two systems—because the code is what establishes the system’s unity—and his uncertainty about the economic system’s code makes it difficult to believe that there is a code for that system so basic as to organize all communication. See ibid., 2067–2068. A second problem is that the emphasis on communication as allocation of code values flattens out the nature of communication. See ibid., 2068–2069. 126.  See Luhmann (2004), 443. 127.  This “theme” actually corresponds to the two codes Luhmann posits for the political system (see ibid., 367, 378), although I state it as a theme rather than an opposition between binary “code values.” 128.  Certainly one could define the organizing theme or point differently. Or one could choose different conceptions for different purposes of analysis. My idea of this organizing theme or point is not so “fundamentalist” as Luhmann’s notion of the binary code, according to which all system communication is about the allocation of opposed code values.

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Notes to Chapter 4 129.  See Habermas (1996), 49, 51. 130.  Ibid., 51. 131.  Ibid., 335. 132.  Ibid., 56. 133.  See ibid., 54, 335, 343, 346. 134.  Ibid., 51. 135.  Ibid., 54–56. 136.  See Baxter (1998), 2004–2005. 137.  See ibid., 2005–2006. 138.  See ibid., 2009–2010. 139.  Luhmann’s term for these standards, criteria, and procedures is programming. See ibid., 2009–2013. I find the term programming unhelpful. See ibid., 2068–2069. 140.  Luhmann (1992), 1432. 141.  Luhmann (2004), 377–378. 142.  Neil MacCormick has appropriated this Luhmannian insight for his own theory of law as “institutional normative order.” See MacCormick (2007), 177–178. 143.  Luhmann (2004), 392. 144.  On the dominance of the “bundle of rights” formulation, see Penner (1996), 712–715. 145.  See Baxter (1998), 2047–2057. 146.  See Kansas v. Hendricks, 521 U.S. 346, 359 (1997). 147.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–597. 148.  In prior work I have suggested a number of other possible “structural couplings.” Many link the legal and economic systems. For example: the concept of negligence (particularly as elaborated economically), the idea of the corporation, “competition” in antitrust law, and the general idea of “liability.” Intellectual property law establishes links between law and both art and science. Administrative law couples the legal and political systems. The couplings are much more dense than Luhmann’s short list of examples suggests. See Baxter (1998), 2075–2078. Further, Luhmann understates the coupling of systems through events rather than structures. As he acknowledges, a communication may be simultaneously (for example) legal and economic—as when a losing defendant pays a judgment, or when a lawyer presents an argument in court for a fee. See id at 2038, 2078–2079. Finally, Luhmann’s emphasis on structural coupling leads him to understate the importance of other kinds of “irritation” among systems, as when, for example, a legal event (for example, a decision in important business litigation) registers in both the economic and political systems. See ibid., 2079–2080. 149.  See Habermas (1987a). See also McCarthy (1992), 1625; Frankenberg (1989), 381. 150.  This essay is from 1992, but to this day Teubner finds illuminating the idea that social systems are discourses. See, for example, Teubner (2009), 12 (referring to the systems in law’s environment as “different social discourses,” for example, “educational, scientific, medical, political, and economic discourse”). 151.  Teubner (1992), 1447.



Notes to Chapters 4 and 5

152.  Teubner defends strongly the idea that systems have binary codes. See, for example, Teubner (1992), 1452. The binary code is for Teubner the basis for one of autopoietic theory’s “most important” contributions: “the foundation of law on paradoxes, antinomies, and tautologies” (ibid., 1444). For example, Luhmann has interpreted the idea of the constitution as a mutual solution, of sorts, to the foundational self-referential paradoxes of the political and legal systems. See Luhmann (2004), 410. 153.  See MacCormick (2007), 99, 177–179, 181, 183–186, 229–230, 289, 301–302. 154.  See ibid., 302; see also ibid., 177–178. 155.  Ibid., 303. 156.  The founders of autopoietic theory, Humberto Maturana and Francisco Varela, introduced autopoiesis as a biological concept. See their Autopoiesis and Cognition: The Realization of the Living (1980). 157.  Another prominent thinker who significantly incorporates autopoietic concepts—while, again, relativizing their place—is the social theorist Bob Jessop. See Jessop (2002). 158.  Habermas (1996), 381. 159.  Ibid., 367. 160.  See Baxter (1998), 2014–2016. 161.  See Luhmann (1992), 1433.

5.  after between facts and norms 1.  Rawls (2005), xvi. 2.  Ibid., 13. 3.  See, for example, ibid., 205, 224–225, 311. As specific examples of nonreligious comprehensive doctrines, Rawls mentions utilitarianism and the “reasonable liberalism[] of Kant.” See ibid., 13, 37, 135 n3, 169–171. 4.  Ibid., 12. 5.  Ibid., xxx, 10, 12, 144. 6.  See, for example, ibid., 12. 7.  Ibid., 144. 8.  For Rawls’s account of an “overlapping consensus,” see especially ibid., 133–172. 9.  Ibid., 162. 10.  Rawls defines these as (1) principles specifying “the general structure of government and the political process,” including the various legislative, executive, and judicial powers, together with “the scope of majority rule”; (2) “equal basic rights and liberties of citizenship,” such as “the right to vote and to participate in politics, liberty of conscience, freedom of thought and of association, as well as the protections of the rule of law” (Ibid., 227). From these Rawls distinguishes other “political questions,” which may be “most” political questions—for example, “much tax legislation and many laws regulating property,” environmental protection laws, provisions for “museums and the arts.” See also ibid., 244–245, noting problems,

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Notes to Chapter 5 arguably fundamental, that he has not addressed: duties to future generations, international-law questions, health care, protection of animals and nature. 11.  Ibid., 214. In nonfundamental matters, the limits of public reason do not apply. See, for example, ibid., 245. 12.  Ibid., 215. 13.  Ibid., 218, 241, 254. 14.  See ibid., 247. 15.  For Rawls’s idea of a well-ordered society, see ibid., 35–40. The central point is that a well-ordered society is one in which all mutually accept the same principles of justice and in which citizens comply with society’s just basic institutions. 16.  Ibid., 248. 17.  Ibid. In his example, the dispute is over whether government aid to schools should be provided to religious schools as well as public schools. 18.  Ibid., 249. 19.  The essay is reprinted in ibid., 440–490. 20.  Ibid., 464. 21.  Ibid., 462. 22.  Rawls mentions three other forms of discourse in this connection. In the first, “declaration,” each citizen in political discussion “shows how, from our own doctrines, we can and do endorse a reasonable public political conception of justice” (ibid., 465). This form of discourse seems to me only to involve providing public reasons “in due course.” The second form of discourse Rawls calls “conjecture.” Here a speaker explains to her partner in discussion how a political conception of justice might be consistent with what she takes, or “conjectures,” to be her partner’s comprehensive doctrine (ibid., 465). The third form of discourse Rawls calls “witnessing.” The examples Rawls provides concern Quaker expression of pacifism and Catholic expression of opposition to abortion (ibid., 466 n57). 23.  See Audi (1997a), 9; Rawls (2005), 444–445. Audi also suggests a distinction between acting within one’s moral rights and virtuous citizenship (Audi (1997a), 33). In addition to addressing the situation of individual citizens, Audi considers also the obligations of religious associations. See ibid., 38–47 (section entitled “Separation of Church and State as Addressed to the Church”). I leave that discussion to the side here. 24.  Audi’s idea is not that there must be unanimity as to all substantive political matters but instead that citizens must debate together with reasons whose type is acceptable to all. He makes clear that, in his view, religious reasons are not of this type. See Audi (1997a), 16. Paul Weithman makes a similar point. See Weithman (2002), 166–167. 25.  See Audi (1997a), 16–17. Nicholas Wolterstorff questions the principle behind Rawls’s more religion-friendly conception. See Wolterstorff (1997b), 106. Paul Weithman suggests that the boundary between basic issues and other political issues is “hazy,” but he grants Rawls the distinction “for the sake of argument” (Weithman (2002), 187). For his part, Habermas questions the significance of the distinction: “Rawls confines the proviso to key issues affecting ‘constitutional essentials’; I consider this reservation unrealistic in the case of modern legal systems



Notes to Chapter 5

in which basic rights directly affect concrete legislation and adjudication, so that virtually any controversial legal issue can be heightened into an issue of principle” (Habermas (2008g), 123 n18). 26.  Unlike Rawls, Audi seems unconcerned to limit reliance on nonreligious comprehensive doctrines. 27.  Audi (1997a), 25. 28.  Ibid., 26. Audi suggests a test for when a reason is secular: “We should consider whether it would be taken to be secular by a reflective person who sincerely and comprehendingly claims to be non-religious and considers it carefully” (ibid., 48). 29.  Ibid., 53. See also ibid., 35. 30.  Rawls (2005), 465. 31.  Audi (1997a), 25. 32.  Audi (1997b), 123, 140. 33.  Ibid., 124. 34.  Audi (1997a), 54. 35.  See Weithman (2002), 132. 36.  Ibid., 167. 37.  Ibid., 206. 38.  See Chapter Two in ibid., entitled “Religion’s Role in Promoting Democracy.” 39.  Weithman uses the term church to refer also to mosques and synagogues but not to “secondary institutional bearers like religious orders and religious schools” (ibid., 37). 40.  Ibid., 14; see also ibid., 76. 41.  Ibid., 49. 42.  Ibid., 42–43, 49–50, 76. 43.  Ibid., 45–47, 138–139. 44.  Ibid., 139–140. 45.  See ibid., 85–90. 46.  Ibid., 50–52, 56–58. He notes particularly Catholic advocacy during the Reagan presidency. 47.  Ibid., 53. 48.  Ibid., 55–56, 81. 49.  Ibid., 58–59. 50.  Ibid., 56, 60–61. 51.  Ibid., 61; see also ibid., 52. 52.  Ibid., 5. 53.  Ibid., 81; see also ibid., 54, 81, 141. 54.  Ibid., 3. 55.  See ibid., 153–164. 56.  Wolterstorff (1997b), 67. 57.  Ibid., 111–112. 58.  Ibid., 116–118. 59.  Ibid., 74–75. 60.  Ibid., 77. 61.  Ibid., 79–80. 62.  Ibid., 106, 108.

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Notes to Chapter 5 63.  Ibid., 99. 64.  Ibid., 108; see also ibid., 106. 65.  Ibid., 109. 66.  Ibid., 110–112; Wolterstorff (1997a), 158. Wolterstorff acknowledges that for reasons of persuasion a religious person might be wise to offer secular reasons in political discussion. “But that,” he says, “is a requirement of strategy, not a requirement embodied in the ethic of the citizen in a liberal democracy” (Ibid., 164). 67.  Wolterstorff (1997b), 105. 68.  Habermas (2008g), 147; see also ibid., 119. 69.  Ibid., 123, 124. 70.  Ibid., 119. 71.  Ibid., 125 and n24. 72.  Ibid., 126; see also ibid., 127–128 (quoting Wolterstorff). 73.  Ibid., 140. In Between Facts and Norms, Habermas described postmetaphysical thinking as thinking that “avoids taking sides in the context of competing forms of life and worldviews” (Habermas (1996), 60). 74.  Habermas (2008g), 140. 75.  See, for example, Habermas (2008g), 111; Habermas (2009c), 59. 76.  Habermas (2009i), 74. 77.  See ibid., 71, 73. 78.  Ibid., 74. 79.  Habermas (2008g), 139. 80.  Ibid., 75–76. 81.  Habermas (2008g), 140; see also ibid., 142. 82.  Habermas (2008g), 114, 131. 83.  See ibid., 111, 143. 84.  See ibid., 124 (referring to the contribution of religious thinking to the American civil rights movement and to the socialist movement); ibid., 131. In addition to the four positions described in text, Habermas argues that religious disagreement “must be articulated in public discourses lest it foster mute hostility and breed violence” (Habermas (2008b), 240). 85.  Habermas (2009i), 77. 86.  Habermas (2008g), 131. 87.  Habermas (2009i), 64. Writing in 2005, Lincoln Dahlberg defends Habermas against the charge by “difference democrats” that Habermas’s idea of public-sphere deliberation does not accommodate “ ‘aesthetic-affective’ forms of discourse” (Dahlberg (2005), 129). The writings on religion I am considering here appeared in 2005 and later; they lend further support to Dahlberg’s argument. 88.  Rawls (2005), 462. 89.  See Habermas (2008h), 262–263. Although Habermas does not refer explicitly to Rawls here, such a reference is unmistakable: his comparison invokes “the secularized citizen with light metaphysical baggage who can accept a morally ‘freestanding’ or autonomous justification of democracy and human rights.” 90.  Wolterstorff (1997b), 105. 91.  Habermas (2008g), 136. 92.  Habermas (2008c), 283.



Notes to Chapter 5

93.  Ibid., 286. 94.  Here Habermas parts way with Wolterstorff and perhaps with Weithman. See Habermas (2008g), 132–134. For Wolterstorff’s views, see Wolterstorff (1997b), 116–118. Erroneously in my view, Wolterstorff thinks that reliance on personal religious views is an issue only for legislators. Judges and executive branch officials, he reasons, are bound to apply the community’s law, not make it. 95.  Habermas (2008g), 130. The distance Habermas has traveled from his thinking in his debate with Rawls is suggested by a reading of Bohman (2004). In that essay, James Bohman suggests that Habermas, even as he criticized Rawls’s position, then held “a standard liberal conception of the limits of toleration” (Ibid., 776 n8). 96.  Habermas (2008g), 137. 97.  Habermas (2008e), 113. 98.  Habermas (2008h), 261–262. See also Habermas (2009i), 75: “Religious citizens and communities must do more than merely conform to the constitutional order in a superficial way. They must appropriate the secular legitimation of constitutional principles under the premises of their own faith.” See further Habermas (2008c), 308; Habermas (2008g), 112. 99.  Habermas (2009i), 75. 100.  For Rawls’s notion of a modus vivendi, see, for example, Rawls (2001), 192: Here I use the phrase “modus vivendi” in the usual way, as may be illustrated by a treaty between two states whose national interests put them at odds. In negotiating a treaty, each state would be wise and prudent to make sure that the treaty is drawn up in such a way that it is public knowledge that it is not advantageous for either state to violate it. Both states, however, are ready to pursue their goals at the expense of the other, and should conditions change they may do so. 101.  See Habermas (2008g), 130; Habermas (2009i), 76. 102.  See Habermas (2008h), 263; Habermas (2008c), 310. 103.  Habermas (2008c), 310. 104.  Habermas (2008h), 264. 105.  See ibid., 263; see also Habermas (2008g), 138–139. 106.  Habermas (2008c), 310. 107.  Ibid.; see also Habermas (2008g), 131–132. 108.  See Lafont (2009), 146. 109.  Ibid., 131. 110.  Habermas (2008g), 137. 111.  Lafont (2009), 147 n24. 112.  To say that religious citizens should be free to question the authority of science, especially the authority of particular scientific claims, does not mean that a polity may not decide the issue against them—by, for example, deciding that evolution and not creationism should be taught in science classrooms. 113.  Lafont (2009), 141 (emphasis deleted); ibid., 128. 114.  Habermas (2008g), 139. 115.  Lafont (2009), 141.

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Notes to Chapter 5 116.  Ibid., 132. 117.  Ibid., 142. 118.  I assume that Lafont’s expression “reasons generally acceptable to democratic citizens” amounts to the same thing as Rawls’s “public reasons.” She describes “generally acceptable” reasons as ones “based on basic democratic principles of freedom and equality” (ibid., 142). 119.  Ibid. (emphasis added). 120.  Ibid., 138. Further, Lafont criticizes, as inconsistent with deliberative democracy, the idea that religious citizens have “a right to ‘mono-glot’ political advocacy” (ibid.). This would indicate that, while citizens may initially frame their arguments in purely religious terms, they must switch over to a different “language” when presented with objections based on public reasons. If this interpretation is right, then it addresses also a gap in Lafont’s analysis. Because her focus is on the obligation of citizens who debate in the informal public sphere, she does not (unlike Rawls and Habermas) clearly address the position of officials. At one point, it would seem that she allows public officials, too, the right to present purely religious arguments. She seems to criticize Habermas for excluding religious reasons “beyond the institutional threshold”—that is, at the stage of policy formation, she says, “when it matters most” (ibid., 135). While I remain uncertain of her position, I think the preceding is only a suggestion of inconsistency in Habermas: He worries about those ordinary citizens who cannot provide secular translations for their religious views in the informal public sphere, but he has no similar concern for the plight of public officials. 121.  Ibid., 128–129. 122.  Weithman asks, rhetorically: “Why think that adequately informed, rational adults cannot see the reason-giving force of religious reasons or would not take them as sufficient reasons for action?” (Weithman (2002), 167). 123.  Ibid., 206. 124.  Kymlicka (1995), 34–35. 125.  Ibid., 46–47, 128–129. 126.  Ibid., 27–29. 127.  Ibid., 31. 128.  Ibid., 133–134, 146–147. 129.  See ibid., 132. 130.  See Thornburg v. Gingles, 478 U.S. 30, 50–51 (1986). 131.  Section 2(b) of the Voting Rights Act of 1965, codified at 42 U.S.C. §1973(b). 132.  Miller v. Johnson, 515 U.S. 900 (1995). Such a use of race, the Court held, is unconstitutional unless necessary to accomplish a compelling governmental purpose—the so-called strict scrutiny standard. The original case in this line, cited by Kymlicka, was Shaw v. Reno, 509 U.S. 630 (1993). 133.  Kymlicka (1995), 108. 134.  Ibid., 7. 135.  Ibid., 40–41. 136.  Ibid., 41, 161, 170. 137.  On the Amish, see ibid., 41, 161, 170. On the Hutterites, see ibid., 120, 161, 177.



Notes to Chapter 5

138.  Ibid., 10–12. 139.  Ibid., 96–99. 140.  For example, Barry entitles the first two sections “Losing Our Way” and “Flight from Enlightenment.” 141.  Barry (2001), 12. 142.  Ibid., 233–234 (quoting Nathan Glazer, We Are All Multiculturalists Now). 143.  Ibid., 33, 35. 144.  Ibid., 44. 145.  Ibid., 47–48. 146.  Ibid., 49. 147.  Ibid. 148.  Ibid., 57. According to Barry, Muslim norms for women’s public dress “vary enormously” (ibid). 149.  Ibid., 59. 150.  Ibid., 62. Barry thinks the number of pragmatically required exemptions likely is small because, to support that approach, the rule must be important enough to justify generally following it but “not so important as to preclude allowing exceptions to it.” We must be dealing with, in other words, “cases in which uniformity is a value but not a great enough one to override the case for exemptions” (ibid.). I don’t see how Barry can be so confident that there aren’t many rules of this kind. 151.  Yoder v. Wisconsin, 406 U.S. 205, 209 (1971). 152.  On free exercise, see Yoder, 406 U.S. at 230–231; on the parental right to direct the upbringing of children, see ibid., 232. 153.  Ibid., 202–203. 154.  Ibid., 205, 211. 155.  Ibid., 242. 156.  Ibid., 215–216. 157.  The term politics of difference is Iris Young’s, and Barry reserves for her his most biting criticism. See Barry (2001), 69–70, 95 (comparing her views to those of the Dodo in Alice and Wonderland), 267–273. On Barry’s contrast between the politics of multiculturalism and the politics of redistribution, see ibid., 8. 158.  Ibid., 315. 159.  Ibid., 325–326. 160.  For a similar judgment, see Benhabib (2002), 112–114. 161.  Barry (2001), 7. 162.  Habermas (2009i), 204 n22 (citing Barry (2001)). 163.  See Chapter 2, section 2.2. 164.  Habermas (2009i), 71. 165.  See ibid., 204 n22. 166.  Habermas (1998j), 221. 167.  Habermas (2008c), 297. 168.  Habermas refers to “quotas for nonwhites” that might lead whites to “see themselves as disadvantaged.” While American defenders of affirmative action of course distinguish systems they support from “quotas,” I can’t be sure that Habermas would make that distinction as well.

301

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Notes to Chapter 5 169.  See Habermas (2008c), 297. 170.  See ibid., 297, 298, 302–303. In the same collection of essays, however, Habermas writes: “Modern law is constructed out of individual or ‘subjective’ rights that guarantee individual persons carefully circumscribed spaces of freedom. . . . ” (Habermas (2008a), 90). 171.  At one point Habermas presents cultural rights on the model of ordinary individual rights (“subjective rights,” in German terminology) (Habermas (2008h), 269). 172.  See Habermas (2008c), 295. 173.  See Habermas (2008h), 267. 174.  See Habermas (2008c), 293–294. 175.  See ibid., 294–295: “One misses the point of cultural rights by incorporating them into an extended model of the welfare state. Unlike social rights, cultural rights must be justified in terms of their role in facilitating the equal inclusion of all citizens.” 176.  Ibid., 293. 177.  Ibid. But compare Habermas’s contrary account—in an essay that appears in the same volume—cited above in note 171. 178.  Ibid., 296; see also ibid., 297. 179.  Ibid., 293. See also Habermas (2008h), 266 (describing the French head­ scarf case as a “secularist” violation of neutrality). 180.  Habermas (2008c), 293. 181.  Habermas (2008h), 266. This would seem to be a group or collective right. 182.  Ibid., 264. 183.  See ibid., 265, and the longer list in footnote 22 on the same page. 184.  Habermas (2008c), 297. 185.  Ibid., 298. 186.  Ibid. 187.  Kymlicka (1995), 7. 188.  Habermas (2008c), 299. 189.  Ibid., 298. 190.  Yoder, 408 U.S., 233. 191.  Habermas (2008c), 299. 192.  Ibid., 302. 193.  Ibid., 302–303. 194.  For the charge against Kymlicka, see Benhabib (2002), 67–68. 195.  Ibid., ix. 196.  Ibid., 2–3. 197.  Ibid., 8. 198.  Ibid., 106. Benhabib speaks of Habermas’s “dual-track” approach. See ibid., xii, 20–21, 106. 199.  See ibid., 36, 127; see also Habermas (2009i), 70 (insisting on “the difference-sensitive inclusion of foreign minority cultures” and “the inclusion of minorities in civil society”). 200.  Habermas (2008h), 270. 201.  Ibid.



Notes to Chapter 5

202.  Ibid., 265–266. 203.  Müller (2007), 26. See Habermas (1989). 204.  Müller (2007), 1–2. 205.  Ibid., 5, 40. 206.  Ibid., 32. 207.  Ibid., 42. Müller defines “supplements of particularity” as the “constellation of subsidiary concepts which have allowed the universalist morality at the center of constitutional patriotism to be embedded within a (necessarily) particular political culture” (ibid.). 208.  See ibid., 21–24, 33–34, 36–37. 209.  Ibid., 12. 210.  Ibid., 47. 211.  Ibid., 48; see also ibid., 67–68. 212.  Ibid., 67–68. 213.  Ibid., 55. In a similar formulation, the object of attachment is found in “citizens conceiving each other as free and equal” and thereby “find[ing] fair terms of political cooperation that they can justify to each other.” 214.  Ibid., 54. 215.  Michelman (2001), 254. 216.  Ibid. 217.  Müller (2007), 55–56. 218.  See Michelman (2001), 266. 219.  For Müller’s statement of the problem, see Müller (2007), 54: “It is perfectly reasonable for citizens to disagree even about some constitutional essentials (and not just their application, for instance). Such disagreement will be likely, not least since a general justification, on the one hand, and application, on the other, can almost always not be properly separated.” 220.  See Cronin (2006), 358–359 (attributing the term to Michelman and noting that the problem is “potentially devastating” to Habermas’s project). Michelman raises against Habermas a further difficulty: the foundational problem of a constitutional democracy. If ordinary outcomes are justified by procedure, what justifies the basic procedures themselves? See Michelman (1996), 308–309. We cannot say that the basic procedures are justified by the idea of democracy because those procedures are what define the notion of democracy. The problem here is essentially a special case of the problem (some would say paradox) at the foundation of any legal system. H. L. A. Hart’s “rule of recognition,” for example, is what grounds the validity of all other rules, primary or secondary. See Hart (1994), 100–108. But as the rule that defines the meaning of legal validity, Hart observes, the rule of recognition cannot itself be legally valid (or invalid). Hart speaks of its “acceptance” rather than its validity. See ibid., 108–110. Michelman does not, however, argue that Habermas’s idea of constitutional patriotism is designed to address this regress problem. For an argument that constitutional patriotism cannot serve that task, see Olson (2007). 221.  Habermas (2003), 192. 222.  Michelman (2001), 269. 223.  See ibid., 270–271.

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Notes to Chapter 5 224.  Müller (2007), 55–57. 225.  Habermas (2003b), 192. 226.  Ibid., 193. Cécile Laborde helpfully distinguishes between critical and neutralist constitutional patriotism. The former “concentrate[s] on the radical potential of constitutional patriotism as a subversive force intent on ‘de-centring’ and destabilizing homogeneous, hegemonic national identities.” Neutralist constitutional patriots, by contrast, focus on “the reconciliation of social inclusion and political legitimacy” (Laborde (2002), 595–596). 227.  Habermas (2003b), 192. 228.  See section 3.2.2 for Habermas’s earlier response to Michelman. 229.  Müller (2007), 59. 230.  Ibid., 59–60. 231.  Habermas (2008e), 106; see also Habermas (1995a), 264. 232.  See de Grieff (2002), 430–432. 233.  Accord McCormick (2007), 216. 234.  See Kreide (2009), 98–99: “Habermas has become interested in the key question about how the comprehensive proposal he developed in his 1992 treatise Between Facts and Norms can be applied to political relations above the level of the nation-state.” 235.  Each of the books Habermas has published since Between Facts and Norms is a collection of essays. 236.  Habermas (2001c), 66; Habermas (2009a), 187. 237.  Habermas infers that the process of economic globalization therefore is not beyond political control. See Habermas (2006c), 93. In my view, Habermas’s conclusion does not necessarily follow. That globalization resulted (in part) from political decisions does not mean that now, unleashed, it will be susceptible of effective political control. 238.  Habermas (2001c), 66. 239.  See ibid., 77; Habermas (2006d), 75, 77. 240.  Habermas (1998e), 174; see also Habermas (2001c), 78. 241.  Habermas (1998a), 157. 242.  Ibid., 157–158. 243.  Ibid., 66–68. 244.  Habermas (2009e), 91–93. 245.  See Habermas (2009a). 246.  Habermas (2001c), 70. Pablo de Grieff dubs this argument for transnational and/or supranational institutions “the argument from the weakness of the nation-state.” See de Grieff (2002), 427–429. 247.  Habermas (2006e), 42; Habermas (2009e), 88. 248.  Habermas (2006h), 21. 249.  Habermas (2006m), 6. 250.  Habermas (2008d), 326–327. 251.  Ibid., 330. 252.  Habermas (2009c), 112. 253.  Habermas (2008d), 333. Pablo de Grieff dubs this argument “the argument from the democratic deficit of nationalism.” To the considerations mentioned in



Notes to Chapter 5

text, he adds that “the twentieth century has manifested grotesquely the dangers of clinging to” the connection between nationalism and democracy (de Grieff (2002), 429–432). 254.  Habermas (2006i), 109. 255.  For a still helpful overview of normative political issues facing the EU, see Føllesdal (2005). 256.  See Habermas (2006e), 46; Habermas (2006j), 76; Habermas (2006d), 87; see generally Habermas (2001d). 257.  Habermas (2001d), 11. 258.  Habermas (2001c), 76. 259.  Habermas (2001d), 19. Perhaps a more serious obstacle than the cultural nonidentity difficulty concerns the different political and legal histories of core EU countries and the newer (mostly Eastern) additions. See Lupel (2005), 124. Habermas addresses this problem with his most recent criticisms of the “convoy” model of European integration. I discuss these criticisms later in this section. 260.  See Habermas (1998g); Habermas (1998a), 160; Habermas (2006d), 87. 261.  Habermas (1998a), 159. In the republican tradition, Habermas says, “ ‘people’ and ‘nation’ are interchangeable concepts for a citizenry that is co-original with the political community” (Habermas (1998g), 133). 262.  See Habermas (2006c), 100. 263.  Habermas (2008d), 334. 264.  Habermas (2001c), 84. 265.  Habermas (2006c), 101. 266.  Habermas (1998a), 161. 267.  English-language essays advocating a European constitution include Habermas (1998a) and Habermas (2006c). 268.  Both countries received “opt outs” from provisions that make the EU Charter of Fundamental Rights binding and effective against contrary domestic law. See Protocol on the Application of the Charter of Fundamental Rights to Poland and to the United Kingdom. 269.  There were court tests in Germany and the Czech Republic. 270.  For his proposal concerning the Constitution, see Habermas (2006c) (published in German in 2001). The process that would produce genuine EU democracy “would begin with a referendum on the constitution, which would touch off a large-scale debate throughout Europe.” 271.  Habermas (2009e), 103. 272.  Habermas (2009b), 58. 273.  Habermas (2009e), 103. The American experience might lend support to this supposition. The American Constitution became effective when nine of the thirteen colonies ratified, though binding only on those who ratified. See U.S. Constitution, Article VII. Of course eventually all thirteen colonies ratified, although the last two were induced by the proposal of a Bill of Rights. 274.  Ibid., 80–81. By “national exclusion clauses,” Habermas presumably means the various opt-outs included for member states. Some cover criminal law, and others allow the United Kingdom and Poland to opt out of provisions that would make the EU Charter of Fundamental Rights control contrary domestic law.

305

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Notes to Chapter 5 275.  See Article 9(c) of the Treaty of Lisbon; Habermas (2009e), 79. 276.  See Protocol on the Role of National Parliaments in the European Union. 277.  Habermas (2009e), 79. 278.  Habermas (2006j), 71; Habermas (2006c), 101; Habermas (1998b), 106; Habermas (1998a), 160. In Habermas’s discussion of what would be required to establish a “European public sphere,” he begins to respond to the criticisms Nancy Fraser leveled against his earlier accounts in Structural Transformation of the Public Sphere (originally published in 1962) and Between Facts and Norms (originally published in 1992): that Habermas’s idea of the public sphere is “Westphalian” in presupposing an exclusively nation-state framework. See Fraser (2007), 9–14. 279.  Habermas (2006i), 101; Habermas (1998a), 156. 280.  Habermas (2006l), 63; Habermas (2001c), 102–103. 281.  Habermas (2001c), 103. 282.  Habermas (2006m), 8; Habermas (2006d), 87; Habermas (2006c), 104; Habermas (2001c), 103. 283.  Habermas (2006d), 88. 284.  See Habermas (2001c), 99. 285.  Habermas (2006j), 81. 286.  Habermas (2006d), 87. 287.  Habermas (2006c), 102. 288.  Habermas (2009g), 182. 289.  Ibid., 183. 290.  Habermas (1999), 58. Matthias Kumm maintains that institutional features of the European Parliament contribute to the underdevelopment of a European party system. It is “not the central agenda setter in Europe,” he says; it is “an editor, not the author, of European laws” (Kumm (2008)), 129). 291.  The essay was originally published in 2006 (see Habermas (2006k)); a revised and expanded version is included in his collection Europe: The Faltering Project (see Habermas, (2009g)). That collection was published in German in November 2007. Habermas describes the essay as one “particularly close to my heart” (Habermas (2009d), vii). 292.  Habermas (2009g), 181. 293.  Without comment on the change of term, Habermas reads the present schema, with “deliberative” in the place of “procedural,” back into Between Facts and Norms. See ibid., 143. 294.  Ibid., 143. 295.  Habermas (2009f), 135. 296.  Habermas (2009g), 140. 297.  Ibid., 159. 298.  Ibid., 143, 156. 299.  Ibid., 146. 300.  Ibid., 159–160. 301.  Ibid., 165, 171. 302.  Ibid., 162. 303.  Ibid., 166.



Notes to Chapter 5

304.  See ibid., 166, Figure 9.2 (“Public Sphere: Inputs and Outputs”). Earlier in the essay, Habermas noted that the “representatives of the functional systems” occupy a strategic position as against the state. The state provides “subsidies and public infrastructure for various functional subsystems, such as industry and the labor market, health care, traffic, energy, research and development, education, etc.” And “representatives” of these subsystems are in a position to extract benefits by asserting “what they present as ‘functional imperatives.’ ” “Pressure groups,” he says, “can employ the threat of the ‘malfunction’ of a particular system, for instance redundancies, capital flight, or growth in inflation, a breakdown in traffic, energy shortages, a shortfall of skilled workers, a brain drain, and so on” (Ibid., 163). 305.  Ibid., 164. 306.  Ibid., 154. 307.  Ibid., 156. 308.  This typology does not mention the ideas of communicative or administrative power, on which he relied so heavily in Between Facts and Norms, but I do not read him as renouncing those concepts. 309.  Habermas (2009g), 167–168. 310.  Ibid., 168. 311.  Ibid., 168–169. 312.  Ibid., 169. Habermas plays with systems-theoretical concepts in referring to “a self-regulating media system” and “its social environments.” But he does not further develop the systems-theoretical frame. 313.  Ibid., 171–172. Habermas presents this requirement as a condition for “considered public opinions.” (Recall that he develops a normative and not a merely descriptive notion of public opinion. See section 4.2.3.) I think it makes sense to understand the requirement as a normative limit on media power. 314.  Ibid., 175. 315.  Ibid., 176–177. 316.  Ibid., 177. 317.  Ibid., 177. 318.  Ibid., 156–157. 319.  Ibid., 154. 320.  See Habermas (1998b) [1996], 121: “The publics produced by the internet remain closed off from one another like global villages.” 321.  Habermas (2009g), 157. 322.  Ibid., 157–158. 323.  For fuller treatments of Habermas or deliberative democracy and the Internet, see Dahlberg (2007); Froomkin (2003); Gimmler (2001). 324.  See Neblo (2008). 325.  See Habermas (2009g), 150–151. 326.  See www.tomorrowseurope.eu/ (last visited January 10, 2010). 327.  See Habermas (2009g), 150 (discussing the British Columbia’s Citizen’s Assembly, in which 160 randomly selected citizens deliberated to propose a new voting system, albeit one that was defeated in a popular referendum), ibid., 151–152 (discussing the study by Wolfgang van den Daele, whose moderated discussion groups operated in ways that would support deliberative democratic theory).

307

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Notes to Chapter 5 328.  See, most recently, Sunstein (2009). 329.  See, for example, Ackerman’s and Fishkin’s proposal for a “National Deliberation Day” (Ackerman and Fishkin (2005)). 330.  Habermas (2009g), 167 (emphasis in the original). 331.  Writing in 2004, before Habermas’s recent discussion of the issue, Joseph Staats argues that Habermas “fails to capture fully the way in which corporate power,” as “expressed through the mass media,” “can corrupt the democratic process” (Staats (2004), 585). My assessment of Habermas’s treatment of the issue is more positive than Staats’s, and I think the recent work is more resistant still to Staats’s criticism. 332.  In this sense, despite Habermas’s attempt to consider what a “European public sphere” would entail, his analysis of the public sphere remains in large part (to borrow Nancy Fraser’s term) “Westphalian.” See Fraser (2007), 9–15. 333.  Habermas (2006b), 141. 334.  Habermas (2006m), 7. 335.  Habermas (2006b), 140, 141, 176; Habermas (2006d), 87. 336.  Habermas (2006b), 141; see also Habermas (1999), 58: “A federal European state [if established] will . . . be of a different calibre than national federal states; it cannot simply copy their legitimation processes.” 337.  Habermas (2008d), 333. 338.  This is the conclusion of Kumm (2008), 119. 339.  James Bohman draws just this conclusion: While the idea of democracy implies self-determination, it “does not, however, require the more specific conception of self-determination that has guided much of democratic theory since the eighteenth century—self-legislation in a bounded political community—that is thoroughly imbricated with democracy’s current difficulties” (Bohman (2007), 3). 340.  See McCormick (2007), 267. Matthias Kumm argues that this conclusion is much too quick. See Kumm (2008), 135–136. 341.  Ibid., 268. 342.  Ibid., 271. 343.  See ibid., 23. 344.  See Cohen and Sabel (1997), 347. 345.  See McCormick (2007), 268. 346.  Habermas (1996), 191–192. 347.  See Joerges (1999), 311; Weiler (1999), 98; Weiler (1999b), 343; McCormick (2007), 285–286. 348.  See McCormick (2007), 251; Joerges and Neyer (1997), 285. 349.  See, for example, Joerges (1999), 311; Joerges and Neyer (1997), 285. 350.  See Joerges (2002), 150–151; Joerges (1999), 321; see also Weiler (1999b), 344. 351.  See McCormick (2007), 274 (“Many comitology proponents exhibit some serious myopia when it comes to asymmetries of power”). 352.  See, for example, Habermas (2009c), 113 (referring, at the “transnational level,” to “expert committees”). 353.  Repeatedly Habermas distinguishes between the constitutionalization of international law and the establishment of a world state. See, for example,



Notes to Chapter 5

Habermas (2008d), 316–317, 333–334; Habermas (2006b), 123, 132, 136; Habermas (2006g), 26; Habermas (2001a), 56; Habermas (2001c), 105. 354.  Habermas (1998c). The accuracy of Habermas’s reading of Kant is not my present concern; I’m interested only in Habermas’s diagnosis of the present and prescriptions for the future. For a critique of “the standard view of Kant’s position on international relations”—a view the author attributes to Habermas as well as Rawls—see Kleingeld (2004). 355.  Habermas (1998e), 165. 356.  Ibid., 168–169. 357.  Ibid., 169–171. 358.  Ibid., 174. 359.  Ibid., 176–177. 360.  Ibid., 180; see also Habermas (2006h), 20; Habermas (2006i), 107. 361.  Habermas (1998e), 179–180. 362.  Ibid. Habermas’s position seems to be that the United Nations should have “command” of military forces for peacekeeping operations. See ibid., 187–188. 363.  Ibid., 181. 364.  See especially Habermas (2008d) and Habermas (2006b). 365.  Habermas (1998e), 187. 366.  Ibid., 187. 367.  Writing of Kant’s discussion of a possible world republic, Habermas seems to share “Kant’s fear that the normalizing pressure exerted by the ‘soulless despotism’ of a global ‘state of nations’ would rob particular nations of their cultural specificity and identity” (Habermas, (2008d), 315; see also Habermas (2006b), 128). 368.  Habermas (2008d), 323. 369.  Thomas Giegerich notes that Habermas’s “use of the term ‘constitution’ as such necessarily evokes state analogies and is obviously intended to do so” (Giegerich (2009), 42). 370.  Habermas (2006b), 132. 371.  Habermas notes, with apparent approval, a report by the U.N. High Level Panel that would extend the peacekeeping and security function to: sources of danger beyond classical interstate conflicts to include not only civil war and internal conflicts, international terrorism, the possession of weapons of mass destruction, and transnational organized crime; with an eye to the developing countries, it expands this catalogue of sources of danger to cover the mass deprivation of the population through poverty and disease, social marginalization, and environmental degradation. (Habermas (2008d), 337). 372.  See, for example, Habermas (2006b), 136. See also Habermas (2008d), 140. 373.  Habermas (2006b), 134. Tinnevelt and Mertens maintain that this argument does not establish that “no form of world state is needed.” They argue that a “minimal world state” would be required by a “theory of global democracy.” In particular, they argue that the supranational organization would have to pursue functions other than peacekeeping and backup protection of basic human rights (Tinnevelt and Mertens (2009), 73, 77). These additional functions Habermas would assign to the transnational bargaining system.

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Notes to Chapter 5 374.  Habermas suggests that besides the United States, China, India, and Russia might potentially be sufficiently powerful “global players” to be outside such regimes. See Habermas (2009c), 114. 375.  Habermas (2008d), 333. 376.  A more comprehensive list of problems to be addressed at either the transnational or supranational level suggests governance “in the fields of energy, environment, finance, and trade policy; of labor relations; of organized crime; of arms trafficking; of combating epidemics, and so on” (Habermas (2009c), 109). 377.  Habermas (2006d), 83. 378.  Habermas (2008d), 325. 379.  Ibid., 327. Regina Kreide rightly cautions that “a cosmopolitan, multi­ layered system cannot reproduce the civic solidarity or welfare-state policies of the European Union” (Kreide (2009), 101). 380.  Habermas (2008d), 333. 381.  Ibid., 322–323; see also Habermas (2006b), 141. 382.  Habermas (2006b), 142. 383.  See section 2.4.3. 384.  Habermas (2008d), 347. 385.  Habermas (2006b), 141. 386.  Ibid., 143. 387.  Habermas (2009c), 119. 388.  Ibid., 120. 389.  Ibid., 122. 390.  Ibid., 123. 391.  Ibid., 111. 392.  Ibid., 125. 393.  Ibid., 126–128.

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Index

action orientations: vs. action consequences, 33–34; consensual understanding, 9, 10, 11, 13, 14, 30, 31, 33, 34, 40, 43, 47, 48, 49; regarding legal norms, 61; success, 10–11, 14, 17, 31, 33–34, 40, 41, 43, 92, 93, 151 adjudication, 63, 95, 103–4, 276n3; appellate review, 114; as application of legal norms, 107–16; certainty requirement, 107–10, 111–12, 113, 114, 276n12; in common-law jurisdictions, 7, 114, 116–19, 279nn53,54,66,68; consistency in, 107; defined, 102; discourses of application regarding, 7, 92, 102–4, 110–12, 113, 117, 119–20, 121–24, 127–28, 275n223, 277nn25,28, 280nn82,87; in German system, 114; and indeterminacy of application, 110–16, 278n48; judicial impartiality, 115; and legal hermeneutics, 108–9; and legal paradigms, 112–13; and legal positivism, 108–9; and legal realism, 108–9, 112; legitimacy requirement, 107–10, 111; and normative justifiability, 107–10; and open society of interpreters, 114, 117, 278n49, 279n50; procedural approach to, 112–16; rules vs. principles in, 110–12, 125, 277n25. See also constitutional adjudication Adorno, Theodor, 2, 4, 54 Alexander, Jeffrey, 174; on Parsons, 36–37 Alexy, Robert: on balancing of principles, 125–26, 128, 277n25, 281n93; on ba-

sic rights and popular sovereignty, 73, 269n73; on discourse of application, 111, 124, 278n32; on discourse of justification, 124, 276n5; on German constitutional norms, 282n122; on horizontal effect, 130–31; on rules vs. principles, 125–26, 277n25; A Theory of Constitutional Rights, 125 Amish, 211, 213–14 Amnesty International, 244 analytic philosophy, 3 apartheid, 199 Aranson, Johannes, 262n139 Arato, Andrew, 279n58; on public sphere, 278n49 art, 27, 29, 53, 57 Audi, Robert: on principle of secular motivation, 196, 198; on principle of secular rationale, 195–96, 198, 297n28; on religion, 193, 195–97, 198, 199–200, 201, 207, 208, 296nn23,24, 297n26 Austin, J. L., 3, 258n28 bargaining and compromise: vs. communicative and strategic action, 95–96, 274n189; in constitutional state, 69, 75, 89, 92–94, 96, 97, 99, 100, 104, 115, 168; and equal bargaining power, 93; exclusion of exploitation from, 92; legal bargaining/plea-bargaining, 115; relationship to discourse principle, 92–93, 94, 96

324

Index Barry, Brian: on bilingual education, 214; Culture and Equality, 211–15, 216, 301n140; on multiculturalism, 208, 211–15, 216, 219, 301nn148,150,157; politics of difference vs. politics of redistribution, 215, 301n157; on Yoder decision, 213–14 basic rights and popular sovereignty, 7, 63–65, 73–74, 82, 269n73 Benedict XVI, 8 Benhabib, Seyla, 221, 301nn160,198, 302n194 Berger, Johannes, 265n205 Berlusconi, Silvio, 238 biotechnology, 8 Bohman, James, 276n3, 299n95, 308n339 Brest, Paul, 143 British Columbia: Citizen’s Assembly, 307n327 Buckley, Walter, 262n140 Bush, George W., 8, 229 Canada, 143, 209, 225, 227 capitalism, 27, 237; crises in, 3, 54; globalization, 228–29, 230, 243, 246, 304n237; markets in, 4, 15, 34, 41, 47; Marx on, 3, 54; and system, 4, 9, 34, 47, 265n187 categories of basic rights. See system of rights/categories of basic rights Catholic Church, 197–98, 204, 219, 296n22, 297n46 circulation of power model, 154–64, 188, 192, 233, 235–36, 241, 250; vs. system/ life world model, 149, 152–53, 154, 155, 165–77, 179, 190–91, 293n112 citizenship rules, 71–72 civil society, 149, 174–75, 221, 244, 247, 302n199; and basic rights, 162; defined, 85, 101, 290n53; as global, 244, 250, 251; as network of voluntary associations, 85, 101, 102, 131, 159, 161, 175, 189, 233, 272n145, 291n85; relationship to center of political system, 166–67, 170, 179, 181, 182, 189, 250; relationship to legitimate law, 168–69; relationship to outer periphery of political system, 291n85; relationship to political public sphere, 102, 160–63, 164, 168–69, 179, 181, 188, 189, 233, 235, 250, 293n116

cognitive interests: emancipatory interest, 2; practical interest, 2; technical interest, 2 Cohen, Joshua, 268n59, 274n199; on discourse principle, 271n107; on outside initiative, 291n79 collective rights, 208–9, 215–17, 218–22, 301n168 comitology, 241–42, 308n351 common-law adjudication, 7, 116–19, 279nn53,54,66,68 communicative action, 3, 4, 5, 10–20, 28, 44, 156, 169, 176, 274n189; and bargaining, 93–94, 274n189; and formal pragmatics, 11–12, 256n12; vs. instrumental action, 10–11; and normatively authorized requests, 14–15; orientation toward consensual understanding in, 9, 10, 11, 13, 14, 30, 31, 33, 34, 40, 43, 47, 48, 49; performative attitude in, 17–18, 61; and personal identity, 217; purposive aspect of, 23, 31; and rational motivation, 85; redemption of claims, 39–40; relationship to lifeworld, 4, 21, 22, 24, 46, 150, 151, 170, 176, 260n84, 288n7; relationship to speech acts, 11, 13; vs. strategic action, 10–18, 42, 49–50, 51, 60, 61, 93, 259n45, 274n189, 287n6; and validity of speech acts, 12–13, 18–19. See also communicative rationality; discourse communicative rationality, 3, 18–20, 26–30, 40, 44, 168, 236 communism, 199 constitutional adjudication, 7, 63, 116, 119–47, 280nn76,79; civic republican model of, 120, 129, 131–35; constitution as ongoing project, 142, 144; discourses of justification vs. discourses of application in, 103–4, 107, 117, 119–20, 121–24, 127–28, 275n223, 277nn25,28, 280nn82,87, 281n112; external vs. internal justification in, 107, 276n5; judicial review of legislation, 120, 133–35, 137–42, 143–46, 287n213; liberal model of, 120, 129–30, 137; procedural model of, 120, 129–47, 147, 224–25; value jurisprudence in, 119, 120–28, 147, 280n85 constitutionalization of international law, 192, 228, 242–49, 308n353

constitutional norms: due process, 72, 121, 224, 286n194; equal protection, 72, 121, 224, 286n194 constitutional patriotism, 5, 222–27, 241, 246, 251, 303n220, 304n226 constitutional state (Rechtsstaat), 6, 7, 77, 82–105; and administrative power, 83, 85–89, 95–105, 116–17, 128, 129, 133, 136, 149, 152, 153, 154, 155, 159–60, 169, 171, 182, 274n199, 307n308; and communicative power, 83, 85–89, 95–102, 103, 104, 105, 116–17, 128, 129, 133, 149, 152, 155, 159–60, 164, 169, 171, 176, 182, 274n199, 307n308; development of, 55–56; executive power, 83, 104, 118; legislative process, 83, 96–102, 104–5, 116–17, 146, 164, 279n56, 287n210, 291n77; reconstructive analysis of, 93, 97, 99, 103, 145–47, 190; relationship to categories of rights, 63, 73; relationship to collective identity, 230–31; relationship to lifeworld, 23, 57–58; role of bargaining and compromise in, 69, 75, 89, 92–94, 96, 97, 99, 100, 104, 115, 168; separation of powers in, 7, 88, 95, 102, 103–5, 107, 118–19, 120, 121, 128, 129–30, 144, 157, 241–42; system of state offices, 23, 42, 57–58, 83, 152, 235–36 courts. See adjudication; German constitutional court; legal institutions; United States Supreme Court Cover, Robert: on jurisgenesis, 272n141 criminal law, principles of, 23 critical legal studies, 111, 277n29 criticizability: relationship to communicative rationality, 18–19; of validity claims, 12–13, 15, 16–17, 18–19, 40, 43, 257n19 Cronin, Ciarin, 303n220 cultural rights, 215–16, 217–22, 302nn171,175 Daele, Wolfgang van den, 307n327 Dahlberg, Lincoln, 298n87 decision theory, 16, 18 De Grieff, Pablo, 227, 304nn246,253 democracy: beyond the nation-state, 8, 227–42; civic republican model of, 120, 129, 131–35, 235; deliberative model of, 131, 133, 136, 138, 144–45, 159–60, 170–71, 207–8, 235, 236–41, 272n148, 300n120, 306n293, 307n327;

Index democracy principle, 74–75, 89, 97–100, 268n46; democratic procedures, 20, 95–100, 224–25, 303n220; and juridification, 55; and legitimation of power, 42; liberal model of, 120, 129–30, 137; and modern complexity, 58; preconditions for, 162–64, 233; principle of, 74–75, 89, 95–100, 95–98, 103, 168, 268n46; procedural model of, 120, 129–47, 147, 224–25, 235, 303n220, 306n293; reflexivity of democratic process, 29–30; relationship to legitimate law, 10, 16, 17, 64–66, 82–83, 85, 86–87, 88, 95–102, 103, 104–5, 118–19, 128, 131, 134, 144, 152–53, 154, 168–69, 182, 225–26, 250–51; and religion, 197–98, 199, 201–2, 204, 206–8; role of legislatures in, 83, 96–102, 104–5, 116–17, 125, 137, 142, 143–44, 146, 155, 164, 166, 170–71, 176, 178, 210, 274n199, 279n56, 287n210, 288n31, 291n77. See also political public sphere; political system; popular sovereignty Derrida, Jacques, 5 discourse: as argumentation, 19, 259n50; ideal conditions for, 19–20, 259n52; institutionalization of, 20, 30; as rational, 30, 68–69, 76, 89, 92, 94, 156; systems as discourses/communicative networks, 187–88; typology of discourses, 89–92 discourse principle, 7, 171, 268n43, 268n45, 271nn107,108; and categories of basic rights, 68–69, 70–75, 79, 81; definition of action norms, 68; and democracy principle, 74–75, 89, 97–100, 268n46; and equality, 70–71, 79, 268n59, 269n60; relationship to bargaining and compromise, 92–93, 94, 96; universal assent requirement, 68, 70, 72, 74–75, 79, 90–92, 96, 97–100, 168, 236–37, 268n46, 269nn60,78, 273n178, 274n201 Durkheim, Emile, 4, 29 Dworkin, Ronald: on campaign contributions, 138; on common law, 279n53; on constructive interpretation, 7, 103, 104, 109–10, 113–14, 115, 116, 119, 124–25, 279nn53,66; on fit and justification, 109–10, 277n17; vs. Habermas, 7, 103, 104, 109–10, 113–14, 115, 119, 124–25, 279n66, 280n85; Hercules

325

326

Index Dworkin, Ronald (continued) device, 110, 113–14, 115; Justice as Robes, 277n17; Law’s Empire, 109, 110, 116; on rules vs. principles, 110–12, 277n25; on weight of rights, 281n92 Easton, David, 262nn140,141 Edgar, Andrew, 288n25 Elster, Jon: on arguing and bargaining, 274n189 Ely, John Hart: vs. Habermas, 135, 136; on representation reinforcement, 135, 136, 283nn151,165 enforcement of law and validity of legal norms, 62, 72, 83, 86, 95, 272n125 equality: in bargaining power, 93; and collective rights, 218, 220, 221; and discourse principle, 70–71, 79, 268n59, 269n60; equal protection, 72, 121, 224, 286n194; Kant on right to equal liberties, 65, 66, 71, 120; Kymlicka on, 210; Rawls on equal basic rights and liberties, 76, 77, 80–81, 138, 140, 270n97, 284n170, 295n10 ethical discourses, 96, 97, 102; at collective level, 89–90; ethical-political discourse, 90, 95, 121, 127–28; at individual level, 89–90 European Union (EU), 8, 192, 227–42, 246, 308n336, 310n379; and comitology, 241–42, 308n351; Council of the EU, 245; European Commission, 241; European identity vs. national identity, 230, 233, 305n259; European Parliament, 232–33, 241, 306n290; political public sphere absent in, 233–35, 249, 306n278, 308n332; Treaty Establishing a Constitution for Europe, 231, 232, 305n270; Treaty of Lisbon, 228, 231–33, 305nn268,269,274 facticity vs. validity, 6, 17, 62–64, 73–74, 82, 107–10, 116, 267nn10,14, 269n74 family, the, 47, 52, 56, 291n60 Fararo, Thomas J., 263n156 fascism, 199 Fishkin, James: deliberative polling experiments of, 239–40 Forbath, William, 277n13, 283n156, 288n27, 290n48, 292n104 formal organizations, 48–49, 50–51, 170 Foucault, Michel, 5

France: affaire du foulard in, 213, 218, 222, 302n179; rejection of European constitution by, 231 Frank, Jerome, 276n12 Frankenberg, Günter: on social rights, 287n212 Frankfurter allgemeine Zeitung, Die, 5 Frankfurt School, 2, 4, 54 Fraser, Nancy, 306n278, 308n332 functionalist systems theories, 35 functional necessity, 25 game theory, 16, 18, 258n38 German constitutional court, 130, 146, 277n25, 280n73, 282n122; Lüth decision, 125–26; and value jurisprudence, 119–20, 121, 125–28 Germany: Basic Law, 125, 126; historians’ debate in, 222; mass-communication law in, 136; Nazi regime, 1, 5, 222, 223; nineteenth-century civil-law theory in, 63, 64, 65, 66, 70, 102; political campaigns in, 138–39; proportional representation in, 284n168; vs. United States, 118, 130, 147 Giegerich, Thomas, 309n369 globalization, 228–29, 230, 243, 246, 304n237 global public sphere, 243–44, 249, 250, 251 Gordon, Robert W., 293n119 Greenpeace, 244 Gulf War, first, 243 Günther, Klaus: on discourses of justification vs. discourses of application, 91–92, 110–11, 124, 277nn25,28,30, 278n39; vs. Habermas, 91–92, 110–11, 112, 124; on legal paradigms, 278n39 Habermas, Jürgen: A Berlin Republic, 8; Between Facts and Norms, 6–8, 9, 10, 62, 63, 78, 82, 84, 88, 112, 116, 124, 128, 129, 136, 146, 148–49, 150–53, 154–55, 161, 163, 165, 166, 167, 168–69, 170–71, 172, 174–76, 177, 180, 191, 192, 215–16, 226, 227, 233, 234, 235, 241, 255n16, 258n44, 267n10, 268n51, 279nn54,56, 281n112, 283nn156,162, 288n16, 290n48, 292nn90,111, 293n112, 298n73, 304n234, 306nn278,293, 307n308; Between Naturalism and Religion, 8, 200–201, 271n108; early life, 1–2; Econ-

omy and Society, 38–39; at Frankfurt, 2, 5; The Inclusion of the Other, 8; at Johann Wolfgang Goether-University, 2; “Kant’s Idea of Perpetual Peace”, 242–45; Knowledge and Human Interests, 2; Legitimation Crisis, 2–3, 4, 5, 260n95; at Max-Planck Institute, 5; Die Moderne— ein unvollendetes Projekt, 255n14; Die nachholende Revolution, 8; Philosophical Discourse of Modernity, 5; polar distinctions employed by, 10, 34, 49–50, 51, 58, 293n112; “Political Communication in Media Society”, 234–41, 306n291, 307n304; political views, 2, 5, 8; The Structural Transformation of the Public Sphere, 2, 251, 255n8, 306n278; Tanner Lectures/“Law and Morality”, 5; Theory of Communicative Action, 4–5, 6, 7, 9, 10, 14, 25, 50–51, 54, 57–58, 84, 85, 86, 87–88, 148, 151–53, 154–55, 161, 165, 167, 168, 169–70, 174–76, 177, 222, 257n28, 266nn228,229, 268n51, 290nn48,55 Hale, Robert, 264n165 Hart’s rule of recognition, 108, 303n220 Hasidic Jews, 211 hermeneutic idealism, fictions of: auton­ omy of actors, 32; independence of culture, 32; transparency of communi­ cation, 32 Hobbes, Thomas, 35 Holmes, O. W., Jr.: the bad man’s view of the law, 17 Horkheimer, Max, 2, 4, 54 human rights, 129, 225, 244–45. See also rights; system of rights/categories of basic rights Hunt, Alan, 266n222 Husserl, Edmund: Crisis of European Sciences, 259n63; on lifeworld, 20–21, 150, 176, 259nn58,63,66 identity, group/collective, 129, 132, 230–31, 233 identity, personal, 129, 172, 217 individual rights, 209, 216, 219–20, 302n170 influence: of mass media, 135–36, 160, 163, 164, 236, 237–40, 283n162, 307n313, 308n331; Parsons on, 36, 38, 43–44, 168, 263n159, 292n99; of public opinion, 160, 164, 167, 169, 170,

Index 188, 190, 233, 235, 292n90; in strategic action, 13–14 Institute for Social Research, 2 institutional translation proviso, 201, 203–4, 206 instrumental action, 18; orientation toward success in, 11–12 International Court of Justice, 244 International Criminal Court (ICC), 244 International Monetary Fund, 246 Internet, 140, 163, 238–39, 307n320 interpretive pluralism, radical, 225–26 Ireland and Treaty of Lisbon, 231 Islam, 204, 217, 222, 301n148; and head­ scarves, 213, 218, 222, 302n179 Israel, 218 Issacharoff, Samuel, 285n183 Jessop, Bob, 295n157 Joas, Hans, 256n8, 260n84, 262n139, 264nn183,202 Johnson, James, 258n38 juridification, 55–56 juries, 114 Kant, Immanuel: on cosmopolitan law, 242–43; vs. Habermas, 65–66, 71, 80, 242–45, 309n367; on legal vs. moral norms, 268n49; on perpetual peace, 8, 192, 228, 242–45, 309nn354,367; on reason, 243; on right to equal liberties, 65, 66, 71, 120; social contract theory of, 64; on universalizability, 66 Karlan, Pamela S., 285n183 Kellner, Douglas, 265n205 Kelsen, Hans: the Grundnorm, 108 Kennedy, Duncan, 277n29 Kerry, John, 285n176 Kessler, Friedrich, 293n121 King, Martin Luther, Jr., 195, 198 Kleingeld, Pauline, 309n354 Kohlberg, Lawrence, 265n189 Kramer, Larry: on popular constitutionalism, 144 Kreide, Regina, 304n234, 310n379 Kumm, Matthias, 306n290, 308n340 Kymlicka, Will: on collective rights, 208–9; on equality, 210; on groupdifferentiated rights, 208–11, 215, 216; on internal restrictions, 210–11, 219; Multicultural Citizenship, 208–11, 215; on multiculturalism, 208–12, 216, 218,

327

328

Index Kymlicka, Will: on multiculturalism (continued) 219, 221; on polyethnic rights, 209, 210, 211, 212, 216, 218, 221; on selfgovernment rights, 209, 211, 216, 218; on special representation rights, 209–10, 216; on voluntary immigrants vs. national minorities, 211, 215 Laborde, Cécile, 304n226 LaFont, Cristina, 205–7, 300nn118,120 language: consensus formation in, 44; vs. money, 39–40, 264n167 Larmore, Charles, 79, 271n109 law: family law, 56, 156; as hinge between system and lifeworld, 149, 152, 153, 183; and juridification, 55–56; jurisgenerative power of citizens, 85, 88, 100, 117, 129, 131, 134, 152–53, 154, 169, 250, 272n141, 282n138; legal community, 66–67, 76, 81, 89, 90, 94, 95, 146, 269n60, 273n170; legal discourse, 89, 94, 95, 113–16; legal personhood, 29, 69–70, 71, 79–80; legal sanctions, 60–61, 67, 83, 86, 107, 153, 244; as medium, 57, 149, 156, 268n51; private law, 42, 51, 56, 57, 64, 130–31, 146, 174; public law, 42, 51, 56, 57, 174; relationship to dissensus, 18; relationship to lifeworld, 23, 34, 56–58, 152, 153, 174; relationship to morality, 64, 66–67, 79; relationship to political power, 83–85, 184–85; relationship to system, 23, 34, 40, 51, 56–57, 69–70, 149, 152–53, 156, 157, 170, 174, 183, 268n51, 288n16; rule of, 80, 88; school law, 56; and social evolution, 46, 265n189; social-welfare law, 56; as transformer between system and lifeworld, 149, 152–53, 183, 290n48. See also adjudication; constitutional adjudication; legal institutions; legal norms; legal procedures; legitimate law legal form/legal medium, 83, 149, 269n64; and legal norms, 69–70, 268nn50,53,55; and legal personhood, 69–70, 79–80 legal hermeneutics, 108–9 legal institutions, 49, 50–51, 56, 149, 152; contracts, 23, 40, 64, 153, 174, 180, 293n121; courts, 72, 77, 83, 84, 88,

153, 155, 156–57, 176, 178, 180, 186, 274n199, 278n49, 279n50, 288n31; property, 23, 40, 64, 77, 80, 153, 174, 180, 185, 294n144. See also adjudication; German constitutional court; United States Supreme Court legal norms: application of, 7, 92, 102–4, 107–16, 110–12, 113, 117, 119–20, 121–24, 127–28, 275n223, 277nn25,28, 280nn82,87, 281n112; enforcement and validity of, 62, 72, 83, 86, 95, 145, 272n125; indeterminacy of application, 110–16, 278n48; justification of, 92, 102, 103, 107, 109–11, 113, 117, 119–20, 121–24, 127–28, 275n223, 276n5, 277nn17,25, 280n87; and legal medium/legal form, 69–70, 268nn50,53,55; vs. moral norms, 66–67, 89, 92, 94, 95–96, 99, 127–28, 268n49, 269n60, 281n110, 289n36; procedural rules as, 97–98; relationship to principle of democracy, 74–75, 95–98, 103, 168 legal paradigms: liberal/bourgeois formallaw paradigm, 112–13, 278n48; proceduralist paradigm, 112–13, 278n48; social-welfare paradigm, 112–13, 278n48 legal pluralism, 187–88, 293n121 legal positivism, 64, 108–9 legal procedures: and adjudication, 112–16, 278n48; and constitutional adjudication, 120, 129–47, 147, 224–25; and discourse principle, 113–16; and due process, 72; and equal treatment, 72; as legal norms, 97–98; and positivization of law, 20, 66 legal realism, 108–9, 112, 276nn8,12, 277n13, 293n121 legitimate law: and categories of basic rights, 63, 64–66, 67–68, 73, 73–74, 81–82, 120, 145; legal validity, 62–63, 64–68, 153, 181–82, 303n220; and popular sovereignty, 64–66, 67–68, 73–74; and procedural principles, 96, 225–26; relationship to compliance, 60–61; relationship to democracy, 10, 16, 17, 64–66, 82–83, 85, 86–87, 88, 95–102, 103, 104–5, 118–19, 128, 131, 134, 144, 152–53, 154, 168–69, 182, 225–26, 250–51; tension between legitimacy and enforcement, 62

legitimation crisis, 3 Lessig, Lawrence, 140 Levinson, Sanford, 143 Levitt, Justin, 285n183 liberalism, 260n96, 271n111; model of constitutional adjudication, 120, 129–30, 137; and multiculturalism, 210–11, 212; of Rawls, 80, 101–2, 199–200, 208, 274n203, 275n210 Lidz, Victor Meyer, 263n156 lifeworld: colonization of, 10, 55–57, 154, 156, 157, 168, 173, 177, 266n216, 288n27, 290n48; consensus between actors in, 21–22; context of relevance in, 21; crises of reproductive processes, 24–26; cultural reproduction, 24, 25–26, 29, 150, 151, 173, 175; culture component, 22, 24, 25–27, 28–29, 31, 32–33, 48–49, 50, 56, 57, 150, 151, 162, 170, 172–75, 176, 217, 260n75, 287n7, 288n17; as domain of action, 50; and fictions of hermeneutic idealism, 32; Husserl on, 20–21, 150, 176, 259nn58,63,66; material reproduction of, 23, 30–32, 45–46, 51; norms and values in, 4, 29–30, 33, 34; personality component, 22, 23, 24, 25, 26–27, 30, 31, 32–33, 48–49, 50, 52, 149, 150, 151, 162, 170, 172–75, 176, 217, 260n75, 287n7, 288n17; phenomenological conception of, 9, 20–21, 150, 172, 176, 259n58; rationalization of, 25, 26–30, 33, 45, 47, 56, 58, 60, 61, 66, 68, 150–51, 168, 173; reflexivity in symbolic reproduction, 29–30; relationship to communicative action, 4, 21, 22, 24, 46, 150, 151, 170, 176, 260n84, 288n7; relationship to law, 23, 34, 56–58, 152, 153, 174; relationship to the state, 23, 57–58; Schutz on, 20–22, 31, 150, 172, 176, 259nn66,67, 260n75; and social complexity, 32, 33, 58; social integration, 24, 25, 26, 29–30, 34, 150, 151, 152, 173, 175, 222, 230, 260n96, 288n9; socialization, 24, 25, 26, 30, 52, 150, 151, 175, 260n75, 260n96; society component, 22–23, 24, 25, 26–27, 29–30, 32–33, 34, 40, 47, 48–49, 50, 52, 57–58, 149, 150, 151, 152, 153, 162, 165, 167, 170, 172–75, 176, 217, 287n7; symbolic reproduction of, 10, 23–26,

Index 29–30, 31, 45–46, 54–56, 150, 152, 154, 168, 172–73; vs. system, 3, 4, 5, 45–51, 52, 149–50, 175–77, 290n48. See also civil society; political public sphere; private sphere; system/lifeworld interchange Locke, John, 271n111 Luckman, Thomas, 259n67 Luhmann, Niklas: autopoietic systems theory of, 35, 83–85, 116, 150, 156–57, 171–72, 180–90, 250, 262n139, 267n14, 278n40, 289n32, 292nn105,106, 293nn123,125, 295n152; on binary codes, 83–85, 156, 157, 171–72, 180, 181, 183, 188, 289n36, 292n106, 293nn125,127,128; on center and periphery, 180–81, 186–87, 288n28; on circulating symbols, 181–82; on communication across system boundaries, 183–86; vs. Habermas, 2, 7, 35, 83–85, 116, 150, 156–57, 171–72, 180–90, 260n95, 263n159, 267n14, 269n78, 289nn36,37, 292n105; on Habermas and legislation, 279n56; on idea of the constitution, 295n152; on irritation, 184, 187, 189–90; on legal system, 180, 184–85, 186–87, 289nn36,37, 293n121, 295n152; on operative closure vs. cognitive openness, 183–84; on programming, 294n139; on structural coupling, 184–86, 187–88, 190, 294n148; on subsystems, 84, 263n157; on system closure, 84 Lukács, Georg, 4, 54 MacCormick, Neil: on binary codes, 292n106; Institutions of Law, 188; on law as institutional normative order, 294n142 Marx, Karl, 2, 4, 12, 35; on capitalism, 3, 54; on crises in capitalism, 3, 54; on labor theory of value, 3; on real abstractions, 54 mass communications media, 307n312, 308n331; influence in political public sphere, 135–36, 160, 163, 164, 236, 237–40, 283n162, 307n313, 308n331; Internet, 140, 163, 238–39, 307n320 Maturana, Humberto: Autopoiesis and Cognition, 295n156

329

330

Index McCarthy, Thomas, 91, 262nn125,139, 263n159, 265n198, 266n228, 273n170, 274nn201,202 McMahon, Christopher, 271n120 Mead, George Herbert, 4, 29 media, steering, 38–45, 178–79, 265n187; money, 33, 36, 38–43, 44, 45, 47, 50–51, 52, 53, 56, 57, 69, 87–88, 151, 152, 153, 161, 167–68, 169, 170, 174, 183, 263n159, 264nn165,167,174; power, 33, 36, 41–43, 44, 45, 47, 50–51, 52, 53, 54, 56, 57, 58, 69, 84, 86–89, 149, 151, 152, 153, 155, 156, 166, 167–68, 169, 170, 174, 183, 264nn174,173, 266n229, 289n35; and real abstractions, 54; relationship to law, 56–57, 69–70, 149, 152, 156, 157, 174, 183, 268n51, 288n16; role in system integration, 33–34, 47, 48, 151, 155–56, 169–70, 288n9; role in system/lifeworld interchange, 47, 48, 59, 60, 87, 152, 153, 155–56, 161, 165, 167–68, 169, 175, 181; steering crises, 54 Mennonites, 211 Mertens, Thomas, 309n373 Michelman, Frank, 283n156; on attachment to idea of the constitution, 224–25; on constitutional patriotism, 224–27; vs. Habermas, 7, 90, 113, 131–35, 224–25, 226–27, 280n87, 281n111, 282nn142,149, 303n220; Law’s Republic, 133; on neorepublican theory of constitutional adjudication, 7, 131–35, 282n149 Modak-Truran, Mark, 278n48 modernity: communicative practice in, 257n12; development of bureaucratic state, 9, 27, 56; dissensus in, 16, 18, 33, 47, 60, 90, 151, 259n48; institutionalization of discursive practices in, 20; multicultural societies in, 90; process of differentiation in, 45–46; uncoupling of system and lifeworld in, 25, 40, 45–51, 151; as unfinished project, 5, 255n14 money: vs. language, 39–40, 264n167; as steering medium, 33, 36, 38–43, 44, 45, 47, 50–51, 52, 53, 56, 57, 69, 87–88, 151, 152, 153, 161, 167–68, 169, 170, 174, 183, 263n159, 264nn165,167,174 morality: moral agents, 29; moral discourse, 89, 91–92, 93, 94, 95, 102, 104, 127–28, 268n43; relationship to law, 64, 66–67, 79; and social evolution, 46,

265n189; universalization principle, 66–67, 89, 91–92, 94, 99, 127 moral norms: application of, 91–92, 94, 110–11; justification of, 91–92, 110–11; vs. legal norms, 66–67, 89, 92, 94, 95–96, 99, 127–28, 268n49, 269n60, 281n110, 289n36; normative rightness (Richtigkeit), 12, 14–15, 16–17, 19, 27, 42, 96, 256n12, 258n29 motivation crisis, 3 Müller, Jan-Werner: Constitutional Patriotism, 222–25; on constitutional patriotism, 222–25, 226–27, 303n207; on disagreement about constitutional essentials, 303n219; on object of attachment, 223–24, 303n213 multiculturalism: Barry on, 208, 211–15, 216, 219, 301nn148,150,157; Habermas on, 8, 192, 209, 212, 215–22, 227, 230, 241; Kymlicka on, 208–12, 216, 218, 219, 221 Murdoch, Rupert, 238 Neblo, Michael, 239 Netherlands: rejection of European constitution by, 231 New Zealand, 143 nongovernmental organizations (NGOs). See civil society Parsons, Talcott: AGIL schema of, 35–38, 263n156; on collective goals, 42; culture/ society/personality schema of, 22, 26–27, 172; on general action system, 37, 38, 263n156; vs. Habermas, 4, 9, 22, 26–27, 31, 35, 38, 39–45, 47, 53, 59, 69, 84, 167–68, 172, 260n95, 263n159, 264nn174,175, 292n99; on influence, 36, 38, 43–44, 168, 263n159, 292n99; interchange paradigm of, 35–38, 53, 167–68; on money, 36, 38, 39, 40–41, 47, 264n174; on power, 36, 38, 41, 42, 47, 264nn174,175; social systems theory of, 35–38, 262n139, 263n156; on valuecommitment, 36, 38, 43–44 penal procedure, 23 personhood, legal, 29, 69–70, 71, 79–80 Peters, Berhard, 154, 288n28, 293n112 Peterson, Victor, 118, 277n28, 279nn54,68 phenomenology, 9, 20–21, 150, 172, 176, 259n58

philosophy of law, 280n68 pluralistic societies, 108, 125, 132 Poland and Treaty of Lisbon, 231, 305nn268,274 political parties, 155, 164, 166, 178, 236, 288n31 political public sphere, 101, 149, 174–75, 290n48, 298n87; as absent in EU, 233–35, 249, 306n278, 308n332; vs. artistic/literary sphere, 53; and basic rights, 162; citizen role, 52, 53, 54, 55; client role, 52, 53, 55–56; and democracy, 162–63; formation of public opinion, 160, 164, 169, 307n313; influence of mass media in, 135–36, 160, 163, 164, 236, 237–40, 283n162, 307n313, 308n331; interchange with administrative system, 51–52, 53, 58, 59, 165, 168; as productive of legitimate law, 85, 129, 131, 152–53, 154; and real abstractions, 54; relationship to center of political system, 159–60, 166–67, 169, 170, 179, 181, 182, 188–89, 190, 233, 235–36, 250; relationship to civil society, 102, 160–63, 164, 168–69, 179, 181, 188, 189, 233, 235–36, 250, 293n116; role of mass loyalty in, 52, 53, 54, 58, 88, 136, 154, 168; role of taxes in, 52, 53, 88, 168. See also religion political system: boundaries of, 156, 165–67, 170, 176–77, 179–80, 181–82, 189, 289n36, 292n90; center of, 155–57, 159–60, 163–64, 165–67, 169, 170–71, 176, 177–79, 181, 182, 188–89, 190, 233, 235–36, 250, 288n31, 292n90, 293n115; customers vs. suppliers in, 158–59, 166, 179, 236; influence of public opinion on, 160, 164, 167, 169, 170, 188, 190, 233, 235, 292n90; inner periphery of, 155, 157–58, 166, 177, 290n43; outer periphery of, 155, 157, 158–59, 166, 179–80, 236, 290n43, 291n85 popular sovereignty: and basic rights, 7, 63–65, 73, 82, 269n73; informal discussion vs. governmental decisions in, 100–101; relationship to communicative power, 86, 100–101, 102; relationship to legitimate law, 64–66, 67–68, 73–74; and republicanism, 129 Posner, Richard, 283n156 Post, Robert, 144

Index postmetaphysical thinking, 201, 202, 273n172, 298n73 postmodernity, 5 postnational constellation, 192, 227–29, 240–41 power: administrative power, 83, 85–89, 95–105, 116–17, 128, 129, 133, 136, 149, 152, 153, 154, 155, 159–60, 169, 171, 182, 274n199, 307n308; as command, 14–15, 16–17, 42, 58, 59, 84, 85, 86, 88, 153, 156, 166, 170–71, 264n174, 289n35; communicative power, 83, 85–89, 95–102, 103, 104, 105, 116–17, 128, 129, 133, 149, 152, 155, 159–60, 164, 169, 171, 176, 182, 237, 266n229, 274n199, 307n308; legitimation of, 42, 43, 58, 236–37; of media, 237–40; as social and economic, 130, 137, 140, 147, 162–63, 164, 237, 283n162, 284n170, 291n71; as steering medium, 33, 36, 41–43, 44, 45, 47, 50–51, 52, 53, 54, 56, 57, 58, 69, 84, 86–89, 149, 151, 152, 153, 155, 156, 166, 167–68, 169, 170, 174, 183, 264nn174,173, 266n229, 289n35 pragmatic discourses, 89, 95, 96, 102, 104–5, 121, 127–28 pragmatics, formal, 11–12, 14 preconventional/conventional/ postconventional levels, 46, 265n189 Preuss, Ulrich, 268n42 principles: balancing of, 125–26; vs. rules, 110–12, 125–27; vs. values, 121, 125–26, 128 private autonomy: and categories of basic rights, 69–73, 129, 131; and legal personhood, 69–70; and liberal model of democracy, 129, 235; vs. public autonomy, 7, 63–66, 67–68, 72–73, 76–77, 80, 81, 129–30, 132, 235 private sphere: as civil society, 149; consumer role, 52, 53, 54, 55, 161; employee role, 52, 53, 55, 161, 266n219; interchange with economic system, 51–52, 53, 59, 168; real abstractions, 54; relationship to political public sphere, 159, 160–62 procedural model of constitutional adjudication, 120, 129–47, 147, 224–25 proportional representation, 137–38, 209, 283n167, 284n168

331

332

Index Protestantism, 204 psychoanalysis, 2 public autonomy, 76, 129, 132; and first category of basic rights, 70–71; and fourth category of basic rights, 72–73; vs. private autonomy, 7, 63–66, 67–68, 72–73, 76–77, 80, 81, 129–30, 132, 235; and republican model of democracy, 129, 131, 235; and second category of basic rights, 71–72; and third category of basic rights, 71–72 public opinion: formation of, 160, 164, 169, 237, 307n313; influence on political system, 160, 164, 167, 169, 170, 188, 190, 233, 235, 292n90 public reason: exclusive view of, 194; inclusive view of, 194–95; Rawls on, 102, 193–95, 196, 198, 199, 200–201, 202–5, 206–7, 208, 270n87, 284n170, 296nn11,22,25, 300n118 public sphere See global public sphere; political public sphere Quakers, 296n22 rationality: communicative rationality, 3, 18–20, 26–30, 40, 44, 168, 236; rational choice theory, 16, 18; rational discourse, 30, 68–69, 76, 89, 92, 94, 156; rationality crisis, 3; rationalization of lifeworld, 25, 26–30, 33, 45, 47, 56, 58, 60, 61, 66, 68, 150–51, 168, 173; rules of rational choice, 10, 15–16; types of rational action, 10, 256n1; Weber on rationalization, 4, 20, 26–28, 173, 261n108. See also communicative action; instrumental action; strategic action Rawls, John: on basic needs, 77, 270n99; on comprehensive doctrines, 193, 194–95, 196, 199, 200, 202, 204, 270n87, 295n3, 296n22, 297n26, 298n89; on concept of person as normative, 78–80; on consensus regarding justice, 193; on constitutional essentials, 77, 102, 193–94, 195, 207, 270n99, 275n214, 296n25; on constitutional stage, 78, 81; on declaration, 196; on democracy, 76, 78–79; on difference principle, 77, 270n99; on equal basic rights and liberties, 76, 77, 80–81, 138, 140, 270n97, 284n170, 295n10; vs.

Habermas, 6–7, 8, 76–82, 101–2, 192, 200–208, 271nn111,120, 274n203, 296n25, 298n89, 299n95, 309n354; “The Idea of Public Reason Revisited”, 195; on judicial stage, 78, 81; on legislative stage, 78, 81; liberalism of, 80, 101–2, 199–200, 208, 274n203, 275n210; on liberties of moderns, vs. liberties of ancients, 76, 80–82, 271nn111,114; on matters of basic justice, 102, 194, 195, 207, 275n214, 295n10; on modus vivendi, 204, 299n100; on original position, 6–7, 76, 78, 80, 81–82, 270nn85–87, 274n203; on political conception as module, 204; Political Liberalism, 78, 193, 284n170; on principle of fair opportunity, 270n99; on principles of justice, 6–7, 76, 78, 80, 81, 270n87; on public funding of campaigns, 138; on public reason, 102, 193–95, 196, 198, 199, 200–201, 202–5, 206–7, 208, 270n87, 284n170, 296nn11,22,25, 300n118; on reasonable pluralism, 193, 194, 204, 207, 270n87; on religion, 8, 191, 193–95, 196, 198, 199–201, 202–5, 206–7, 208, 296nn22,25, 300n120; on social-welfare rights, 77; Theory of Justice, 76; on veil of ignorance, 76, 270nn86,87, 275n203; on well-ordered society, 194, 296n15 reconstructive analysis, 11, 16, 76, 79–80, 82, 101, 105, 119, 132, 148, 154, 163–64, 250, 256nn10,12, 271n108, 281n110; of constitutional state, 93, 97, 99, 103, 145–47, 190; as nonutopian, 61–62, 97, 148 reference systems: humanity, 66, 67, 89, 94, 95, 127, 269n60; legal community, 66–67, 76, 81, 89, 90, 94, 95, 146, 269n60, 273n170 Rehg, William, 263n159, 268n50, 293n115 reification, 4 religion: Audi on, 193, 195–97, 198, 199–200, 201, 207, 208, 296nn23,24; and democracy, 197–98, 199, 201–2, 204, 206–8; free exercise of, 200, 201, 203; Habermas on, 8, 191, 200–206, 207–8, 271n108, 273n172, 296n25, 298nn84,87, 299nn94,95,98, 300n120; Rawls on, 8, 191, 193–95, 196, 198, 199–201, 202–5, 206–7, 208,

296nn22,25, 300n120; Weithman on, 193, 196–99, 201, 207–8, 296n24, 297n39, 299n94, 300n122; Wolterstorff on, 193, 198–200, 201, 202–3, 208, 296n25, 298n66, 299n94 republicanism, civic, 7, 80, 90, 130–35, 260n96, 282nn132,149, 305n261; model of constitutional adjudication, 120, 129, 131–35; and Rousseau, 271n111 rights: actionability of, 71; collective rights, 208–9, 215–17, 218–22, 301n168; human rights, 129, 225, 244–45; immigration/emigration rights, 72; individual rights, 209, 216, 219–20, 302n170; negative rights vs. positive rights, 120; right of assembly, 162, 190; right of association, 80, 162, 190; right of free press, 162, 190; right of free speech, 162, 163, 190; right to equal liberties, 65, 66, 70–71; right to privacy, 68, 268n42; social and ecological rights, 75, 77, 81, 120, 130, 146–47, 287nn212,213. See also system of rights/ categories of basic rights Rocher, Guy, 263n156 Rosenfeld, Michael, 273n172 Rousseau, Jean-Jacques: vs. Habermas, 64–66, 80, 90; on popular sovereignty, 64–66; and republicanism, 271n111; social contract theory of, 64 Scalia, Antonin, 122, 142, 280n76 Schelling, Friedrich Wilhelm Joseph von: on nature, 2 Schlink, Bernhard, 280n73 Schutz, Alfred: vs. Habermas, 20–21, 31, 172; on lifeworld, 20–22, 31, 150, 172, 176, 259nn66,67, 260n75; on stock of knowledge, 22; Strukturen der Lebenswelt, 259n67 science, 27, 29, 57, 204, 205–6, 259n58, 299n112; scientific discourse, 99; scientific research, 20; Supreme Court decisions regarding, 185–86, 294n147 Searle, John, 3 secular citizens: requirements on, 205, 207 Siegel, Reva, 144 Sikhs, 212–13, 217, 218 Smelser, Neil, 38 Smith, Adam, 35

Index social and ecological rights, 75, 77, 81, 120, 146–47, 287nn212,213 social and economic power, 130, 137, 140, 147, 162–63, 164, 237, 283n162, 284n170, 291n71 social complexity, 32, 33, 58, 62 social crises: colonization of lifeworld, 10, 55–57, 154, 156, 157, 168, 173, 177, 266n216, 288n27, 290n48; in symbolic reproduction, 4–5, 24–26, 54–57 social crisis theory, 3, 4–5, 168 social evolution, 4, 9, 46 social pathologies, 24–26, 54–57, 168 social stratification, 92 Solum, Lawrence B., 280n79 Specter, Arlen, 143, 286n201 speech acts: Austin on, 3, 258n28; constative utterances, 12; expressive utterances, 12; normatively authorized requests, 14–15, 16–17, 42–43; regulative utterances, 12, 13; relationship to communicative action, 11, 13; simple imperatives, 14–15, 16–17, 19, 42–43. See also validity of speech acts Staats, Joseph: on corporate power, 283n162, 308n331 steering media. See media, steering strategic action: and avowability of parties’ intention, 13–14; and bargaining, 93–94, 274n189; vs. communicative action, 10–18, 42, 49–50, 51, 60, 61, 93, 259n45, 274n189, 287n6; as concealed, 13–14, 33, 257nn27,28, 274n189; and formal pragmatics, 11–12, 14–15, 258n29; lifeworld as background for, 287n6; objectivating attitude in, 17–18, 48, 61; as open, 13, 14–18, 93, 258n38; orientation toward success in, 10–11, 31; and rational choice, 15–16; relationship to material reproduction of lifeworld, 31–32, 33; relationship to norms, 31; role of causal influence in, 13–14; role of competition in, 15–16; and simple imperatives, 14–15, 16, 19; and speech acts, 11; spheres of, 15, 68 Sunstein, Cass, 131; on canons of interpretation, 113, 278n45; on deliberation, 240 system: administrative system, 4, 5, 9, 10, 25, 33–34, 35, 38, 45, 46, 48, 49, 50, 51, 54, 55–56, 57, 58, 59, 68, 86–89,

333

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Index system: administrative system (continued) 149, 151, 152, 153, 154, 155, 156, 157, 161, 165–66, 167–68, 170, 175, 183, 266n228, 288n27; as colonizing lifeworld, 10, 55–57, 154, 156, 157, 168, 173, 177, 266n216, 288n27, 290n48; and consequences of self-interested action, 4, 9, 32, 33–34, 40, 51; development of, 9, 33–34, 56; differentiation of systems, 45, 47, 49, 151, 264n187; economic system, 4, 5, 9, 10, 25, 33–34, 35, 38, 45, 46, 48, 49, 50, 51–52, 54, 56, 57, 59, 68, 87, 151, 153, 154, 155, 158, 161, 167–68, 170, 175, 183, 263n159, 288n27, 290n41, 292n111; vs. lifeworld, 3, 4, 5, 45–51, 52, 149–50, 175–77, 290n48; as norm free, 34, 48, 49, 50, 175–76; relationship to capitalism, 4, 9, 34, 47, 265n187; relationship to law, 23, 34, 40, 51, 56–57, 69–70, 149, 152–53, 156, 157, 170, 174, 183, 268n51, 288n16; role of formal organizations in, 48–49, 50–51, 56; as uncoupled from lifeworld, 25, 35, 40, 45–51, 151. See also media, steering; system/ lifeworld interchange system/lifeworld interchange, 9, 10, 26, 43, 148; vs. circulation of power model, 154, 155, 165–77, 179; role of private sphere in, 51–52, 149, 154; role of public sphere in, 51–52, 149, 152–53, 154; role of steering media in, 47, 48, 59, 60, 87, 152, 153, 155–56, 161, 165, 167–68, 169, 175, 181, 265n193; systemstheoretical model of, 47, 50, 51–59, 87–88; uncoupling of system and lifeworld, 25, 35, 40, 45–51, 151. See also media, steering system of rights/categories of basic rights, 6–7, 63–75, 98, 129, 147, 270n88; and constitutional state, 63, 73; and discourse principle, 68–69, 70–75, 79, 81–82; fifth category of rights, 75, 77, 81, 120, 146–47; first category of rights, 70–71, 76–77, 81, 120; fourth category of rights, 72–73, 77, 81, 120; and legitimate law, 63, 64–66, 67–68, 73, 73–74, 81–82, 120, 145; as mediating tension between basic rights and popular sovereignty, 63–64, 73–74; as mediat-

ing tension between private and public autonomy, 63–64, 73–74; and private autonomy, 69–73, 129, 131, 145–46; and public autonomy, 69–73, 129, 131, 145–46; second category of rights, 71–72, 76–77, 81; third category of rights, 71–72, 76–77, 81; as unsaturated, 71, 78, 120, 145, 269n81 Teubner, Gunther, 293n123; on binary codes, 295n152; on legal practice, 281n109; “Rethinking Legal Pluralism”, 187–88, 294n150 Tinnevelt, Ronald, 309n373 transnational negotiation systems, 242, 246–47, 248–49, 250, 308n352, 309n373, 310n376 Tushnet, Mark, 286n196, 287n202; on social and economic rights, 287n213; on strong-form vs. weak-form judicial review, 143–44 Tweedy, John, 266n222 unconscious deception, 257n27 United Kingdom, 143; and Treaty of Lisbon, 231, 305nn268,274 United Nations: Charter, 244, 248; General Assembly, 245, 248; Human Rights Commission, 244; peacekeeping operations, 244, 245, 248, 309nn362,371; reorganization of, 244, 245, 246, 247–48, 248, 249; Security Council, 244 United States: abolitionist movement, 194–95, 199; affirmative action in, 216, 301n168; African Americans, 197, 215; Bipartisan Campaign Reform Act (BCRA)/McCain-Feingold, 139–40, 284n175, 285n178; campaign finance in, 137–40, 284nn170,175, 285nn176–78; civil rights movement, 194–95, 198, 298n84; common-law adjudication in, 102–4, 119; constitutional law in, 7, 75, 121–24, 132, 133–35, 136, 137–42, 143, 144, 145, 185–86, 209–10, 213–14, 219–20, 225, 227, 280n76, 286n194, 287n213; vs. Germany, 118, 130, 147; and ICC, 244; Iraq invasion, 8, 237; mass media in, 237–38; national minorities in, 211;

Native Americans, 209, 211; PACs in, 139; redistricting in, 7, 138, 140–42, 285nn181–83, 286nn187,189,193; religion in, 197–98, 199, 201; two-party framework in, 101; Voting Rights Act, 137, 209. See also United States Constitution; United States Supreme Court United States Constitution: Bill of Rights, 305n273; First Amendment, 136, 139, 283n161; Fourteenth Amendment, 286n194; Fourth Amendment, 122–24; ratification of, 305n273; and redistricting, 285n182 United States Supreme Court: Boumediene v. Bush, 286n201; Bowers v. Hardwick, 133–35; Brown v. Board of Education, 286n194; Buckley v. Valeo, 284n170; Citizens United v. FEC, 138–40, 283n161, 285n177; City of Boerne v. Flores, 286n194; Daubert v. Merrell Dow Pharmaceuticals, Inc., 294n147; Davis v. Bandemer, 285n186; decisions regarding corporate speech/campaign finance, 7, 138–40, 284nn170,175, 285nn177,178; decisions regarding insanity, 185, 294n146; decisions regarding legal vs. scientific inquiry, 185–86, 294n147; decisions regarding race-conscious districting, 209–10, 300n132; decisions regarding redistricting, 7, 141–42, 209–10, 300n132; decisions regarding third parties, 283n167; First National Bank v. Bellotti, 284n170; Justice Scalia, 122, 142, 280n76; Kansas v. Hendricks, 294n146; Kyllo v. United States, 122–24; LULAC v. Perry, 286n188; McConnell v. FEC, 284n175; Miller v. Johnson, 300n132; Reynolds v. Sims, 138; Shaw v. Reno, 300n132; subordinate rules fashioned by, 121–24; Thornburg v. Gingles, 300n130; Timmons v. Twin Cities Area New Party, 283n167; United States v. Carolene Products Co., 283n151; United States v. Morrison, 286n194; Vieth v. Jubelirer, 286n187; Yoder v. Wisconsin, 213–14, 219–20, 301nn151,152 validity vs. facticity, 6, 17, 62–64, 73–74, 82, 107–10, 116, 267nn10,14, 269n74

Index validity of speech acts: normative rightness (Richtigkeit), 12, 14–15, 16–17, 19, 27, 42, 96, 256n12, 258n29; propositional truth, 12, 27, 256nn11,12, 258n29; sincerity (Wahrhaftigkeit), 12, 27, 256n12, 258n29; validity claims as criticizable, 12–13, 15, 16–17, 18–19, 40, 43, 257n19 Varela, Francisco: Autopoiesis and Cognition, 295n156 Vietnam War, 243 wage labor, 47, 59; commodification of, 54 Weber, Max: on democracy, 29, 261n113; vs. Habermas, 4, 5, 10, 20, 26–28, 29, 61, 116, 256n1, 289n37; on occidental rationalism, 256n1; on political legitimacy, 5; postulate of social-scientific value-freedom, 27–28; on Protestant ethic of labor, 26, 27, 261n108; on rationalization, 4, 20, 26–28, 173, 261n108; on social vs. ideal validity, 61; on social vs. nonsocial action, 10; on sociology of law, 5, 61; theory of action, 28 Weithman, Paul J.: on Catholic Church, 197–98, 297n46; on Rawls, 296n25; on realized citizenship, 197; on religion, 193, 196–99, 201, 207, 207–8, 296n24, 297n39, 299n94, 300n122 welfare-state services, 55–56, 67; basic rights regarding, 75, 77 Whittington, Keith, 144 Wolterstorff, Robert: on religion, 193, 198–200, 201, 202–3, 208, 296n25, 298n66, 299n94 World Bank, 246 world government/world state, 192, 228, 242, 245–46, 248, 251, 308n353, 309n367 World Trade Organization, 246 Young, Iris, 301n157 Zeit, Die, 5 Zurn, Christopher: on constitutional review, 144–45; on constructive interpretation, 279nn66,85; on justification and application, 123

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Jurists: Profiles in Legal Theory general editor

William Twining Thomas Garden Barnes, edited and with an introduction by Allen D. Boyer, Shaping the Common Law: From Glanvill to Hale, 1188–1688 William E. Conklin, Hegel’s Laws: The Legitimacy of a Modern Legal Order Neil MacCormick, H. L. A. Hart, Second Edition Wouter de Been, Legal Realism Regained: Saving Realism from Critical Acclaim John Dinwiddy, edited by William Twining, Bentham: Selected Writings of John Dinwiddy Allen D. Boyer, Sir Edward Coke and the Elizabethan Age Colin Imber, Ebu’s-su’ud: The Islamic Legal Tradition Edited by Robert W. Gordon, The Legacy of Oliver Wendell Holmes, Jr.